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2024
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[2024] ZAECMKHC 76
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Manziya v Member of the Executive Council Department of Health Eastern Cape and Another (950/2012) [2024] ZAECMKHC 76 (9 July 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NUMBER.:
950/2012
In the matter between:
NKULULEKO
NATHANIEL MANZIYA
Plaintiff/Respondent
And
MEMBER
OF THE EXECUTIVE COUNCIL,
First Defendant/Applicant
DEPARTMENT OF HEALTH,
EASTERN CAPE
MEDICAL
SUPERINTENDENT, SETTLERS
HOSPITAL,
MAKHANDA
Second Defendant/Applicant
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
Beshe
J
[1]
On 4 November 2009 plaintiff’s left leg was amputated above the
knee at the Kariega Provincial Hospital. He instituted
an action for
damages against the defendants on the basis that the amputation
occurred as a result of negligence on the part of
first defendant’s
employees’ negligence at both Settlers Hospital, Makhanda and
Kariega Provincial Hospital. At the
conclusion of the trial, I
entered judgment in plaintiff’s favour and found that the
defendants were liable for such damages
as plaintiff may prove that
flow from the amputation of his leg. I also dismissed defendants’
special plea.
[2]
The defendants are seeking leave to appeal against the said judgment.
[3]
Defendants’ special pleas inter alia raised the point that
plaintiff amended his particulars of claim to include allegations
relating to negligence by Kariega Provincial Hospital personnel. This
was irregular as it did not comply with Rule 28. Secondly,
that
plaintiff’s claim in respect of the alleged negligence at
Kariega Provincial Hospital had prescribed as it amounts to
a new
cause of action.
[4]
I dismissed the special pleas on the basis inter alia that there was
no claim against Kariega Provincial Hospital even though
medical
negligence is alleged against the hospital’s staff.
[5]
Regarding the merits, it is submitted that I misdirected myself by
accepting plaintiff’s evidence in support of his case.
On the
basis that there were contradictions between the plaintiff’s
evidence and that of his wife. Further, that there were
internal
contradictions in their respective testimonies, and this called for
the rejection of their evidence. Especially when viewed
in
conjunction with defendants’ evidence, so it was argued.
Defendants further take issue with the fact that I found that
not
much weight could be attached to Dr Megafu’s statement because
it was not subjected to cross-examination.
[6]
In a nutshell, it was argued that there are reasonable prospects of
another court finding that the plaintiff did not succeed
in proving
his claim on a balance of probabilities.
[7]
Plaintiff, on the other hand, argued that the appeal did not enjoy
reasonable prospects of success in that the court had correctly
dismissed the special pleas. This on the basis that there was no
allegation that there was an intervening act or that the actions
/
omissions of the personnel at Kariega Provincial Hospital introduced
an intervening act. As far as the merits are concerned,
that the
court could not view the contradictions in plaintiff’s evidence
in isolation and they were therefore not such that
they warranted
plaintiff’s evidence. The court’s attention was also
drawn to the trite principle that an appellate
court will not readily
interfere with a court’s credibility findings. This is however
not an inflexible rule/principle. It
is also trite that where the
credibility finding is clearly wrong, the appellate court will
interfere with such finding.
[1]
[8]
That being the case, I am unable to find that the appeal will in
these circumstances not enjoy reasonable prospects of success.
[9]
Accordingly, the defendants are granted leave to appeal against the
judgment and order I rendered on 28 November 2023 to the
Full Bench
of the Eastern Cape High Court. Costs to be costs in the appeal.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff/Respondent
:
Adv: JD LE ROUX
Instructed
by
F
A SWANEPOEL ATTORNEYS
C/o
DULLABH ATTORNEYS
5
Bertram Street
MAKHANDA
Ref:
Mr NN Dullabh / Mr M Wolmarans
Tel.:
046 – 622 6611 / 9966
For
the Defendants/ Applicant
Adv:
Boswel
Instructed
by
OFFICE
OF THE STATE ATTORNEY
C/o
WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref.:
Mr. G Barrow/gdp/C09289
Tel.:
046 – 622 7117
Date
Heard
: 21
February 2024
Date
Reserved
: 21
February 2024
Date
Delivered
: 9
July 2024
Judgment
handed down electronically by circulation to the parties’ legal
representatives via email and release to SAFLII.
The
date and time of handing down of the judgment is deemed to be 11h30
on the 9 July 2024.
[1]
See
R v Dlumayo and Another
1948 (2) SA 677
(A) at 706; Muster Estates
(Pty) Ltd v Killimey Hills (Pty) Ltd
1979 (1) SA 621
at 623; Santam
Bpjk v Biddulp
[2004] 2 All SA 23
(SCA) at 25 paragraph [5].