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2024
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[2024] ZAECBHC 31
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G.T obo G.N v MEC for Health, Eastern Cape (634/2021) [2024] ZAECBHC 31 (3 September 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – BHISHO)
Reportable/
Not
Reportable
Case
no.:634/2021
Matters
heard on: 27 August 2024
Judgment
delivered on: 03 September 2024
In
the matter between:
G[…]
T[…] obo G[…]
N[…]
Applicant
and
MEC
FOR HEALTH, EASTERN
CAPE
Respondent
JUDGMENT
BRODY
AJ
1.
This is an application for condonation for the late service of a
section 3(4)(a)
notice in terms of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“the
Act”).
2.
The applicant is Ms G[…] T[…] (“Ms G[…]”)
who
has instituted an action in her and in her representative
capacity as the biological mother and natural guardian of her minor
daughter
N[…] G[…] (“the minor child’).
3.
During June 2012 Ms G[…] was admitted to Frontier Hospital,
East London,
Province of the Eastern Cape. During her stay at the
hospital and on the 16
th
of June 2012 the minor child was
born and thereafter (the details of which are not given) it was
discovered that the minor child
suffered from brain damage, spastic
cerebral palsy, mental retardation, uncontrolled epilepsy, foetal
distress, and right hemiplegia
due to a birth asphyxia.
4.
Summons was issued against the Member of the Executive Council for
Health, Eastern
Cape Provincial Government, on the 18
th
of
August 2021 after Ms G[…]’s attorneys had given notice
in terms of section 3 of the Act on the 27
th
of May 2021.
5.
In Ms G[…]’s particulars of claim she stated the
following in regard
to the section 3 notice:
“
10.
Prior to the institution of these proceedings, plaintiff duly
complied with the provisions of
section 3
of the
Institution of Legal
Proceedings Against Certain Organs of State Act, Act
40 of 2002, and
all relevant prescribed periods have lapsed, alternatively, by virtue
of N[…]’s minority at the time
of the accrual of the
cause of action, the period of prescription is postponed or
completion of prescription delayed, in terms
of the provisions of the
Prescription Act, No 68 of 1969
, further alternatively, plaintiff
will apply for condonation of the late notification of the claim.”
6.
In the defendant’s plea, a special plea was raised, which
related to the
delay in serving the
section 3
notice and based on the
pleaded allegation that the “
cause of action arose on the
17
th
of June 2012
”.
7.
This special plea was served and filed on the 2
nd
of March
2022.
8.
The application for condonation was served and filed on the 21
st
of August 2024, two and a half years, after the issue of condonation
being raised by the defendant in the plea.
9.
Ms G[…] describes herself in her founding affidavit as “
an
adult female police officer
” and states the following about
her knowledge of legal affairs:
“
12.
I am a lay person in respect of legal matters and legal issues. I
accepted that the staff at the hospital,
where I was admitted at the
time of labour, knew what they were doing and acted appropriately.
13.
My mother who helped me take care of my baby suggested I take the
matter up as she suspected
foul play in the management of my child’s
birth.
14.
She suggested that I contact Ndlebe Msuthu Incorporated Attorneys, a
firm of attorneys,
to get an opinion regarding my suspicions. She
gave me her attorney’s contact details. I contacted the number
she gave me
and I was able to make an appointment with the attorney.
15.
On 25 May 2021, I then consulted with Mr Ndlebe of Ndlebe Msuthu
Incorporated and gave him
the history of my pregnancy, labour and
delivery of my child as well as the fact that my child has symptoms
of underdevelopment
or cerebral palsy. I was advised that the medical
staff at the hospital were negligent in caring for my baby.”
10.
And further at paragraph 20 she stated the following:
“
20.
I am a lay person with regard to legal matters and medical issues. As
indicated above, I did not believe
that the hospital staff had
anything to do with the outcome of my baby. I accepted it as an
unavoidable fact following a complicated
labour.”
11.
Unlike other matters of this nature, Ms NG[…] did not claim
any sum of money in her
personal capacity, and only claimed damages
in respect of the minor child.
12.
The application for condonation was not opposed by the defendant in
this application.
13.
In argument I requested Mr Mlalandle to furnish short heads of
argument in regard to the
reason why there was such an inordinate
delay in bringing the condonation application before court. It is
trite that applications
for condonations should be brought
immediately when it is apparent that condonation is required, without
any further delay. If
there is a delay, full reasons need to be given
for the delay.
14.
The day after the matter was argued, a supplementary affidavit was
served and filed in which
Mr Mfundiso Ndlebe, Ms G[…]’s
attorney, explained the delays in the matter.
15.
The following explanation was given:
“
After having
received the defendant’s plea, our offices immediately made
discovery in terms of
rule 35
, the respondents also filed their
discovery affidavit. Following that a request for further documents
in terms of
rule 35(3)(6)
was made to the respondents which led to an
application to compel having been brought to this Honourable Court on
22 November 2022.
I attach hereto such court order and I have marked
same annexure “A”.
11.
Following the
non-compliance with the above court order the applicant thereafter
moved an application to strike out the defence
of the respondent. The
respondent thereafter requested removal of the application and
provided the documents which were crucial
for our case. I attach
hereto such court order and I have marked same as annexure “B”.
12.
I must mention to this
Honourable Court that we could not proceed with a further
consultation with our client without having obtained
clinical records
which were in possession of the respondent. The documents were only
brought to us on 23 January 2023.
13.
I submit that the
delay was for purposes of gathering further information in order to
establish whether we have a proper case against
the respondent and
thereafter file a reply to the respondent’s special plea and/or
apply for condonation for failure to comply
with the provisions of
section 3
of Act 40 of 2002.
14.
In the circumstances
it is my respectful contention that the requirements for an
application for condonation have been met and that
the applicant has
made out an appropriate case on the papers and it will be appropriate
for the above Honourable Court to grant
an order in terms of the
relief sought by the applicant in the notice of motion.”
16.
I am grateful to Mr Mlalandle for his short heads of argument which
deals with the issues
of the delay.
17.
Section 3(4)(b) of Act 40 of 2002 (“the Act”) sets out
the requirements that
the court may grant for an application of
condonation:
“
The court may
grant an application for failure to serve notice if it is satisfied
that –
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor; and
(iii)
the Organ of State was not unreasonably prejudiced by the failure.”
18.
I agree with Mr Mlalandle that the claim by Ms NG[…], on
behalf of the minor child,
has not prescribed.
19.
The issues for consideration are fully set out in
Madinda vs
Minister of Safety & Security
2008(4) SA312 (SCA) where the
principal is set out that a full explanation must be given for the
delay.
20.
I am further in agreement with Mr Mlalandle that the respondent will
not suffer any unreasonable
prejudice because:
20.1
the application was not opposed by the respondent;
20.2
the statutory notice was dispatched as early as the applicant was
aware of her claim;
20.3
after the issuing of summons, the respondent’s special plea and
plea-over dealt extensively with the
relevant issues;
20.4
the respondent had in fact delayed the furnishing of the clinical
records for the applicant to consider her
prospects of success; and
20.5 on
the face of the pleaded case, the applicant appears to have good
prospects of success.
21.
This court as upper guardian of minor children is also required to
consider the best interests
of the minor child and especially in
circumstances where the minor child is unable to advance her own
case, and submit her own
claims.
22.
I am satisfied with the reasons furnished by Ms G[…]’s
attorneys for the delay
in bringing the application for condonation
and a decision to grant condonation by this court will not bind the
trial Judge in
due course.
23.
In the result, the following order will issue:
1.
Condonation is granted for the late filing of the notice in terms of
section 3(1)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
.
2.
That there is no order as to costs.
B.B. BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant
: Adv.
Mlalandle
Instructed
by
: Ndlebe
Msuthu Inc.
c/o S. Booi & Sons
Attorneys
50 Stewart Drive
Berea
EAST LONDON
(Ref.:
S173/10/17)
Counsel
for the Respondent
: No
Appearance
:
The State Attorney
c/o
Shared Legal Services
Office
of the Premier
32
Alexander Road
KING
WILLIAM’S TOWN
(Ref.:
779/21 – P3 (Mr Mgujulwa)