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[2016] ZACC 16
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Member of the Executive Council for Health, Gauteng v Lushaba (CCT156/15) [2016] ZACC 16; 2016 (8) BCLR 1069 (CC); 2017 (1) SA 106 (CC) (23 June 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 156/15
In the matter between:
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH,
GAUTENG
Applicant
and
VUYISILE EUNICE
LUSHABA
Respondent
Neutral citation:
MEC for Health, Gauteng v Lushaba
[2015]
ZACC 16
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Nkabinde J and Zondo
J
Judgments:
Jafta J (unanimous)
Decided on:
23 June 2016
Summary:
Constitution — Section 165 —
Judicial authority vested in courts — One cannot be a judge in
their own matter —
Court not competent to authorise party to
litigation before it to exercise judicial authority
Constitution — Section 34 — right to fair hearing —
no one should be condemned without a hearing
ORDER
On appeal from the order of
the Gauteng Local Division of the High Court:
1.
Leave to appeal is granted.
2.
The order issued by the Gauteng Local Division of the High Court on
26 November
2014 is set aside.
3.
The appeal against the order of 16 October 2014 on the merits of the
case is
dismissed.
4.
Paragraph 136 of the order of 16 October 2014 is set aside
JUDGMENT
JAFTA J (Mogoeng CJ,
Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Khampepe J,
Madlanga J, Mhlantla J, Nkabinde J and Zondo
J concurring)
[1]
This
application for leave to appeal is directed at two consecutive orders
issued by the Gauteng Local Division of the High Court.
The
applicant seeks leave to appeal against the main order in terms of
which, as a nominal defendant, he was held liable for 100%
of the
plaintiff’s damages, arising out of the wrongful birth of the
plaintiff’s son at a state hospital. With
regard to the
ancillary order on costs, the applicant is asking for permission to
challenge it on the ground that it was improperly
issued.
[2]
The
application is opposed by the respondent who complains about the
delay in lodging the application in this Court, following the
dismissal of the petition by the Supreme Court of Appeal. After
the dismissal of the petition on 28 April 2015, the applicant
applied
for reconsideration of the order in terms of section 17(2) of the
Superior Courts Act.
[1]
This application was dismissed on 3 August 2015.
The current application was lodged in this Court on 25 August 2015.
The matter was decided without oral hearing, after submissions by the
parties.
[3]
The
applicant is the Member of Executive Council for Health, Gauteng
(MEC). The respondent is Ms Vuyisile Eunice Lushaba,
in whose
favour the impugned orders were granted. Ms Lushaba instituted
a damages claim in the High Court, arising from medical
negligence at
the hands of officials in the employ of the MEC. The MEC
defended the action.
[4]
Having
heard evidence from both parties the trial Court held that the MEC
was liable for Ms Lushaba’s damages. That
Court
disapproved of the manner in which the MEC’s defence was
presented, and queried the decision taken to defend the action
and
how that decision was taken. The Court found that the defence
advanced to the effect that the MEC’s employees were
not
negligent was devoid of any merit and that the decision to defend was
taken without perusal of crucial documents which established
negligence.
[5]
Consequently, on 16 October 2016 the trial Court
ordered the MEC to pay costs of the action on attorney and client
scale.
But unusually, and having ordered the MEC to pay all the
costs on a punitive scale, the trial Court issued a further order in
these
terms:
“
A
rule
nisi
issues,
calling upon the defendant to show cause on Tuesday 28 October
2014 at 10h00 why he should not be held liable personally
de
bonis propriis
on the attorney and
client scale, jointly and severally with the defendant on attorney
and client scale, for the costs
Alternatively
to the preceding paragraph and should the defendant be of the view
that he should not be held personally liable, he
should identify such
persons in the department of Health of Gauteng, as well as such
persons in the office of the state attorney,
who should be personally
held liable for the costs as well as the reasons why they should be
so held liable.
The
defendant’s affidavits, dealing with preceding two paragraphs,
should be filed and served by no later than Thursday 23
October 2014
at 12h00.”
[6]
On
the face of it, the additional order called upon the MEC to show
cause on 28 October 2014 why he should not be liable for the
costs
de
bonis
propriis
(from his own pocket) in his personal capacity.
Further strangely, the order directed him in the alternative and if
he held
the view that he should not be held liable personally for the
costs, that he should identify persons in his department as well as
in the office of the State Attorney, who should be held personally
liable for the costs. The MEC was ordered to file affidavits
on
these matters on 23 October 2014 at 12h00.
[7]
In
compliance with the order the MEC filed an affidavit deposed to by
him in which he confirmed that Mr Jabulani Macheke and Dr
Kgoposi
Cele were authorised to take decisions on whether to defend actions
brought against the department. He went further
to state that
the two officials followed the correct procedure in this matter and
that the decision they took was reasonable in
the circumstances.
[8]
It
turned out that the decision to defend the action was based on the
expert opinion of a specialist, Dr Mashamba, who disputed
that there
was negligence on the part of the officials who attended to Ms
Lushaba. But the trial Court rejected Dr Mashamba’s
opinion on the ground that it was expressed without having had sight
of crucial evidence including the opinions of Ms Lushaba’s
experts.
[9]
Attached
to the MEC’s affidavit were affidavits by Dr Cele, Mr Macheke
and Mr Ezekiel Matlou, the State Attorney who represented
the MEC in
the action. These affidavits explained the role played by each
official in relation to the case. In particular
they showed
that these officials were involved in taking the decision that the
action could be defended as it appeared to them
that the issue of
negligence was contested. In addition Mr Matlou addressed the
failure on the part of the MEC to comply
with procedural
requirements.
[10]
As
a result the High Court prepared a comprehensive judgment on who
should bear the costs of the action
de
bonis propriis
. The Court then
issued this order:
“
1.
Ezekiel Matlou; Jabulani Macheke and Kgoposi Cele are ordered to pay
de bonis propriis
50%
of the cost (identified as such in paragraphs 134 of my first order
of 16 October 2014) jointly and severally with the defendant
on the
attorney and client scale.
2.
In the event of the plaintiff recovering all of her costs from the
defendant,
the defendant is ordered to recover 50% of the costs paid
by her to the plaintiff
de bonis propriis
from Messrs Matlou;
Macheke and Cele jointly and severally.
3.
The conduct of Mr Matlou is referred to the Law Society of the
Northern Provinces
for investigation and such further action as it
may deem fit.
4.
The Registrar is directed to send a copy of this judgment, as well as
the judgment
in this matter of 16 October 2014 to the Law Society of
Northern Provinces with the request that the Law Society investigate
the
conduct of Mr Ezekiel Matlou as appears from this judgment
with a view to taking such action the Law Society may consider
appropriate.”
[2]
[11]
It
is understandable that trial courts are concerned about the flood of
medical negligence litigation aimed at provincial health
departments. It is on public record that staggering increases
in claims have occurred in recent years, at enormous cost to
the
public capacity to render health services. It is equally
understandable that at times trial courts feel frustration that
litigation costs mount up, as delays become more and more protracted,
while injured claimants suffer. Worst of all, litigious
lawyers
seem to prosper and bureaucrats seem to get off scot-free, blithely
taking no responsibility. But the Court here
sought to apply
inapposite implements to a profound structural problem. The quest to
bring accountability to those who are responsible
for the tragic
proliferation of damages claims, and the seeming morass of
never-ending litigation amidst which deserving claimants
are
sometimes made to suffer, must take a different form.
[12]
The
High Court was driven to issue the second order after it had found
that the MEC could not be held personally liable for costs.
But
in doing so, the Court departed from the terms of its previous
order. It will be recalled that on 16 October 2014, the
Court
had ordered thus:
“
[S]hould
the [MEC] be of the view that he should not be held personally
liable, he should identify such person in the Department
of Health of
Gauteng, as well as persons in the office of the state attorney, who
should be personally held liable for the costs
as well as the reasons
why they should be so held liable.”
[13]
For
many reasons, this was indeed a strange and incompetent order.
First, this is not how parties who were not involved in
particular
litigation should be joined. Second and more seriously, the
order reveals that the Court impermissibly authorised
one of the
parties before it to exercise a judicial power. In its terms
the order referred to in the preceding paragraph
left it to the MEC
to decide whether he was personally liable. But, if he took the
view that he should not be personally
liable, he should identify
persons who should be held personally liable and significantly
furnish reasons why those persons should
be held liable.
[14]
It
was not competent for the High Court to allow the MEC to be the judge
of whether he should be held personally liable and if he
should not
be held personally liable, to identify who should be. This does
not accord with section 165 of the Constitution
which declares that
judicial authority of the Republic is vested in the courts.
Moreover, the order breached a principle
entrenched in our law that
no one should be a judge in their own case.
[15]
In
De Lange
this
Court reaffirmed this and other principles which are fundamental to
judicial adjudication in a constitutional order.
There it was
stated:
“
When
contemplating the essential purpose of the protection afforded
through the notion of procedural fairness, my sight is arrested
by
this fact: at heart, fair procedure is designed to prevent
arbitrariness in the outcome of the decision. The time honoured
principles that no-one shall be the judge in his or her own matter
and that the other side should be heard, aim toward eliminating
the
proscribed arbitrariness in a way that gives content to the rule of
law. They reach deep down into the adjudicating process,
attempting to remove bias and ignorance from it. Everyone is
entitled to an impartial judge, not because this guarantees
a correct
decision, but because the human arbiter, not being omniscient, should
not be presented with a point of view that his
or her position
inherently loads. Everyone has the right to state his or her
own case, not because his or her version is
right, and must be
accepted, but because in evaluating the cogency of any argument, the
arbiter, still a fallible human being,
must be informed about the
points of view of both parties in order to stand any real chance of
coming up with an objectively justifiable
conclusion that is anything
more than chance. Absent these central and core notions, any
procedure that touches in an enduring
and far-reaching manner on a
vital human interest, like personal freedom, tugs at the strings of
what I feel is just, and points
in the direction of a violation.
When the clear basis for committing a person to prison is coercive
rather than punitive,
warning lights begin to flash.”
[3]
[16]
But,
contrary to the direction of the Court, the MEC, having shown why he
should not be held liable, did not identify persons who
should be
held liable. And consequently he did not furnish reasons for
anybody to be held liable. Despite this missing
link, the High
Court concluded:
“
Messrs
Matlou and Macheke and Dr Cele have addressed in their affidavits
issues around their conduct and decision making in this
case and I am
satisfied that they have properly been heard. The rule
nisi
foreshadows the consideration of a special cost
order against responsible officials.
[4]
”
[17]
The
Court proceeded to order Mr Matlou, Mr Macheke and Dr Cele to pay out
of their own pockets 50% of the costs which the same Court
had on
16 October 2014 ordered the MEC to pay. This was irregular
for a number of reasons. These officials were
not at any stage
joined as parties to the matter. Second, the rule
nisi
issued on 16 October 2014 did not call any of them
to show cause why they should not be held liable. They deposed
to affidavits
in support of the MEC’s contention that he could
not be held personally liable. Therefore, there was no legal
basis
for the Court to exercise its judicial authority over these
officials.
[18]
Another
principle breached is that without notice and opportunity to make
representations, the High Court punished the three officials.
It is a fundamental principle of our law that no one should be
condemned without a hearing. This is part of the rule of law
which is foundational to our constitutional order.
[19]
It
is not correct that the three officials “have been properly
heard” only because their affidavits addressed the question
why
they took the decision to defend the action. Those affidavits
were not meant to show cause why these officials should
not be held
personally liable for costs. On the contrary, they were filed
in support of the MEC’s case. It was
the MEC who was
properly heard and not them. An order that was issued in these
circumstances violates the officials’
right to a fair hearing
guaranteed by section 34 of the Constitution.
[5]
[20]
In
De Beer NO
Yacoob
J defined this right in these words:
“
This
section 34 fair hearing right affirms the rule of law which is a
founding value of our Constitution. The right to a fair
hearing
before a court lies at the heart of the rule of law. A fair
hearing before a court as a prerequisite to an order
being made
against anyone is fundamental to a just and credible legal order.
Courts in our country are obliged to ensure
that the proceedings
before them are always fair. Since procedures that would render
the hearing unfair are inconsistent
with the Constitution courts must
interpret legislation and rules of court, where it is reasonably
possible to do so, in a way
that would render the proceedings fair.
It is a crucial aspect of the rule of law that court orders should
not be made without
affording the other side a reasonable opportunity
to state their case. That reasonable opportunity can usually
only be given
by ensuring that reasonable steps are taken to bring
the hearing to the attention of the person affected. Rules of
courts
make provision for this.”
[6]
[21]
Recently
this Court, in
Stopforth Swanepoel &
Brewis Incorporated
, set aside an order
issued by the Supreme Court of Appeal without hearing the party
against whom the order was made. There,
Nkabinde J said:
“
It is indisputable that the attorneys were
not a party to the proceedings before the Supreme Court of Appeal.
This much was
acknowledged by that Court itself. The Court
nonetheless proceeded to make an adverse order of liability against
the attorneys
despite its findings that they acted on instructions of
Royal.
The Supreme Court of
Appeal also ordered the attorneys to pay back not only the funds but
also an amount of interest greater than
the interest the funds were
earning in the interest-bearing trust account. This was so
despite the fact that their actions
were prescribed in terms of
section 78(2A) of the Act.
The reason
advanced for the decision of the Supreme Court of Appeal is thus not
good. In my view, the twin notions of procedural
and
substantive fairness were violated. The manner in which the
decision was arrived at and the reasons advanced adversely
affected
the attorneys’ interests.
There was no issue on
appeal between the attorneys and the respondents regarding the
attorneys’ liability. The attorneys
were not participants
on appeal. They should, at the very least, have been invited to
make submissions. That did not
happen. Consequently, they
were not heard. For these reasons, the attorneys are entitled
to seek relief in this Court.”
[7]
(Footnotes omitted.)
[22]
It
follows that the order of 26 November 2014 must be set aside in its
entirety.
[23]
With
regard to the order of 16 October 2014 which dealt with the merits,
the MEC’s complaint is directed at the assessment
of the
evidence. Apart from the fact that this attack does not raise a
constitutional issue or an arguable point of law of
general public
importance, the conclusion reached by the High Court on the merits is
unassailable. Therefore leave to appeal
must be refused, except
to the extent of the alternative order on whether the MEC should be
held personally liable for costs and
if not that he should identify
persons who should be held liable and give reasons for the decision.
This part of the order
of 16 October 2014 falls to be set aside as
well.
Order
[24]
In
the result the following order is made:
1.
Leave to appeal is granted.
2.
The order issued by the Gauteng Local Division of the High Court, on
26 November
2014 is set aside.
3.
The appeal against the order of 16 October 2014 on the merits of the
case is
dismissed.
4.
Paragraph 136 of the order of 16 October 2014 is set aside.
[1]
10 of 2013.
[2]
26 November 2014 High Court order at paras 1- 4
[3]
De Lange v Smuts NO
[1998]
ZACC 6
;
1998 (7) BCLR 779
(CC)
1998 (3) SA 785
(CC); para 131.
[4]
26 November 2014 High Court Judgment at
para 101.
[5]
Section 34 of the Constitution provides :
“
Everyone has
the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[6]
De Beer No v North Central Local Council and
South Central Local Council
[2001]
ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 110
(CC) para 11.
[7]
Stopforth Swanepoel & Brewis Incorporated
v Royal Anthem Investments
129 (Pty)
Ltd
[2014] ZACC 26
;
2016 (1) SA 103
(CC);
2014 (12) BCLR 1464
(CC)
at paras 24 -6