Brownless v MEC for Health, Free State Province and Another (2822/2013) [2021] ZAFSHC 103 (6 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 2822/2013

In the matter between:

REGINALD HAROLD BROWNLESS

Applicant/Plaintiff

and

MEC FOR HEALTH, FREE STATE PROVINCE First Defendant

MEC FOR HEALTH, MPUMALANGA Respondent/ Second Defendant

HEARD ON: 29 APRIL 2021

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 6 MAY 2021

[1] The Applicant makes application for condonation of his non-compliance with Section 3(2), read with Section 4(1) and (2), of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The application involves only the Second Defendant in the action instituted by the Applicant in this Division, and the Second

Defendant is therefore cited as the only Respondent in the proceedings.

[2] Section 3(1) of the Act provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his or her or its intention to institutes the legal proceedings in question. Section 3(2)(a) requires such notice to be served on the organ of state in accordance with Section 4(1) within six months from the date on which the debt became due. Section 4(1) provides that the notice must be served on an organ of state by delivering it by hand or by sending it by certified mail or, subject

to subsection (2) by sending it by electronic mail or by transmitting it by facsimile. In terms of Section 4(1)(a) the notice sent by electronic mail in cases like the present, must be sent to the Head of the Department concerned.

[3] In terms of Section 4(2)(a) the creditor must take all reasonable steps to ensure that the notice has been received by the officer or person to whom it was sent by electronic mail or transmitted by facsimile. Section 4(2)(b) further requires the creditor, where the notice was sent by electronic mail or transmitted by facsimile, to deliver by hand or send by certified mail a certified copy of that notice within seven days after the date upon which that notice was so sent or transmitted, to the relevant officer or person, in this case the Head of the Department. The sub-section also requires such certified copy to be accompanied by an affidavit by the creditor or the person who sent or transmitted the notice, indicating inter alia, the date and the time at which, and the electronic mail address or facsimile number to which the notice was sent or transmitted.

[4] In his founding affidavit the Applicant confirms in general the facts that are set out in his pleadings in the action. On or about 15 December 2010, he was involved in a car accident. On or about 11 February 2011, he was admitted to a hospital in Mpumalanga as an out-patient with complaints of severe neck pain, headaches and a decreased range of motion of his neck. He underwent a MRI scan, and was later informed that the scan indicated stenosis at levels L4/5 and L3/4. He was discharged on oral analgesic medication.

[5] Afterwards, and still suffering from the complaints mentioned above, he was examined by dr. Nicholas Kruger on 5 May 2011 at Groote Schuur Hospital in Cape Town. It was found that his C2-vertebra was in fact fractured and had displaced. There was also an associated spinal cord injury. Dr Kruger admitted him to the hospital on 30 May 2011 for skeletal traction and surgical reduction and fixation of the C-vertebra fracture, whereafter he was discharged on 23 June 2011. Dr Kruger advised him that there may have been negligence on the part of both Defendants in their diagnosis and/or treatment of his spinal injury. It needs mentioning here that, after the accident, the Applicant was first admitted to a Free State hospital where the fracture of the vertebra in question was also not detected.

[6] About a month after his discharge the Applicant approached his attorneys to assist him with the assessment of the possibility of a medical negligence claim against the Defendants. The attorneys then set out to obtain the relevant hospital records from the Defendants, which were received during March 2012. Dr. Kruger was then again briefed to examine the Applicant and to provide a medico-legal opinion based on the abovementioned hospital records. Due to his availability, dr. Kruger could only examine the Applicant on 26 June 2012. The requested medico-legal report by dr. Kruger was received by the applicant’s attorneys on 28 November 2012.

[7] In his report, dr. Kruger came to the conclusion that the “devastating” injury to the Applicant’s cervical spine should have been recognized and managed routinely by the hospitals in question, and with the appropriate conservative

treatment a good outcome is normally expected. “In my opinion Mr Brownless did not have optimum management as his fracture of the C2-vertebra was not identified and treated appropriately….. He required surgical reduction and stabilization of his cervical spine which could possibly had been avoided with simple traction had his injury been recognized. His current state of disability is permanent.”

[8] Following receipt of this report, the attorneys of the Applicant caused a notice in terms of Section 3 and 4 of the Act to be sent to the Respondent by e-mail and facsimile on 22 January 2013. This notice was not followed by an affidavit in terms of Section 4(2). The Applicant says that he was not aware of this fact at the time. It also transpired later that the notice was not sent to the Head of the Department of the Respondent, but to the MEC for Health and to the Premier of the Province. Otherwise the notice complied with all the requirements.

[9] It appears from the pleadings filed in the main action that summons was issued against the Defendants on 15 July 2013. In the Particulars of Claim, there was no mention of compliance with the prescripts of Section 3(2) of the Act. The Applicant claimed damages of R1 579 680.00 for the negligence and/or breach of their contractual obligations from the Defendants in the summons.

[10] In their Plea, filed by the State Attorney on 28 February 2014, the Defendants failed to plead any non-compliance of Section 3(2) by the Plaintiff. A pre-trial conference between the parties was held on 6 July 2015, and the minutes thereof also do not contain any reference to the compliance or non-compliance with the provisions of Section 3(2) by the Applicant. On 14 March 2016, the Applicant’s Particulars of Claim were amended to the effect that compliance with Section 3(2) was now pleaded. The Respondent did not respond to the amended Particulars of Claim and failed to file an amended Plea, whereupon the Applicant placed the Respondent under bar from amending its Plea on 12 June 2017. To date, no application for the upliftment

of the bar has been made by the Respondent.

[11] On 22 January 2021 the Respondent appointed new attorneys to represent it in the action proceedings. Some two weeks later, the new attorneys gave notice of their intention to amend the Respondent’s Plea by incorporating a Special Plea to the effect that the Applicant had not complied with the provisions of Section 3 of the Act in that the notice was not served within six months, and that it was not served in accordance with the provisions of Section 4.

[12] At the hearing of the application for condonation, Mr. Wijnbeek appearing for the Respondent, refrained from arguing the point that the notice was served outside the six month period allowed for such service. He did so quite correctly, having regard to the fact that the facts giving rise to the debt only came to the knowledge of the Applicant on 28 November 2012, while the notice was sent some 2 months later. Section 3 (3)(a) provides in this respect that a debt may not be regard as being due until the creditor has knowledge of the facts giving rise to the debt. Also, in Links v Member of the Executive Council, Department of Health, Northern Cape Province,[1] the Constitutional Court stated that the reason why the applicant lost his thumb and what caused such loss are factual questions and not a legal conclusion. “They are therefore part of the facts which the applicant had to establish before it could be said that he had knowledge of the facts”, the Court concluded.

[13] Mr. Wijnbeek rather concentrated on the fact that the notice was not sent to the Head of the Department as required by the provisions of Section 4(1)(a) of the Act. Those provisions are peremptory, he submitted. In this respect he referred the court to a number of authorities. The failure to send the notice to the correct person, however, remains something that may be condoned by the court.[2]

[14] Mr. Wijnbeek further submitted that the Applicant has failed to show any prospects of success in the action, because on the available evidence, or because of the lack thereof, the quantum of the claim is already reduced to a relatively small amount, or otherwise, it is reduced to general damages only. In my view, such argument cannot succeed having regard to the report of dr. Kruger, the report of an industrial psychologist and the report of an actuary, which were all filed by the Applicant in the action. The Respondent has not filed any expert reports at all.

[15] Section 3(4)(a) provides that, if an organ of state relies on a creditor’s failure to serve a notice in terms of subsection (2)(a), the creditor may apply to a court having jurisdiction for condonation of such failure. In terms of Section 3(4)(b) the court may grant condonation if it is satisfied that (i) the debt has not been extinguished by prescription, (ii) good cause exists for the failure of the creditor, and (iii) the organ of state was not unreasonably prejudiced by the failure. The phase “if (the court) is satisfied” has long been recognised as setting a standard which is not proof on a balance of probability. Rather it is the overall impression made on a court which brings a fair mind to the facts set up by the parties.[3]

[16] From the facts of the matter set out above, it is clear that the debt has not been extinguished by prescription. As for good cause, this element usually refers to the prospects of success on the merits of a case, as well as the reasons for the delay, the bona fides of the Applicant and the contribution by other persons or parties to the delay and the applicant’s responsibility therefore.[4] This court has already expressed itself on the prospects of success, and it need not be repeated. Moreover, it is clear from the facts that the matter happened to be in the hands of the attorneys acting for the Applicant and the Defendant most of the time, and that the Applicant as a lay person had very little to do with the delays and the blunders committed on both sides. I have no hesitation in finding that good cause had been shown.

[17] As for unreasonable prejudice on the part of the Respondent, it is so that the Respondent had already become aware of the facts alleged by the Applicant in July 2013, when the summons was served. If the condonation now sought by the Applicant is then granted, it can hardly be said that the Respondent will be unreasonably prejudiced. This is especially so in view of the fact that in its opposing papers to this application, the Respondent has not set out convincing reasons why he would be unreasonably prejudiced by an order condoning the Applicant’s non-compliance with Section 3(2), read with Section 4(1) and (2). In the Madinda-case,[5] it was stated that a court should be slow to assume prejudice for which the Respondent itself does not lay a basis.

[18] In the premises, the Applicant has succeeded in satisfying this court of the three elements required by Section 3(4)(b). The following order is made:

1. The Applicant’s non-compliance with Section 3(2), read with Section 4(1) and (2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, is condoned.

2. The Applicant is granted leave to proceed with his action against the Second Defendant.

3. There is no order as to costs.

_______________

P. J. LOUBSER, J

On behalf of applicant:

Adv. R. van Wyk

Instructed by:

A. Batchelor and Associates Inc.

Cape Town

c/o McIntyre & Van der Post

BLOEMFONTEIN

On behalf of 1st respondent: Adv. D. H. Wijnbeek

Instructed by:

Adendorff Theron Inc.

Eastern Gauteng

c/o Phatshoane Henney Attorneys

[1] (2016) JOL 35593 (CC)

[2] Magadaza v Yaka and Others (5380/2016) (2018) ZAECGHC 87, Mfundisi Gcam-Gcam v Minister of Safety and Security, unreported case under case no. 187/2011 in the Eastern Cape Local Division, Mthatha, delivered on 12 September 2017, and Section 3(4)(a) of the Act.

[3] Madinda v Minister of Safety and Security 2008(4) SA 312 (SCA)

[4] Madinda, ibid, par 10

[5] At par. 21