Fielding v MEC for Health, Provincial Government of Northern Cape and Another (1930/2018) [2020] ZANCHC 76 (30 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.

Not Reportable

Case No: 1930/2018

In the matter between:

FRANCIS FIEDLING

APPLICANT/PLAINTIFF

And

THE MEC FOR HEALTH, PROVINCIAL

GOVERNMENT OF THE NORTHERN CAPE FIRST RESPONDENT/DEFENDANT

GOVERNMENT OF THE FREE STATE

SECOND RESPONDENT/DEFENDANT

Heard: 07 August 2020

Delivered: 30 October 2020

Judgment

Phatshoane ADJP

[1] Ms Francis Fielding, the applicant, had initially instituted action against the Members of the Executive Council (MEC) for Health, Northern Cape and the Free State, the first and second respondents, for damages flowing from a bile duct injury she sustained allegedly at the hands of certain doctors and nursing staff of Dr Harry Surtie Hospital, Upington, during laparoscopic cholecystectomy. The action has since been withdrawn against the MEC for Health, Free State Province.

[2] For convenience the parties are referred to as in the action. The MEC for Health Northern Cape (the defendant), raised a Special Plea that Ms Fielding, the plaintiff, failed to give notice of her intention to institute legal proceedings against him as required in terms of s 3(1)(2) of Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002 (“the Act”) prior to issuing the summons. The plaintiff now seeks condonation for non-compliance.

[3] On 20 October 2015 the plaintiff was admitted to Dr Harry Surtie Hospital for an elective laparoscopic cholecystectomy to treat an infection of her gallbladder. Following this, she was transferred to Universitas Academic Hospital, Bloemfontein, where further operations were performed. She was discharged with drain in situ on 29 October 2015. On 13 November 2015 she was readmitted but discharged on 19 November 2015. She underwent approximately a month long bile drainage with catheters and biliary drainage bags.

[4] She still experiences pain and discomfort following the surgical procedures as the surgery had a negative effect on her health. She also had constant pain in her lower back and abdominal area. She instructed Neser Attorneys, Cape Town, in February 2017 to institute action for damages based on the doctors’ negligence. She did not receive any feedback from the said attorneys but they issued summons commencing action against the defendants on 06 and 07 August 2018.

[5] The plaintiff says that she is unsophisticated and therefore was unaware that there rested a duty upon her to give notice to the defendant of her intention to institute action within six months from the date on which the debt arose in terms of s 3 of the Act. She resolved to launch action when it became evident that her condition was unlikely to improve. She was informed of her want of compliance with the statutory prescripts when her current attorneys, Lanser, Liedtke and Associates, came on record on 11 October 2018, at which stage the period of service of a letter of demand was long overdue.

[6] Following the service of the Special Plea on 23 October 2018 the plaintiff’s attorneys directed a letter dated 24 October 2018 to the defendant’s attorneys in an effort to curtail legal costs suggesting that they withdraw the Special Plea because the plaintiff’s attorneys held a view that good cause existed for the plaintiff’s failure to serve the notice.

[7] The plaintiff intimates that it would have served no purpose to give the defendant the statutory notice when her new attorneys took over because the summons had already been issued. In addition, her attorneys were not in possession of the relevant hospital records to assess her prospects of success and could not file the application for condonation at that time. They requested the medical records from the defendant’s hospitals on 09 October 2018 but received no response.

[8] Almost eight months later, on 25 June 2019, the plaintiff’s attorneys requested the records from the State Attorneys Bloemfontein who suggested that the medical and/or hospital records be sought by means of a discovery in terms of Rule 35(1)(3) of the uniform rules of Court which, the plaintiff served on 06 August 2019. This was followed by the defendant’s discovery affidavit on 08 August 2019. The discovered medical records were produced for inspection by the plaintiff on 26 September 2019. The plaintiff consulted her expert, Dr Jeremy Plaskett, on 27 November 2019. Upon receipt of Dr Plaskett’s report on 11 December 2019 her attorneys settled the application for condonation which was served and filed on 13 February 2020.

[9] The defendant contends that there is no explanation from the plaintiff or her erstwhile or current attorneys why the statutory notice was not issued timeously or at all. The defendant’s further contention is that nothing impeded the plaintiff’s current attorneys from seeking condonation at the earliest opportunity because they were in possession of the particulars of claim which set out in great detail the grounds of negligence which gave rise to the debt. The defendant submitted that it stood to suffer prejudice due to the plaintiff’s failure to timeously comply with the statutory requirements because Dr Tshimpaka, who performed the elective procedure, had since left the country and is not available to give evidence.

[10] The primary purpose of the Act is to require that a notice of intention to institute legal proceedings be given within the prescribed time-frame to an organ of State, to enable it to investigate the basis of the proposed claim.[1] What permeates the plaintiff’s argument is that it was already too late for her to give the defendant the statutory notice when the awareness dawned.

[11] 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 its intention to institute the legal proceedings or the organ of state concerned has consented in writing to the institution of that legal proceedings without such notice as stipulated in the Act.[2] A creditor must give notice of its intention to institute legal proceedings against an organ of the state within six months from the date on which the debt became due.

[12] The notice must briefly set out the facts giving rise to the debt and particulars of such debt as are within the knowledge of the creditor.[3] A debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts

giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have

acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge.[4]

[13] The Court may condone non-compliance if it is satisfied that: the debt has not been extinguished by prescription; good cause exists for the failure by the creditor; and the organ of state was not unreasonably prejudiced by the failure.[5] The applicant for condonation must furnish an explanation of the default sufficiently full to enable the court to understand how it really came about, and to assess his/her conduct and motives.[6]

[14] The present claim has not been extinguished by prescription. The plaintiff’s explanation that she is unsophisticated; had been in pain, and unaware of her statutory obligation to give notice to the defendant until her new attorneys took over in October 2018, is plausible. However, prior to that, on 06 August 2018 when the summons was issued, her erstwhile attorneys were aware that condonation was necessary and half-heartedly sought to request it in the particulars of claim at para 16 as follows:

‘Prior to the institution of these proceedings, the plaintiff did not comply with the provision of section 3 of the Act No, 40 of 2002, and condonation therefor is hereby requested.’

[15] There is a dearth of explanation from the plaintiff’s erstwhile attorneys why the statutory notice was not issued. Be that as it may, either a complete failure to send a notice, or the sending of a defective notice, entitles a creditor to make the application.[7]

[16] It also holds true that the plaintiff’s current attorneys took a period of a year to bring condonation after they were notified by the defendant’s attorneys that the Special Plea would not be withdrawn. However, it cannot be argued, as the defendant sought to do, that the plaintiff had flagrantly breached the Rules when there is ample evidence to show that her current attorneys sought medical records to assess her prospects of success. Upon receipt of her expert’s medical report on 11 December 2019 it took the plaintiff approximately 42 Court days to bring the application for condonation. The argument that the plaintiff set about requesting medical records, prior to seeking condonation, despite her particulars of claims being detailed

pertaining to the alleged medical malpractice, ignores that her current attorney did not settle the particulars claim.

[17] In addressing her prospects of success the plaintiff says she was examined by Dr Plaskett on 27 November 2019 who established that she sustained an injury to the right hepatic duct during the surgical procedure carried out by Dr Tshimpaka and the nursing personnel at Dr Harry Surtie Hospital. The procedure was hazardous and alternative strategies should have been adopted to ensure her safety. Dr Plaskett concluded that the bile duct injury that the plaintiff sustained was as a result of failure to exercise the general level of skill and diligence required of a general surgeon. These allegations were met by a bare denial from the defendant. In light of this, it can safely be concluded that the plaintiff has a reasonable prospects of success.

[18] On the question of prejudice, the defendant contends that Dr Tshimpaka left the country and is not available to give evidence. It was further argued that in the particulars of claim no allegations of negligence were made against Dr Tshimpaka. Negligence was attributed to him when the report of Dr Plaskett was filed by the plaintiff, five years later, following the operation that was performed by Dr Tshimpaka. That may well be. However, in the defendant’s plea ample particulars were provided of the procedure undertaken on the dates the plaintiff was admitted at the hospital. Surely out of that investigative analysis it ought to have been apparent to the defendant, when he filed the plea, that Dr Tshimpaka, was a necessary witness. What the defendant does not say is whether the whereabouts of the doctor are unknown and therefore cannot be traced. In my view, the fact that Dr Tshimpaka has left the country is not reason enough to refuse condonation for the failure to serve the statutory notice.

[19] On the whole, I am of the view that good cause has been established for the condonation of failure by the plaintiff to give the statutory notice. There is no reason why costs should not follow the result. I make the following order.

Order:

1. The failure of Ms Francis Fielding, the plaintiff, to give notice to the MEC of Health, Northern Cape, the defendant, of her intention to institute legal proceedings, as required in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002, is condoned.

2. The defendant is to pay the costs of the application.

Phatshoane ADJP

APPEARANCES:

For the applicant/plaintiff: Adv JM Rust

Instructed by Venters Rust Inc.

For the first respondent/defendant: Adv R Jaga SC

Instructed by Robert Charles Attorneys.

[1] Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC); 1996 (12) BCLR 1559) para 9.

[2] section 3(1) of Act 40 of 2002.

[3] Section 3(2) of Act 40 of 2002.

[4] Section 3(3) of Act 40 of 2002.

[5] Section 3(4)(b)(i), (ii) and (iii) of Act 40 of 2002.

[6] Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) at 12 para 17.

[7] Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457 (SCA) at 561 para 10.