Member of the Executive Council for Health: North West Province v Witbooi (Leave to Appeal) (M551/2021) [2023] ZANWHC 133 (26 January 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO: M551/2021

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR HEALTH: NORTH WEST PROVINCE

Applicant

And

SOPHY GOMOTSEGANG WITBOOI

Respondent

In re:

SOPHY GOMOTSEGANG WITBOOI

Applicant

FOR HEALTH: NORTH WEST PROVINCE

Respondent

ORDER

In the result the following order is made:

1. Application for leave to appeal is dismissed;

2. The applicant is ordered to pay the costs.

LEAVE TO APPEAL JUDGMENT

DJAJE DJP

[1] The leave to appeal is against the whole judgment handed down on 21 July 2022 in which the following order was made:

“1. The applicant’s late filing of the condonation application is condoned;

3. The applicant’s non-compliance in the service of her notice of her intention to institute legal proceedings against the respondent in terms of section 3(4)(a) and 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 is hereby condoned;

4. The applicant is granted leave to institute legal proceedings against the respondent;

4. The respondent is ordered to pay costs.”

[2] The respondent raised a point of law in the heads of argument that the order granted by this court is not appealable as it is not final in effect. The applicant in contention referred to the case of Minister of Public Works v Roux Property Fund (Pty) Ltd (779/2019) [2020] ZASCA 119 (October 2020) where the Supreme Court of Appeal dealt with an appeal of the same nature, being condonation in terms of section 3(1) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2000.

[3] As the issue of appealability was raised it is important to first deal with it in this leave to appeal judgment. The Constitutional Court in International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2010 (5) BCLR 457 (CC); 2012 (4) SA 618 (CC) at paragraphs 49 &50 held that:

“In this sense, the jurisprudence of the Supreme Court of Appeal on whether a ‘judgment or order’ is appealable remains an important consideration in assessing where the interests of justice lie. An authoritative restatement of the jurisprudence is to be found in Zweni v Minster of Law and Order which laid down that the decision must be final in effect and not open to alteration by the court of first instance, it must be definitive of the right of the parties, and lastly, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. On these general principles the Supreme Court of Appeal has often held that the grant of an interim interdict is not susceptible to an appeal.

The ‘policy considerations’ that underlie these principles are self-evident. Courts are loath to encourage wasteful use of judicial resources and of legal costs by allowing appeals against interim orders that have no final effect and that are susceptible to reconsideration by a court a quo when final relief is determined. Also allowing appeals at an interlocutory stage would lead to piecemeal adjudication and delay the final determination of disputes”.

[4] The order granted in this matter was that condonation is granted to the respondent for failing to comply with section 3 of the Institution of Legal Proceedings Act. In essence the respondent was granted leave to institute legal proceedings against the applicant. The effect of this order is that legal proceedings can commence against the applicant which order has a final effect and cannot be reconsidered once the action has commenced. The order of the court is thus appealable.

[5] The test to be applied in an application for leave to appeal is set out in section 17 (1)(a) of the Superior Courts Act 10 of 2013 which provides that:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)(i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;”

[6] The applicant argued that the respondent failed to satisfy requirements of section 3 (4) (b)(ii) of the Institution of Legal Proceedings Act as she became aware of the facts giving rise to her claim in January 2021 but delivered the notice in March 2021. Further that the claim should have been dismissed there without having considered if there was good cause.

[7] The court in its judgment dealt extensively with the requirements of granting condonation in terms of section 3 of the Act. The argument raised by the applicant was ventilated comprehensively and there is no possibility of another court coming to a different conclusion. Good cause is a consideration when dealing with condonation and it was discussed in the judgment. The delay was satisfactorily explained by the respondent. In my view there are no prospects of success on appeal and the leave to appeal should be dismissed with costs.

Order

[8] Consequently, the following order is made

J.T. DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT, MAHIKENG

APPEARANCES

DATE OF HEARING: 20 JANUARY 2023 DATE OF JUDGMENT: 26 JANUARY 2023 COUNSEL FOR APPLICANT: ADV G SELEKA COUNSEL FOR RESPONDENTS: ADV W DREYER