Member of the Executive Council for Health: Northern Cape Province v Rakhojane (2293/2016) [2020] ZANCHC 71 (11 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR HEALTH: NORTHERN CAPE PROVINCE

Applicant/Defendant

and

GEORGE RAKHOJANE

Respondent/Plaintiff

JUDGMENT: RULE 30 OF THE UNIFORM RULES OF COURT,

STRIKING OUT AND CONDONATION APPLICATIONS

MAMOSEBO J

[1] This is an interlocutory application including these applications:

1.1 first, a declarator that the amendments sought by Mr George Rakhojane, the plaintiff in the main case and the respondent in this application, in his amended Particulars of Claim dated 14 November 2019, be set aside on the basis that it constitutes an irregular step in the proceedings and costs on the scale as between attorney and client;

1.2 secondly, the striking out of paragraphs 5.5, 5.10.1, 5.10.2, 5.10.6, 5.10.7 and 21.3 of the plaintiff's answering affidavit filed on 14 February 2020 on the basis that they constitute inadmissible hearsay evidence not supported by confirmatory affidavits: also with costs on the scale as between attorney and client; and

1.3 lastly, the plaintiff's application for condonation for the late filing of the amended Particulars of Claim.

[2] I shall refer to the parties as they are cited in the action proceedings, namely, Mr Rakhojane as the plaintiff and the Member of

the Executive Council for Health, Northern Cape Province as the defendant.

The background

[3] The plaintiff attended at Galeshewe Day Clinic in Kimberley on 24 November 2015 for the medical treatment of a severe and persistent headache. He was first seen by a nurse who referred him to a medical doctor. Whilst receiving treatment he suffered a seizure and fell from a hospital bed. An ambulance was summoned and he was rushed to Kimberley Hospital now known as Robert Mangaliso Sobukwe Hospital (RMSH). On the evening of 25 November 2015, he was admitted to the intensive care unit (ICU). In the early hours of 26 November 2015, he underwent a surgical head operation for bleeding on the brain. He lost his eyesight after the operation.

[4] The plaintiff issued a combined summons on 21 October 2016. The following appeared at para 13 of his Particulars of Claim which he later intended to amend:

"The following week after the 26th of November 2015, the plaintiff was referred to an Ophthalmologist at Kimberley Complex Hospital who found that the plaintiff's head operation affected his optic nerve and cerebral cortex."

He subsequently filed the Notice dated 12 March 2018 in terms of Rules 28(1) and (2) signalling his intention to amend para 13 of his Particulars of Claim to add the following paragraphs:

"13.1 At all material times the treating doctor from Kimberley Hospital was not sure about the cause of the plaintiff's blindness.

13.2 The defendant's treating doctors at Kimberley Hospital ought to have known that a drainage operation for a chronic subdural haematoma are far away from the optic nerves. The blindness is not as a result of a direct injury to the optic nerves the plaintiff's blindness is as a result of the brain herniation.

13.3 The defendant's treating doctors ought to have avoi[ded] a lumber puncture (LP) procedure in the high pressure of haematoma."

[5] The defendant's erstwhile attorneys, the State Attorney, did not file any objection to the said Notice to amend. Absent any objection, the plaintiff was to serve and file the amended Particulars of Claim within ten days after the defendant's period had lapsed. The period of objection lapsed on 27 March 2018. Thereafter, the plaintiff had a further 10 days, until 11 April 2018, to effect the said amendments but failed to do so. He only did so on 14 November 2019, 18 months after the dies had expired.

[6] The plaintiff did not first obtain an agreement from the defendant nor seek condonation from the Court to file the amended Particulars of Claim outside the prescribed time periods. The defendant contended that it was an irregular step which stood to be set aside.

[7] The defendant filed a Notice in terms of Rule 30(1) affording the plaintiff an opportunity to correct the irregular step by withdrawing the impugned amended Particulars of Claim, which he failed to do.

[8] In his amended Particulars of Claim the plaintiff alleged that herniation of his brain caused his blindness. The defendant argued that the allegation amounted to a totally new cause of action different from the original Particulars of Claim in which he pleaded that the craniotomy or the operation performed on him on 26 November 2015 at RMSH had caused his blindness.

[9] The defendant maintained that the new cause of action pleaded by the plaintiff had prescribed after the 3 year prescriptive period of the debt arising, computed from 26 November 2015 to 14 November 2019. She contended further that had the amendment been effected within the 10 day period envisaged in Rule 28(5) it would have beaten the prescriptive period. The defendant argued that the effect of this late filing of the amended Particulars of Claim is that the new cause of action dated 09 March 2018 has become prescribed and stands to cause the defendant significant prejudice. For the specific timeframes within which the cause of action would have prescribed, see para 19 below.

[10] The defendant's attorneys, Robert Charles Attorneys, addressed a letter to the plaintiff's attorneys, Ponoane Attorneys, querying the plaintiff's failure to effect the amendment in terms of the Rules and drawing their attention to the contents of paras 12, 13, 13.1, 13.2 and 13.3 of the plaintiff's amended Particulars of Claim which were said to be contradictory in that, while para 12 states that the plaintiff's blindness was caused by the operation performed by Drs Martin and Ford on 26 November 2015 at RMSH, para 13 alleges that the plaintiff's blindness was caused by a brain herniation and was excipiable for being vague and embarrassing. Further that no cause of action for brain herniation is alleged. The plaintiff denies that the amended Particulars of Claim are excipiable. He also denies that they introduce a new cause of action which has prescribed.

The condonation application

[11] The plaintiff filed an application for condonation for the late filing of the amended Particulars of Claim which is opposed. Mr Ponoane, arguing for the plaintiff, made the following submissions: The plaintiff mistakenly delayed to effect and file the amendments; the defendant failed to follow the provisions of Rule 28(5) and are therefore deemed to have consented to the amendments; the failure to file the amended Particulars of Claim was not caused by his client, but by his office.

[12] Mr Ponoane deposed to the founding affidavit in the condonation application. According to him, he had allocated the plaintiff's file to his candidate attorney, Ms Loretta Ponoane, who was later admitted as an attorney in June 2018 and resigned from Ponoane attorneys in April 2019 without a proper handing over of the files. Whilst he was aware that the defendant did not file any objection, it escaped him to effect the amendments timeously due to failure to diarise the dates. He tenders his apology and pleads to the court to grant condonation.

[13] In Uitenhage Transitional Local Council v South African Revenue Service[1] Heher JA repeated the admonition previously issued to practitioners who bring applications such as the present thus:

“[6] One would have hoped that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this Court: condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out." (Own emphasis).

[14] Heher JA's remarks in Madinda v Minister of Safety and Security[2] are relevant in cases involving procedural non-compliance:

“[10] "Good cause" looks at all those factors which bear the fairness of granting the relief as between the parties and as affecting the proper administration of justice. In any given factual complex it may be that only some of many of such possible factors become relevant. These may include prospects of success in the proposed action, the reasons for the delay, the sufficiency of the explanation offered, the bona fides of the applicant, and any contribution by other persons or parties to the delay and the applicant's responsibility thereto."

[15] Mr Ponoane argued that prescription is a non-starter. In my view, it is necessary to determine whether prescription is relevant before a ruling in respect of condonation can be made. A counter argument was submitted by Mr Lemboe, for the defendant, that the condonation will prejudice the defendant because the action will proceed on the basis of a prescribed cause of action which cannot be cured by a cost order.

[16] An amendment which introduces a new claim, which the defendant claimed its effects to be, will not be allowed if it would resuscitate a prescribed claim or defeat a statutory limitation as to time[3]. In Sentrachem Ltd v Prinsloo[4] the Appellate Division laid down the test as follows:

"Die eintlike toets is om te bepaal of die eiser nog steeds dieselfde, of wesenlik dieselfde skuld probeer afdwing. Die skuld of vorderingsreg moet minstens uit die oorspronklike dagvaarding kenbaar wees, sodat 'n daaropvolgende wysiging eintlik sou neerkom op die opklaring van 'n gebrekkige of onvolkome pleitstuk waarin die vorderingsreg, waarop daar deurgaans gesteun is, uiteengesit word ... So 'n wysiging sal uiteraard nie 'n ander vorderingsreg naas die oorspronklike kan inbring nie, of 'n vorderingsreg wat in die oorspronklike dagvaarding prematuur of voorbarig was [kan] red nie, of ... 'n nuwe party tot die geding [kan] voeg nie."

[17] Corbett JA made this pronouncement in Evins v Shield Insurance Co Ltd[5]:

"Where a plaintiff seeks by way of amendment to augment his claim for damages, he will be precluded from doing so by prescription if the new claim is based upon a new cause of action and the relevant prescriptive period has run, but not if it was part and parcel of the original cause of action and merely represents a fresh quantification of the original claim or the addition of a further item of damages (see Wigham v British Traders Insurance Co Ltd 1963 (3) SA 151 (VV); Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (VV); Lampert-Zakiewicz v Marine & Trade Insurance Co Ltd 1975 (4) SA 597 (C) at 601-2)."

[18] It is common cause that the cause of action arose on 25 and/or 26 November 2015. While the plaintiff alleged in the Particulars of Claim that the operation performed on him on 26 November 2015 caused his blindness in the amended Particulars of Claim the following is alleged, which, the defendant maintains, is a new cause of action:

"The defendant's treating doctors at Kimberley Hospital ought to have known that, a drainage operation for a chronic subdural haematoma are far away from the optic nerves, the blindness is not as a result of a direct injury to the optic nerves the plaintiff blindness is as a result of brain herniation".

[19] If the cause of action arose on 25 or 26 November 2015 the plaintiff had until 25 November 2018 to issue his process. When the amended Particulars of Claim were filed on 19 November 2019, the purported "new cause of action" had prescribed.

[20] Mr Ponoane relied on the Lesotho judgment of Carlos & MR Van Gernert v The Government of the Kingdom of Lesotho and the Attorney General[6]. The similarity between this case and the case before me is that the application was for the extension of time to enable the defendant to file its amended plea. The distinction is that it is brought in terms of the Lesotho High Court Rules whereas this court follows the Uniform Rules of Court which, in my view and for purposes of this application, are adequate. I must point out though that "good cause" is also required to be shown in accordance with Rule 26(4) of the Lesotho High Court Rules of 1980, which the plaintiff has failed to do.

[21] Mr Lemboe conceded, correctly so in my view, that there was no objection filed by the defendant to the amended Plea. However, the two issues critical to this application are, first, the defendant has failed to effect the amendment timeously or, put differently, ten days after the defendant's failure to object. The cause of action as it appears in the original Particulars of Claim and new cause of action as it appears in the amended Particulars of Claim are substantially different and the new cause of action falls clearly outside the prescription period.

[22] I am not swayed by the explanation furnished by the plaintiff's attorney. It does not provide an accurate account of the causes for the delay. The mere fact that his colleague has left the firm and he erroneously omitted to diarise this file displays a lackadaisical approach which fails to meet the required standard of diligence required of an attorney. It follows then that the application for condonation must fail, unless the prospects of success on the merits are strong.

Rule 30(1) of the Uniform Rules of Court application

[23] The State Attorney was substituted by Robert Charles Attorneys on 02 October 2019. A trial date was arranged for 18, 19 and 20 November 2019. A request for the amended Particulars of Claim was addressed by e-mail to the plaintiff's attorneys on 13 November 2019. It is only at that stage that the plaintiff filed the amended Particulars of Claim. The defendant's attorneys took a point that it was an irregular step in the proceedings. The defendant filed a Notice in terms of Rule 30(2)(b) dated 28 November 2019 affording the plaintiff ten days within which to remedy the irregularity, which did not happen.

[24] The court has a discretion to be exercised judicially upon consideration of all circumstances and what is fair to both sides[7]. Based on what was discussed in the preceding paragraphs, the defendant's submission stands to succeed on this aspect. To reiterate

the objectives of Rule 30(1) as pointed out by Flemming J in SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO[8] that Rule 30(1) was intended as a procedure whereby a hindrance to the future conducting of the litigation, whether created by a non-observance of what the Rules of Court intended or otherwise, is removed.

I therefore find that the plaintiff's non-compliance with Rule 30(1) was an irregular step in the proceedings.

The striking out applications

[25] The relief sought by the defendant is the striking out of paras 5.5, 5.10.1, 5.10.2, 5.10.6, 5.10.7 and 21.3 of the plaintiff's answering affidavit filed on 14 February 2020 on the basis that they constitute inadmissible hearsay evidence not supported by a confirmatory affidavit.

[26] Provision is made in Rule 6(15) of the Uniform Rules for the striking out of inadmissible evidence, including hearsay evidence. This Court has also dealt with this aspect in its unreported judgment of Matiso-Mbatiwe v the MEG, Department of Health, Northern Cape[9].

[27] At para 5.5 the plaintiff makes reference to a consultation that his attorney had had with his experts regarding brain herniation which he says means a swelling of the brain or bleeding on the brain due to a long delay in treatment. The plaintiff filed only his attorney of record's confirmatory affidavit, failing to attach the confirmatory affidavit of the medical expert making the prognosis. The reference to what his attorney conveyed to him on this aspect thus constitutes inadmissible hearsay evidence which, in the absence of a proper application in terms of s 3 of the Law of Evidence Amendment Act[10] stands to be struck out. The plaintiff has also repeated the averments in the offending paras 5.10.1, 5.10.2, 5.10.6, 5.10.7 and

21.3 and must suffer the same fate.

[28] In Galp v Tansley N.O and Another[11] the Court said:

"[O]ur Courts have consistently refused to countenance the admission as evidence - for any purpose whatever - of any statement embodying hearsay material, save where such statement has properly been made the subject of an affidavit (or solemn

affirmation) of information and belief, i.e, save where the deponent (or affirmer) has not only revealed the source of the information

concerned but in addition has sworn (or solemnly affirmed) that he believes such information to be true and furnished the grounds for his belief'.

I therefore find that paragraphs 5.5, 5.10.1, 5.10.2, 5.10.6, 5.10.7 and 21.3 of the plaintiff's answering affidavit filed on 14 February 2020 stand to be struck out.

[29] On the question of costs. Mr Lemboe submitted that, should the defendant be the successful party, the Court should consider the awarding of costs to the defendant's

counsel, Adv Mohamed Salie SC, who was involved in the matter up to the drafting of the Heads of Argument dated 17 March 2020 but could not argue the matter as he is now on an acting stint at the Western Cape Division of the High Court. This submission was opposed by Mr Ponoane on the basis that costs cannot be awarded to a practitioner who is not before Court.

[30] Mr Salie's involvement is a matter of record. Written submissions are required in terms of the Uniform Rules of Court. In JD Van Niekerk en Genote Ing v Administrateur, Transvaal[12] the Supreme Court of Appeal, though dealing with the review of taxation, made the following remarks:

"Heads of argument are drawn when counsel has done his research and prepared for the appeal. They reflect the result of that research and preparation and, if counsel should thereafter, due to the lapse of time, regard it as necessary to consider them again, the extra work involved will normally not be so substantial as to warrant a separate fee..........Heads of argument, admittedly documents of great importance, have always been required by the Rules of this Court... "

[31] There is therefore no reason why costs cannot be awarded to Mr Salie as prayed for. There is further no reason why costs should not follow the result.

[32] In the result the following orders are made:

1. Condonation for the late filing of the amended Particulars of Claim is refused.

2. The amendments sought by the plaintiff in his amended Particulars of Claim dated 14 November 2019 are set aside as an irregular step in the proceedings.

3. Paragraphs 5.5, 5.10.1, 5.10.2, 5.10.6, 5.10.7 and 21.3 of the plaintiff's answering affidavit filed on 18 February 2020 are struck out.

4. The plaintiff/applicant Is ordered to pay the defendant's/respondent's costs on a party and party scale, such costs to include Mr Salie's fee up to the preparation of the Heads of Argument.

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

For the applicant/plaintiff:

Mr Ponoane

Instructed by:

Ponoane Attorneys

For the respondent/defendant: Mr S Lemboe with Heads drawn by

Adv M Salie SC

Instructed by:

Robert Charles Attorneys

[1] 2004 (1) SA 292 (SCA) at para 6

[2] (153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) (28 March 2008) at para 10

[3] Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 279B

[4] 1997 (2) SA 1 (A) at 15H- 16C

[5] 1980 (2) SA 814 (A) at 836D

[6] CIV/T 588/95 (13 December 2000)

[7] Northern Assurance Co Ltd v Somdaka 1960 (1) SA 588 (A) at 596A

[8] 1981 (4) SA 329 (0) at 333G- H

[9] Case No 2458/2016 (31 July 2020)

[10] 45 of 1988

[11] 1966 (4) SA 555 (C) at 559G

[12] 1994 (1) SA 595 (A) at 601E- G