Special Investigating Unit v MEC for Health, Province of the Eastern Cape and Another (694/14) [2020] ZAECMHC 57; 2021 (1) SACR 645 (ECM) (1 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

Case No: 694/14

REPORTABLE

In the matter between:

SPECIAL INVESTIGATING UNIT

Applicant

And

MEC FOR HEALTH,

PROVINCVE OF THE EASTERN CAPE

First Respondent

NOZIBELE SIKADE

(O.B.O) XOLILE SIKADE

Second Respondent

JUDGMENT

TOKOTA J:

Introduction:

[1] The applicant is the Special Investigating Unit established in terms of section 2 of the Special Investigating Units and Special Tribunals Act 74 of 1996 (the Act). On 12 September 2017 Pakade J handed down a judgment involving the first and second respondents holding that the first respondent was liable for damages suffered by the second respondent arising from the alleged medical negligence on the part of the first respondent’s employees. Subsequent thereto the parties settled the quantum at R9 000 000.00 (nine million rand).

[2] Before the settlement agreement was concluded but after the judgment, there were interim payments of R1, 500 000 (one million five hundred thousand rand) and R1, 100 000.00 (one million one hundred thousand rand) on 7 May 2018 and 12 March 2019 respectively to the second respondent. On 30 July 2019, Nhlangulela DJP ordered the first respondent to pay R6, 400 000.00 (six million four hundred thousand rand), it being the remainder of the interim payment of R2, 600 000.00 (two million six hundred thousand rand), as damages suffered by the second respondent. No appeal was noted against these orders by the first respondent. The applicant was not a party to those proceedings. It now seeks an order to be joined as a second defendant in those proceedings. The first respondent has filed a notice to abide the decision of this court and the second respondent is opposing the application.

[3] The applicant in its notice of motion seeks an order; (a) to be joined as a party to the proceedings referred to above; (b) to interdict the first respondent from paying the amount of damages as ordered by Nhlangulela DJP on 30 July 2019; (c) that the judgment of Pakade J be rescinded and set aside; (d) that the order of Nhlangulela DJP dated 30 July 2019 be rescinded and set aside; (e) that the second respondent be ordered to pay back to the first respondent the amount of R2,600 000.00 (two million six hundred thousand rand) already paid to her; and (f) costs of the application.

Factual background:

[4] A detailed account of the relevant facts is not necessary for determination of this application. As indicated above the second respondent instituted an action against the first respondent for damages arising from the alleged medical negligence of the employees of the first respondent in the amount of R21 000 000.00 (twenty one million rand).Henceforth I will refer to the first respondent as such or as the defendant and the second respondent as such or as the plaintiff. The basis of the claim is set out in the judgment of Pakade J and can be summarised as follows: The plaintiff who was the mother of Axolile, a newly born baby, sued the defendant for damages on the basis that whilst the plaintiff was admitted at Canzibe Hospital, Eastern Cape, the employees of the defendant negligently caused the plaintiff’s minor child to suffer urinary and foetal incontinence, alternatively, breached a duty of care which they owed to the plaintiff upon admission in that the doctor who operated the plaintiff was not a qualified doctor to do so.

[5] The trial commenced in January 2016 and was concluded in January 2017. Merits were separated from quantum in terms of Rule 33(4) of the Uniform Rules of court. The judgment on the merits was handed down on 12 September 2017. Both parties called witnesses and went through a costly full trial. Quantum was subsequently settled. On 20 July 2019, a settlement agreement between the parties was made an order of court by Nhlangulela DJP. On 19 August 2019, the applicant launched the present proceedings.

Merits of the application:

[6] A claim arising out of medical negligence is justiciable against the State entity responsible for such assignment of duties. The Department of Health is generally an appropriate entity to be sued in this regard. Since the applicant was not a party to those proceedings, it is incumbent upon it to show that it has locus standi to bring this application. In this regard, the applicant based its locus standi on the Proclamation dated 13 July 2019. In that Proclamation the applicant has been authorised by the President to investigate the maladministration in connection with the affairs of the State Attorney in relation to work performed on its behalf in particular with reference to cases relating to medical negligence in the Eastern Cape and to recover any losses resulting therefrom. The applicant contends that the case at hand has been mishandled in that during the trial the defendant failed to call crucial witnesses to defend the claim.

[7] The applicant has not set out any facts relating to an investigation as to why these witnesses, it claims should have been called, were not called. It merely asserts that this failure has resulted in the defendant having suffered financial prejudice. The main witness, which the applicant submits should have been called by the defendant, is one Professor Figagi a paediatric neurosurgeon. The applicant contends that calling of Professor Figagi would have bolstered the

defendant’s case. However, the applicant does not elaborate and inform this court that it had consulted with this witness and tested his opinion.

[8] It is a well established principle that failure to call a witness who is available raises an inference that the party in whose favour the witness may testify fears that the witness may not pass the test of credibility. It has been stated that '[t]he failure to bring before the tribunal some . . . witness when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the . . . witness if brought, would have exposed facts unfavourable to the party.'[1][2]

'The inference is irresistible that his evidence would not have supported the plaintiff's case . . . if he could have given evidence favourable to the plaintiff it is inconceivable that he would not have been called.'

The claim by the applicant that this witness would have bolstered the defendant’s case is based on speculation and in any event denied by the second respondent. The second respondent contends that Professor Fugagi in his report conceded liability of the defendant. This alleged concession, rightly or wrongly, has not been dealt with in the replying affidavit. The replying affidavit does not serve the purpose thereof but is full of arguments and convoluted issues to the extent that it makes it difficult to follow. I will deal with this later in this judgment.

[9] The applicant in essence seeks the setting aside of the judgment of this court so that it may be permitted to enter the fray and lead further evidence in support of the defendant’s defence. The admission of further evidence is governed by section 19(b) of the Superior Courts Act 10 of 2013. This section provides for the admission of further evidence only on appeal. Section 22 of the repealed Supreme Court Act 59 of 1959 was to the same effect. It provided that:

‘The appellate division or a provincial division, or a local division having appeal jurisdiction, shall have power -

(a) on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by such division, or to remit the case to the court of first instance, or the court whose judgment is the subject of the appeal, for further hearing, with such instructions as regards the taking of further evidence or otherwise as to the division concerned seems necessary;’

The SCA has held that new evidence should be admitted on appeal under the section only in exceptional circumstances. Important criteria

relevant to determining whether evidence on appeal should be admitted were identified in Colman v Dunbar.[3] Relevant criteria include the need for finality, the undesirability of permitting a litigant who has been remiss in bringing forth evidence to produce it late in the day, and the need to avoid prejudice. One of the most important criteria was that:

'The evidence tendered must be weighty and material and presumably to be believed, and must be such that if adduced it would be practically conclusive, for if not, it would still leave the issue in doubt and the matter would still lack finality.'[4]

[10] In S v Louw,[5] the Appellate Division held further that in order for the new evidence to be admitted on appeal, some reasonably sufficient explanation must be proffered to account for the failure to tender the evidence earlier in the proceedings. In this case the court is in the dark as to why this evidence was not led at the trial.

Section 19 provides: Powers of court on hearing of appeals

‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power as may specifically be provided for in any other law-

(a) …

(b) receive further evidence;’

[11] The applicant claims that it has a bona fide defence to the plaintiff’s claim. The so-called bona fide defence is based solely on the failure to call Professor Figagi as a witness. The applicant claims that it has a constitutional right to a fair trial and that this right has been unjustifiably infringed by the failure to call Professor Fugagi. It claims further that the right of appeal has lapsed by effluxion of time and therefore the only remedy available to it is rescission. It claims that once the case is re-opened and the applicant joined as a party it will call its own expert witness both in respect of merits and quantum. It contends further that by virtue of section 4(1)(c)(i)to (iii) of the Act it has a right to recover losses and therefore it is necessary to prevent payment of R6,4million (Six million and four hundred thousand rand) to the second respondent. It contends that if the interim order is not granted the R6, 4million will dissipate. Further that there is a reasonable apprehension that the first respondent will pay over this amount to the second respondent. It therefore submits that the balance of convenience favours the granting of the interim order.

[12] The second respondent took several points in limine. She also brought an application to strike out certain allegations in the replying affidavit. The applicant also brought an application to strike out certain paragraphs in the answering affidavit as hearsay evidence. In light of the view, I took of the matter I informed the parties that it will not be necessary for me to deal with the striking out applications. My view was based on the case of Trans-African Insurance Co Ltd v Maluleka[6] where Schreiner JA said:

‘... technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.' The points in limine are covered in this judgment even though I don’t deal with them individually in a chronological manner.

[13] In my view the application is ill-conceived. In cases not falling under Rule 31 or 42 of the Uniform Rules of court and/or common law only the appeal court can allow the re-opening of cases on appeal by the parties who were involved at the trial. If the organs of State clothed with powers to investigate corruption and related maladministration in the government resulting in wasteful and irregular expenditure were allowed to re-open cases in which they were not involved, even though the department with the budget has been involved, that would bring about chaos and uncertainty. Once a judgment is pronounced by court, it is final and can only be re-opened on permissible grounds recognised in law. The exercise of inherent power by high courts, as envisaged in section 173 of the Constitution, to protect and regulate their own process, and to develop the common law, taking into account the interests of justice cannot be interpreted as a wide net to cover random reopening of cases that have been concluded.

[14] In my view to grant the application will amount to re-opening of a can of worms in cases which were fully ventilated in a court of law by all parties who had a direct and substantial interest. If this were to be acceded to, simply because there is an allegation of remissness on the part of the State Attorney or any legal representative appointed by him, that would open a flood gate to endless litigations. It is true that litigation does not have to be controlled in a straight-jacketed manner but a fair trial implies finality of the issues and not to allow any party who was remiss at the trial to be afforded a second bite especially after judgment. This would open a a wide gate for unscrupulous litigants to fill up gaps which have resulted in the judgment against them. If the defendant suffered, any financial detriment by failing to call an expert witness who was available that injury was self-inflicted and the plaintiff cannot be prejudiced thereby by re-opening the case.

[15] The applicant is an organ of State. An organ of State was present at the trial which took a full course. It would be unfair and prejudicial to the defendant if the State would be allowed a second bite simply because there is an allegation of conducting the trial recklessly. In my view, the investigation of the State Attorney cannot be extended to include re-opening of cases, which were fully canvassed in a court of law. The remedy cannot lie in the re-opening but in the recovery of damages from the State Attorney concerned if there is a room for such recovery.

[16] Mr Willis, who appeared for the applicant, submitted that this is not the re-opening of the case but an application for joinder after which

then the judgment must be rescinded. The fallacy of this argument is that you cannot join a party in a trial which has already been concluded. To allow the applicant at this stage to intervene in the case is tantamount to closing the stable door after the horse has bolted.

[17] Furthermore the applicant made no attempt to explain why this application was not launched during the proceedings or at least even after the ruling on the merits by Pakade J. This is by no means to say that had that been done it would have entitled it to be joined. The order of Pakade J was made in September 2017 and this application was launched almost two years later. The order of Nhlangulela DJP was made in August 2019 almost a year after the merits were disposed of. I am mindful of the fact that the applicant was appointed in July 2019 in terms of the Proclamation. By that time, as far as the process in court was concerned, the horse had already bolted.

[18] The Proclamation under which the applicant claims to have locus standi to institute these proceedings is dated 13 July 2019. The Proclamation does not necessarily relate to this case but relates to:

‘1. Maladministration in connection with the affairs of the office of the State Attorney in relation to work that was performed on behalf of the State in a manner that caused serious harm to the interests of the public or the State.

2. Any unlawful or irregularity conduct by-

(a) employees or officials of the office of the State Attorney; or

(b) any other person or entity,

relating to the allegations referred to in paragraph 1 of this schedule.’

[19] The applicant submits that the State Attorney Mthatha ‘mal-administered’ the trial action on both the issue of liability and quantum and that entitles the applicant to seek rescission of the judgment. The ‘mal-administration’ by the State Attorney Mthatha relates to the failure to call Professor Figagi

For this reason the applicant seeks an order which will effectively reopen the defendant’s case for purposes of leading further

evidence. A party who seeks an order to adduce further evidence must show (i) that the evidence is material, ie likely to have an effect upon the result of the case and (ii) that his failure to adduce the evidence at the proper time was not due to a lack of reasonable diligence upon his part. (See generally Herbstein and Van Winsen, Civil Practice, 2nd ed, pp 410 - 13.)'

[20] It is needless to say that the State Attorney was not involved in the conduct of the trial. Therefore in my view any mal-administration alleged on the part of the State Attorney cannot be attributed to the conduct of the trial.

[21] Given the indubitable scourge of corruption in this country and the hue and cry of the society to stamp it out in all spheres of government, it cannot be denied that the work of entities like the applicant is laudable. This pandemic has resulted in the depletion of the public purse and is beneficial only to the rich rather than the poor community. For this reason it is imperative that where possible the performance of the courageous work by the applicant and other entities empowered to do so in this regard should be encouraged rather than discouraged. There may be merits in the suspicion for corruption in handling medical negligent cases especially in the Eastern Cape. However be that as it may, cases are decided on facts and not on suspicions.

I am not persuaded that this Proclamation authorises the applicant to endeavour to re-open cases already concluded. If it does so in my view it is ultra-vires the powers of the President.

[22] Regarding the interim relief sought the requirements thereof are well established. Mr Schoeman SC who together with Mr Ayerst appeared for the second respondent submitted, correctly in my view that the applicant is seeking a final interdict and has failed to satisfy the requirements thereof. In the light of the view I have taken it is not necessary to deal with those requirements. Once the re-opening of the case and the joinder of the applicant has been refused, it follows that the interdict must fall away.

Costs:

[23] Reading of the founding affidavit was tiring, boring and irritating. Founding affidavit consisted of 60 pages and annexures consisted of 97 pages. The replying affidavit consisted of about 134 pages. Despite attachment of these annexures, no specific portions thereof were referred to both in the founding and replying affidavits. It has often been stated that a party who attaches an annexure to an affidavit is expected to refer to a specific portion thereof upon which it seeks to make out its case.[7]The use of legal argument supported by case law in the founding affidavit is an issue not only relating to wasted costs but it makes the founding affidavit verbose. In that case, one must search diligently and possibly in vain for the main plank of the applicant’s case among a forest of assorted trees. I accept that drafting papers is a matter of style. However, each party is expected to draw papers in such a manner that they afford easy reading and understanding of its case and/or defence. Authorities in support of a party’s case are usually reserved for inclusion in the heads of argument.

The legal conclusions, set out in the founding affidavit and the replying affidavit, were in the nature of arguments, which were supposed to be addressed in the heads of argument.

[22] Notwithstanding the fact that the bulk portion of the founding and replying affidavits consisted of legal argument heads of argument consisted of 214 pages.

Lest it be said that I mean that submissions may not be advanced in the affidavit, this is not so. The point I make is that legal argument in the founding and replying affidavits must be kept to the minimum and be preserved for inclusion in the heads of argument. Affidavits should not be unduly burdened with legal argument.[8] The deponent is merely a witness. Witnesses are not required to argue the case but simply to adduce evidence in support of a party’s

case.

[23] While in certain circumstances it may be necessary to refer to the legal position and/or statutory provision in order to make a particular point or factual assertion, an affidavit should not be used to advance argument, which rightfully belongs to heads of argument. Speaking for myself this style of legal writing is irritating. The replying affidavit ought to be the shortest affidavit dealing with new matters arising from the answering affidavit.

[24] With regard to the application by the applicant for the striking out of certain paragraphs of the opposing affidavit I considered these as technical objections, which do not take the case of the applicant anywhere. The paragraphs sought to be struck out are, in my view, neither vexatious nor scandalous.

[25] In Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and

Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at 439G-H ([2003] 2 All SA 616) at 641b-cor at para 80 Schutz JA remarked:

'There is one other matter that I am compelled to mention - replying affidavits. In the great majority of cases, the replying affidavit

should be by far the shortest. But in practice it is very often by far the longest - and the most valueless. It was so in these reviews. The respondents, who were the applicants below, filed replying affidavits of inordinate length. Being forced to wade through their almost endless repetition when the pleading of the case is all but over brings about irritation, not persuasion. It is time that the courts declare war on unnecessarily prolix replying affidavits and upon those who inflate them.'

In Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA) in para 46, Harms ADP (as he then J was), after quoting Schutz JA, said:

'A reply in this form is an abuse of the court process and instead of wasting judicial time in analyzing it sentence by sentence and paragraph by paragraph such affidavits should not only give rise to adverse costs orders but should be struck out as a whole . . . mero motu ...'

This is precisely the reason why I did not bother to listen to argument about the matters coming out of the replying affidavit. This is a typical example of a case where the court should mero motu strike out the replying affidavit as a whole. In any event, the application for striking out was well founded. In my view, the applicant has not only abused its right to reply but has conducted itself in manner deserving of censure from this court. The second respondent has asked for an order of costs on an attorney and client scale. I see no reason why in the exercise of discretion such order cannot be justified.

[26] In the result I make the following order:

1. The application for rescission and joinder of the applicant is dismissed;

2. The application for a interim and/or final interdict is dismissed.

3. The applicant is ordered to pay costs of this application on a scale as

between attorney and client, such costs to include costs occasioned by employment of two Counsel.

4. The costs of applications for the striking out are to be included in the main application.

_______________________

B R TOKOTA

JUDGE OF THE HIGH COURT

Appearances:

For the applicant

: Mr Willis

Norton Rose Fullbright South Africa

For the second respondent:

A D Schoeman SC

H B Ayerst

Instructed by: Mjulelwa Inc

Date of hearing:

22 October 2020;

Date delivered:

1 December 2020.

[1]Boyce NO v Bloem 1960 (3) SA 855 (T) at 864

[2] Ibid

[3] 1933 AD 141 at 161 - 3.

[4]Knox D'Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 378B.

[5] [1990] ZASCA 43; 1990 (3) SA 116 (A) at 123-124;

[6] 1956 (2) SA 273 (A).

[7]Swissborough Diamond Mines (Pty) Ltd v Govt of the RSA 1999 (2) SA 279 (T) at 324G-H

[8]Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at78I;