T.H.Q obo A.J v Member of the Executive Council for the Department of Health, Eastern Cape (1295/2012) [2017] ZAECMHC 39 (10 October 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION – MTHATHA]

CASE NO.: 1295/2012

HEARD ON: 02 OCTOBER 2017

DELIVERED ON: 10 OCTOBER 2017

In the matter between:-

T. H. Q.

obo A. J.

PLAINTIFF

And

MEMBER

OF THE EXECUTIVE COUNCIL

FOR THE DEPARTMENT OF HEALTH,

EASTERN

CAPE

DEFENDANT

JUDGMENT

HINANA AJ

[1] The plaintiff is T. H. Q. (the plaintiff), who is an adult female and the mother A. J. (the minor child) who was born on [...] 1996. She has sued the MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF HEALTH, EASTERN CAPE (the defendant) in her representative capacity and on the basis that on 28 May 2009 and at Bedford Hospital (the hospital) in the Province of the Eastern Cape, she entered into an oral agreement with the defendant whereupon the tacit and/or express and/or implied terms of the agreement were that:

“[3.4.1] the plaintiff’s son, Master A. J. will be admitted at the

hospital;

[3.4.2] qualified medical doctors and/or nurses employed by the department and stationed at Bedford hospital will medically examine and treat the plaintiff for a fracture of the right distal humeral fracture and a left sided proximal ulna fracture (the condition) and will administer and provide medication to him for his condition (the professional services).”

“[4.2] In breach of the terms of the agreement, medical doctors and/or nurses employed by the department and stationed at the hospital (the medical doctors and/or nurses) performed the professional services negligently in one or more of the following respects…..”[1]

[2] Plaintiff contends that she complied with the provisions of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002[2].

[3] Summons were served on the defendant on 28 November 2012[3]. The defendant served and filed its plea on 02 August 2013[4] and raised a special plea in the following manner:

“[5] In the instant matter, though compliance with the Act is alleged by the plaintiff in her particulars of claim, she has failed to issue the requisite notice as envisaged by Section 3 (2) (a) of the Act.

[6] Short of an application and the grant of condonation by the Court as envisaged in Section 3 (4) (a) of the Act, the plaintiff is barred from proceeding with these proceeding(s)”[5]

[4] The plaintiff served[6] and filed her replication and avered that;

“[2]

The plaintiff disputes that she did not issue a notice prior to the institution of these proceedings. On 22 May 2012, the plaintiff

issued a notice against the defendant and that notice was sent by registered post. A copy of that notice is attached hereto and marked “A” and a copy of the registered slip is attached hereto and marked “B”.[7]

[5] Even though the plaintiff averred that annexures “A” and “B’ were attached to the replication, such were not attached to the bundle in the court file. However, by consent both parties handed in a copy of the Statutory Notice and proof of postage of which both were admitted as exhibits “AA” and “BB” respectively.

[6] On 02 October 2017, Mr Nonxuba, the attorney for the plaintiff and Mr Sishuba, Counsel for the defendant agreed that this Court was seized with this matter and asked this Court to entertain and hear argument on the special plea.

[7] In his argument, Mr Sishuba’s submissions were based on two (2) points being the following:

7.1 Failure to issue a notice within six (6) months; and

7.2 Annexure “AA” was not sent to the functionary of the Department of Health in the Eastern Cape, being the Head of the Department (the HoD).

[8] In his submissions with regard to the failure to issue a notice within six (6) months, Mr Sishuba submitted that:

8.1.1 Plaintiff’s cause of action arose on 28 May 2009.

8.1.2 Even if exhibits “AA” and “BB” were admitted, exhibit “AA” is dated 22 May 2012 and exhibit “BB” is dated 23 May 2012. Six (6) months would have lapsed in November 2012. In the absence of an application for condonation, showing good cause why exhibit “AA” was not issued within the period of six (6) months and affording this Court an opportunity to exercise its discretion whether to grant condonation or not, the special plea must be upheld with costs.

8.2 He submitted that even if exhibit “BB” was correct, that does not assist the plaintiff because it is dated 23 May 2012.

8.3 He referred this Court to paragraph 11 of exhibit “AA” wherein the following is stated:

“[11] On 29 March 2012, the plaintiff obtain (sic) an opinion from his Orthopaedic Surgeon wherein, he advised that the treatment or lack thereof at Bedford hospital was sub-standard and the hospital staff acted negligently”

8.3.1 He argued that plaintiff’s cause of action did not arise on 29 March 2012 as demonstrated in exhibit “AA” but on 13 July 2009. In this regard, he submitted that the alleged negligent conduct happened on 13 July 2009 and therefore, for the plaintiff to contend that she became aware of her cause of action on 29 March 2012 is incorrect.

[9.1] Arguing further, he submitted that the correct functionary is the HoD in the Department of Health, Eastern Cape. It is common cause that exhibit “AA” is addressed to the defendant and not to the Head of Department in terms of the Act.

[9.2] He argued that in view of the two points raised above, the special plea must be upheld with costs and the plaintiff be afforded an opportunity to bring an application for condonation, if so advised.

[10] Mr Nonxuba, premised his argument on the following:

10.1 Plaintiff’s cause of action arose on 29 March 2012 when she obtained an opinion from the Orthopaedic Surgeon advising that:

“…the treatment of lack thereof at Bedford Hospital was sub-standard and the hospital staff acted negligently”.

10.2 According to him, it is incorrect for the defendant to allege and rely on the date the plaintiff underwent an operation, being 30 July 2009 as the date on which the cause of action arose. He submitted that the plaintiff only knew of her cause of action when advised by the Orthopaedic Surgeon.

10.3 He submitted that exhibit “AA” was issued within six (6) months from the date when plaintiff became aware that there was a cause of action and therefore there is no need for an application for condonation.

10.4 He further submitted that exhibit “BB” was correctly served on the defendant because the Institution of Legal Proceedings against certain Organs of State Act must be read in conjunction with the State Liability Act No. 20 of 1957, as amended. According to him, service on the defendant was proper.

10.5 He made a point that the special plea was not raised in a proper format in that the issue of service and non-service of exhibit “AA” on the HoD was not raised in anyway except the only issue which related to the issuing of exhibit “AA” within six (6) months from the date upon which the plaintiff became aware of her cause of action.

ANALYSIS

[11] The Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002[8] provides that:

“3 (1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless –

(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings –

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).

(2) A notice must –

(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4 (1); and

(b) briefly set out –

(i) the facts given rise to the debt; and

(ii) such particulars of such debt as are within the knowledge of the creditor.”

[12] It is apposite for this Court to make reference to exhibit “AA” specifically paragraph 12 which reads as follows:

“[12] we hereby request you to consent to the late notice to institute legal proceedings against yourself, as he was unaware that he has a claim against yourself until obtained an opinion from Dr Olivier.”

[13] Subsections 3 (a) and (b) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002 provides that:

“(3) For purposes of subsection (2) (a) –

(a) 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 willfully prevented him or her or it from acquiring such knowledge;

and

(b) a debt referred to in section 2 (2) (a), must be regarded as having become due on the fixed date.”

[14] This Court finds it appropriate to consider whether and in view of paragraphs 11 and 12 of exhibit “AA” read together with paragraph 3.1 of the plaintiff’s amended particulars of claim, when did the plaintiff become aware of her cause of action against the defendant. As stated earlier Mr Sishuba submitted that plaintiff’s cause of action arose on 28 May 2009 even though exhibit “AA” demonstrates that plaintiff became aware of her cause of action on 29 March 2012. I did not understand Mr Sishuba’s submissions to be that the notice was issued beyond the period of six (6) months from 29 March 2012, but he strongly argued that the correct date upon which the cause of action arose is 28 May 2009.

[15] I disagree with Mr Sishuba in this regard. In my view, the date upon which the debt became due is the date when creditor became aware of the identity of the defendant and his or her or its cause of action. In this case the date is 29 March 2012 and this is clearly reflected in exhibit “AA”. I find support in this regard from Section 12 (3)[9] of the Prescription Act (the Prescription Act) which provides as follows:

“(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable

care.”

[16] Section 12 (3) of the Prescription Act is couched virtually in the same way as section 3 (3) (a) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002. I find that on the facts placed before me and in the absence of any evidence suggesting otherwise, the plaintiff became aware of her cause of action on 29 March 2012 when informed by the Orthopaedic Surgeon that:

“The treatment or lack thereof at Bedford hospital was sub-standard and the hospital staff acted negligently.”

[17] Above all, the replication is clearly premised on section 3 (2) (a) and, in my view, section 3 (4) (a) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002 does not find application. For completeness section 3 (4) (a) provides that:

“(4) (a) 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.

(b) The court may grant an application referred to in paragraph (a) if it is satisfied that-

(i) the debt has not been extinguished by prescription;

(ii) good cause exists for the failure by the creditor; and

(iii) the organ of state was not unreasonably prejudiced by the failure.

(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.

[18] Accordingly, I find that the application for condonation as envisaged in section 4 (a) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002, becomes relevant and appropriate where the creditor served a notice in terms of section 3 (1) (a) beyond the six months period as envisaged in section 2 (a) of the same Act. Most significantly, what has been alluded to in this paragraph finds its application where the creditor, despite “having knowledge of the identity of the organ of state and the facts giving rise to the debt” fails to issue and serve the notice (emphasis added).

[19] In his submissions, Mr Sishuba relied on the case of Madinda v Minister of Safety and Security[10] read together with the case of Minister of Safety & Security v De Witt[11] and concluded that this Court is bound by the two (2) judgments. I agree. However, I find that the two (2) judgments relied upon by Mr Sishuba are distinguishable from the facts of this case in the following respects:

19.1.1 The Madinda judgment dealt with and is the leading case on the interpretation and analysis of section 3 (4) (b) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002; and

19.1.2 In De Witt’s judgment C.H Lewis JA summarized the issue as follows:

“At issue in this case is a different question: where no notice is given by the creditor, or where the notice is defective in some respect, but the legal proceedings are instituted before the expiry of the prescription period, may a court condone the failure to give notice, or the giving of defective notice, after the summons or application has been served?”[12]

19.2 On any interpretation of the two (2) judgments relied upon by Mr Sishuba, I find that such reliance lacks merit.

[20] With regard to the second point raised in paragraph 7.2 above, this was never pleaded nor does it appear in the replication. Service of a notice is governed by section 4 (1) of the Institution of Legal Proceedings against certain Organs of State Act, No. 40 of 2002. On any interpretation of the replication, the issue of service is not implied. As stated earlier that the replication was premised on section 3 (2) (a) read with section 3 (4) (a) of the Act referred to herein.

[21] Despite exhibit “AA” having been served on the defendant in terms of exhibit “BB”, the defendant did not and never:

21.1 raised this issue as a special plea; and

21.2 did not contend any prejudice.

[22] This Court is mindful of the fact that in its plea over read together with the special plea, the defendant neither raised the issue of service on the defendant instead of the Head of Department.

[23] I disagree with the submissions made by Mr Nonxuba that service of the notice to the defendant was proper. It is trite that exhibit “AA” should have been served on the Head of the Department of Health. However, despite service on the defendant, the defendant pleaded and did not raise this issue and accordingly, and in my view, the defendant cannot raise this issue from the bar.

[24.1] The purpose of the notice is to enable the defendant to conduct some investigations and

“… to meet the difficulty which the Administration, with its large and shifting body of casual laboures and employees, might experience in having to investigate or meet a charge of negligence in its Administration unless this charge is made and sued upon promptly”[13].

[24.2] I find that the purpose of the notice is still applicable in this matter. As stated earlier the defendant neither pleaded any prejudice nor inconvenience.

[25] On the conspectus of the facts placed before me, I find that the special plea must fail and accordingly the following order is made:

The special plea is dismissed with costs.

_____

MN HINANA

ACTING

JUDGE OF THE HIGH COURT

Attorney for the Plaintiff: Mr Z.M Nonxuba

Instructed by Nonxuba Inc.

c/o Mgxaji Inc.

Mthatha

Counsel for the Defendant: Mr M.H Sishuba

Instructed by State Attorney

[1] Page 7 of Index to bundle of pleadings

[2] Para 2, ibid

[3] Return of service, page 13 of the bundle for application for consolidation

[4] page 19, ibid

[5] Page 14, ibid

[6] On 16 October 2013, page 22 ibid

[7] Page 21, ibid

[8] See footnote 2 above

[9] Act 68 of 1969, as amended

[10][10] 2008 (4) SA 312 (SCA)

[11] 2009 (1) SA 457 (SCA)

[12] See footnote 11 at para 5

[13] Labuschagene v Labuschagene 1967 (2) SA 575 (A) at 579 C – D.