Xintolo v Premier of the Eastern Cape Provincial Government and Another (1862/2013) [2017] ZAECGHC 69 (23 May 2017)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 1862/2013

DATE HEARD: 28/04/2017

DATE DELIVERED: 23/05/17

NOT REPORTABLE

In the matter between:

ANDILE PATRICK XINTOLO

APPLICANT

and

THE PREMIER OF THE EASTERN CAPE

PROVINCIAL GOVERNMENT

FIRST RESPONDENT

MEC FOR HEALTH, EASTERN CAPE

PROVINCIAL GOVERNMENT SECOND

RESPONDENT

JUDGMENT

PLASKET J

[1] This is an application in terms of rule 28(4) of the Uniform Rules in which the applicant, Mr Andile Xintolo, seeks to amend his summons and particulars of claim by substituting the MEC for Health in the Eastern Cape Provincial Government as defendant for the Premier of the Provincial Government. The application is opposed by both of these respondents. I am required to decide whether that amendment is competent.

Background

[2] Mr Xintolo instituted a damages claim based on the alleged negligence of medical staff at the Fort Grey Hospital in East London. In the action he cited the Premier as the nominal defendant, alleging that he was vicariously liable for the negligent conduct of the medical staff who treated him.

[3] Prior to the institution of the damages claim, however, Mr Xintolo’s attorneys had sent the notice required by the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 to the Head of the Department of Health. The summons was subsequently served on the Premier care of the State Attorney.

[4] A notice of intention to defend was filed on behalf of the Premier and later an exception was taken on the basis that the particulars of claim did not comply with rule 18(10) concerning particularity relating to the quantification of damages. The particulars of claim were amended so that the cause of complaint was removed.

[5] The plea was then filed. It included a special plea of misjoinder: the points taken were that the Premier was not, in law, the nominal defendant vicariously liable for the conduct of the medical staff at Fort Grey Hospital; and that the particulars of claim did not establish a cause of action against the Premier thereby rendering the claim unenforceable against him. The Premier also pleaded over on the merits.

[6] In response to the special plea Mr Xintolo has sought to amend the particulars of claim to substitute the MEC for Health for the Premier. Objection was made to the proposed amendment on the basis that it sought to introduce a new party, the MEC for Health, in circumstances in which the claim against him had prescribed. This opposed application is the result.

Amendments of pleadings: legal principles

[7] The granting or refusing of an amendment involves the exercise of a discretion that must be exercised judicially.[1] In Moolman v Estate Moolman & another[2] Watermeyer J held that the ‘practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed’.

[8] The reason for this approach to applications to amend was crisply stated by Wessels J in Whittaker v Roos & another; Morant v Roos & another:[3]

'This Court has the greatest latitude in granting amendments, and it is very necessary that it should have. The object of the Court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts. It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it. But we all know, at the same time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a slip of the pen, or error of judgment, or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal. Therefore, the Court will not look to technicalities, but will see what the real position is between the parties.'

[9] Cases like the present, in which a plaintiff wishes to correct the citation of the defendant by way of amendment, tend to generate their own particular problems. Invariably – and this is so in this case – more than three years have elapsed since the cause of action arose when the application for amendment is made. That raises the argument that if the amendment amounts to introducing a new party, as opposed to the correction of an incorrect citation of a defendant, its grant will have the effect of resuscitating a prescribed claim. On that account, the argument proceeds, the defendant is prejudiced (in a way that cannot be remedied by a costs order or a postponement) and so the amendment should not be granted.

[10] Commenting on these types of cases, Marais J, in Du Toit v Highway Carriers & another,[4] said:

‘The point that a “wrong” defendant has been cited not infrequently rears its head when the defendant pleads, often after

prescription has run. It is often the case that the intention of the plaintiff is to cite the entity conducting a specific business at a specific address and the defendant served with the summons is in no doubt that it is indeed the intended defendant. In such a case courts should lean towards allowing amendments which would correct inadvertent incorrect descriptions and should not be astute to refuse such amendments involving the description of the defendant on pure semantic and legalistic grounds which ignore the realities of the situation as perceived by the parties themselves. By so refusing an amendment at the instance of the defendant the courts lend themselves to an exercise in formalism, the object of which is to enable a defendant to escape a summons which it knows is directed to it, and often to wholly defeat a claim which has by then prescribed. Courts should not formalistically ignore the fact, if such it be, that the party now sought to be accurately described was the party who the plaintiff intended to sue, even though the plaintiff had only a vague or fussy idea of the correct description of the defendant, and the defendant itself knew very well that the summons was directed to it when it was served.’

[11] The question to be asked in cases such as this is whether the summons that was served on the ‘wrong’ defendant interrupted prescription. Section 15(1) of the Prescription Act 68 of 1969 provides that the ‘running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt’.[5]

[11] In Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd[6] Heher JA explained why a different approach is justified in respect of incorrectly cited defendants as opposed to incorrectly cited

plaintiffs, for purposes of the application of s 15(1) of the Prescription Act 68 of 1969. He said:[7]

‘Secondly, an incorrectly named debtor falls to be treated somewhat differently for the purposes of s 15(1). That that should be so is not surprising: the precise citation of the debtor is not, like the creditor's own name, a matter always within the knowledge of or available to the creditor. While the entitlement of the debtor to know it is the object of the process is clear, in its case the criterion fixed in s 15(1) is not the citation in the process but that there should be service on the true debtor (not necessarily the named defendant) of process in which the creditor claims payment of the debt. The section does not say “. . . claims payment of the debt from the debtor”. Presumably this is so because the true debtor will invariably recognise its own connection with a claim if details of the creditor and its claim are furnished to it, notwithstanding any error in its own citation. Proof of service on a person other than the one named in the process may thus be sufficient to interrupt prescription if it should afterwards appear that that

person was the true debtor.’

[12] As was pointed out by Van Heerden J in Embling & another v Two Oceans Aquarium CC[8] three elements are required to be present in order to interrupt prescription. They are that: (a) a process; (b) must be served on a debtor; (c) in which a claim for payment of a debt is claimed.

[13] Finally, as the debtor in this case is the State – in the form of a provincial government – the State Liability Act 20 of 1957 applies. Section 1 allows for claims to be brought in a competent court against the State. Section 2 deals with how such claims are to be brought. This section provides:

‘(1) In any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned must be cited as nominal defendant or respondent.

(2) The plaintiff or applicant, as the case may be, or his or her legal representative must, within seven days after a summons or notice instituting proceedings and in which the executive authority of a department is cited as nominal defendant or respondent has been issued, serve a copy of that summons or notice on the State Attorney.’

Has prescription been interrupted?

[14] Clearly, the summons is a process. Section 15(6) of the Prescription Act defines the term to mean ‘any document whereby legal proceedings are commenced’.[9] Secondly, the process was served. It was served on the State Attorney who is authorised to accept service on behalf of the State by s 2(2) of the State Liability Act. Whether the Premier of the province, as nominal defendant, is a debtor for purposes of the Act is the core issue for decision. Thirdly, the summons claims payment of a debt.

[15] The true defendant is that manifestation of ‘the State’ known as the Government of the Eastern Cape Province. The Premier was cited as a nominal defendant. That was clearly a mistake because s 2(1) of the State Liability Act requires the MEC of the department concerned to be cited as nominal defendant when the provincial government is sued. The amendment seeks to remedy this mistake.

[16] The Premier must have known that the provincial government was the true target of the claim – that the summons was intended for it. That was clear from its terms. He was consequently, as nominal defendant, a debtor for purposes of s 15(1) of the Prescription Act >

[17] This case does not concern proceeding against a new party as defendant, as was the case in MEC for Safety and Security (Eastern Cape Province) v Mtokwana.[10] In that case, the respondent on appeal had sued the MEC for Safety and Security in the provincial government for the unlawful acts of policemen who had allegedly set police dogs on him. When he realised that the MEC was not vicariously liable for the acts and omissions of members of the South African Police Service, but that the Minister of Safety and Security, in the national sphere of government, was, he sought to amend his summons by substituting the Minister for the MEC. Navsa JA held that in these circumstances, the respondent ought to have withdrawn his action against the MEC and issued summons against the Minister or, if he had intended merely to have joined him as a party along with the MEC, he ought to have utilised rule 28 of the Magistrates’ Courts Rules.[11] In other words, the respondent had sued the wrong defendant – the Eastern Cape Provincial Government, nominally represented by the MEC for Safety and Security – whereas he ought to have sued the Government of the Republic of South Africa, nominally represented by the Minister of Safety and Security.

[18] This case is different. The true defendant remains the provincial government. Only the nominal defendant changes from the head of the executive authority of the province to the MEC specifically appointed by the Premier to be responsible for the management of the Department of Health. That correction, in order to bring the citation of the nominal defendant into line with the terms of the State Liability Act, may be effected by an amendment.

[19] The summons was served on the State Attorney. If the MEC had been cited, as he should have been, the summons would still have been served on the State Attorney. There can, in these circumstances, be no possibility of prejudice.

[20] As a result, I conclude that the summons was a process that interrupted prescription against the true defendant, the provincial

government. That being so, and the application to amend not having been made in bad faith, the amendment may be effected. The application must therefore succeed.

[21] I make the following order.

(a) The applicant is granted leave to amend the summons and particulars of claim in the following manner:

(i) By the substitution of the Premier of the Eastern Cape Provincial Government referred to in the summons with the following:

‘THE MEMBER OF THE EXECUTIVE FOR HEALTH, EASTERN CAPE PROVINCIAL GOVERNMENT in his/her capacity as such, and therefore as the nominal Defendant of all claims arising against the Eastern Cape Provincial Department of Health (“the Department”), and the Fort Grey Hospital (“the Hospital”), who is cited herein care of The State Attorney, 1st Floor, Permanent Building, cnr Oxford and Terminus Streets, 42-46 Oxford Street, East London (“the Defendant”).’

(ii) By the substitution of paragraph 2 of the Particulars of Plaintiff’s Claim with the following paragraph:

‘2 Defendant is THE MEMBER OF THE EXECUTIVE FOR HEALTH, EASTERN CAPE PROVINCIAL GOVERNMENT in his/her capacity as such, and therefore as the nominal Defendant of all claims arising against the Eastern Cape Provincial Department of Health (“the Department”), and the Fort Grey Hospital (“the Hospital”), who is cited herein care of The State Attorney, 1st Floor, Permanent Building, cnr Oxford and Terminus Streets, 42-46 Oxford Street, East London.’

(b) The respondents are directed to pay the applicant’s costs.

________________________

C Plasket

Judge of the High Court

APPEARANCES

For the applicant: Mr JJ Botha SC instructed by DSC Attorneys, Cape Town and Dold and Stone, Grahamstown

For the respondent: Mr BL Boswell instructed by Whitesides, Grahamstown

[1] Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 243; Caxton Ltd & others v Reeva Forman (Pty) Ltd & another [1990] ZASCA 47; 1990 (3) SA 547 (A) at 569G.

[2] Moolman v Estate Moolman & another 1927 CPD 27 at 29. See too Affordable Medicines Trust & others v Minister of Health & others [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) para 9.

[3] Whittaker v Roos & another; Morant v Roos & another 1911 TPD 1092 at 1102. See too Rosenberg v Bitcom 1935 WLD 115 at 117.

[4] Du Toit v Highway Carriers & another 1999 (4) SA 564 (W) at 569J-570D.

[5] Section 15(2) is not applicable in this case. It allows for prescription to be interrupted by a debtor acknowledging liability.

[6] Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA).

[7] Para 18.

[8] Embling & another v Two Oceans Aquarium CC 2000 (3) SA 691 (C) at 697A.

[9] See too Embling (note 8) at 697C-698B.

[10] MEC for Safety and Security, Eastern Cape v Mtokwana 2010 (4) SA 628 (SCA).

[11] Para 14.