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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

                                                                                                            Case No: 577/2018 

In the matter between:

KHUSELWA VEYITSHILE                                                      Applicant

and

MEC FOR HEALTH, EC PROVINCE                                      First Respondent

SPERINTENDENT GENERAL, DEPARTMENT OF               Second Respondent

HEALTH, EASTERN CAPE PROVINCE                                              

___________________________________________________________________

JUDGMENT

___________________________________________________________________

Mfenyana AJ

Background

[1]        While what served before me is an interlocutory application, the process has rather unfortunately, been a convoluted one. This convolution accounts for much of the long, and unfortunate history of this matter in what would otherwise appear to be a simple application. The plaintiff instituted proceedings against the defendants for damages allegedly arising from the negligence of the employees of the defendants. The action is defended by the defendants and they have raised two special pleas; (i) that the plaintiff’s claim has prescribed,  and (ii) that the plaintiff has not complied with section 3(1) and (2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act) which requires the plaintiff to, within six months of the debt becoming due, serve a notice of her intention to institute legal proceedings against the defendant.  On 26 February 2019 the plaintiff brought an application (Initial application) seeking a declaratory order that her claim had not prescribed, an order condoning the late filing of the plaintiff’s notice in terms of the Act, and seeking costs against the defendants on a scale as between attorney and client, jointly and severally, including the costs of two counsel for preparation, drafting of heads and consultation, in the event of opposition. The defendants did not oppose the application.

[2]        The matter served before Van Zyl DJP who declined to hear the matter and referred it for caseflow management. According to the defendants, the honourable judge believed that the matter did not belong there and remitted the matter to caseflow management.  On 15 March 2019 the parties appeared before Griffiths J for caseflow management. Prior thereto, the plaintiff sought a concession from the defendants to the effect that the matter had to be dealt with by means of caseflow management, failing which the plaintiff would request that the matter be remitted to motion court and would seek a cost order against the defendants. At the caseflow management conference, the defendants’ legal representative  stated that the defendants were not opposing the order sought, but were not agreeing thereto either. Griffiths J referred the matter back to motion court for hearing with the specific instruction that the hearing of the matter be expedited to 26 March 2019. On 20 March 2019 the applicant brought another application (supplementary application) in terms of which she, in addition to the first application, sought against the defendants, costs of both applications, including costs of two counsel for preparation, drafting heads of argument, and consultation, the costs of the caseflow management conference as well as travelling and accommodation costs for the defendants’ legal representatives. The defendants opposed this application. In opposing the (supplementary) application, the defendants state that it is unreasonable for the plaintiff to seek costs against them as they did not oppose the application and the application was in any event necessitated by the plaintiff’s own failure to comply with the law, and for which they then had to seek condonation from the court, which condonation the defendants were unable to grant. It is on that basis that the present application serves before this court.

Issues for determination

[3]        What stands to be determined by this court is:

(a)       Whether or not the plaintiff’s claim has become prescribed;

(b)        whether the plaintiff’s failure to comply with section 3(1)(a) and (2)(a) of the Act should be condoned;

(c)        whether the defendant should pay the costs of the two applications, and the costs of the case flow management conference.

Condonation

[4]        Section 3(4) of the Act states:

(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.

[5]        It flows from the above that for the court to grant condonation, the claim sought to be enforced must be extant. Thus for the purposes of the Act, the issue of condonation is intricately linked to whether the claim has become prescribed or not.

[6]        In these proceedings the application seeks an order declaring that the claim has not so prescribed. This inter alia, is in terms of the Act, a determinant for whether her non- compliance may be condoned, and in effect whether the claim may be proceeded with. This is so, as a finding that the matter has become prescribed would be dispositive of the entire cause of action.

[7]        The defendants allege that the plaintiff’s claim has become prescribed. They have raised a special plea to that effect. This is denied by the plaintiff who states that she only became aware of the existence of a possible claim against the defendants in July 2017 when she consulted with her present attorneys of record on 9 September 2017. Her attorneys shortly thereafter sought to obtain the plaintiff’s medical records from the defendants in order to establish the claim. After a protracted process to obtain the documents, her attorneys received only part of the documents and her attorneys immediately thereafter on 4 May 2018 dispatched the requisite notice to the defendants. They issued a summons in July 2018. The plaintiff  avers that it is only at this time that the debt became due and that prescription only started to run from this time. The defendants do not gainsay this. They did not oppose the application and in this respect, the application remains unopposed.

[8]        Mr Pienaar, counsel on behalf of the plaintiff referred the court to a decision of this court in Ndaliso v MEC for Health, Eastern Cape[1] where the court held that the onus in respect of the special plea rested on the defendant. This is the correct position. It is also my view that the present case is distinguishable from Ndaliso in this regard, in that the plaintiff in that matter delivered a replication wherein the plaintiff set out the basis of their contention that the claim had not prescribed. In the present matter no replication was delivered. It was argued on behalf of the plaintiff that the plaintiff is not obliged to replicate. That is indeed the case. However in the present case the plaintiff did so at her own peril as it seems that the replication would have put the matter of prescription, which remains unopposed, to rest.  What the plaintiff elected to do was to bring the initial application in which it sought a declaratory order on the issue of prescription, as well as an order condoning the late filing of the notice, albeit on a different basis than that raised by the defendants, i.e. that it was 2 months out of time. Nothing much turns on this. One would therefore presume that to be the basis that the defendants did not oppose the initial application. I am satisfied that the plaintiff became aware of her claim against the defendants when she went to consult with her attorneys  in September 2017 and the claim has thus not become prescribed.

[9]        In dealing with an application for condonation, the court will consider all the prerequisites set out in section 3(4)(b). It is trite that for good cause to be said to exist the court will first take into account all the relevant issues including the reasons for the delay, prospects of success and the interests of justice. In Silber v Ozen Wholesalers (Pty) Ltd[2] the Appellate Division (as it then was) stated the following with regard to good cause:

“…the defendant must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives.”[3]

[10]      The determination must thus lean towards those factors which ensure fairness in granting the application. It cannot be gainsaid that the plaintiff has shown good cause why the notice could not be served on time, most of which time, as the plaintiff states, was spent trying to obtain the plaintiff’s medical records from the defendants. She was 17 when the alleged damages were incurred and states that she had no knowledge that her experience could lead to a claim against the defendants. In my view, she has a reasonable prospect of success in the matter.

[11]     The defendants do not aver that they are unreasonably prejudiced by the delay. I take this to mean that they will not suffer any unreasonable prejudice. Overall, the interests of justice will be better served if condonation is granted.

[12]      As already stated, the issue of costs took centre stage in these proceedings to the extent that counsel for both the plaintiff and the defendants submitted that this was the only issue to be considered.  I do not agree with this approach. The issue of costs only arises following, and is incidental to an application or action of some kind. It would therefore be amiss of the court to merely deal with the issue of costs which in any case, is inextricably linked  to the merits of the application/s. Whether the matter is opposed or not does not detract from the fact that in one or other way, the application must be dealt with for the issue of costs to arise. Before I deal with the respective cost orders sought by the plaintiff, it is imperative to set out the relevant principles in respect of costs.

Costs in general

[13]      The issue of costs is a matter within the discretion of the court. The general rule is that costs follow the result. What this means is that the successful party should be entitled to costs. This rule is however not cast in stone and there are various instances where the courts have declined to award costs to a successful party. This bears on the meaning and indeed the extent of the success in each given matter. These exceptions to the notion that the successful party should get an award of costs are inter alia influenced by the conduct of the parties and the nature of the matter.

Costs of the first (initial application)

[14]      In this application the plaintiff sought the following order:

1.         Declaring that plaintiff’s claim had not prescribed.

2.         That the late service by plaintiff of the notice in terms of s3 of the Institution of Legal proceedings Against Certain Organs of State Act 40 of 2002 be condoned.

3.         That defendants be ordered to pay the costs of the application, jointly and severally, including the costs of two counsel and including counsel’s costs of consulting and preparing the application and preparing heads of argument, if any, only in the event of defendants opposing the application.

4.         That further and/or alternative relief be granted.

[15]      It is clear from this and the relief sought, that the plaintiff did not intend that the defendants should pay costs if they did not oppose the application. They did not oppose. The plaintiff contends that she is entitled to her costs as they are occasioned by the defendants not agreeing to the relief sought. Nothing could be further from the truth. The defendants did not oppose this application. The plaintiff’s own prayers are in any event, dispositive of this issue.  She sought costs only in the event of opposition. The application was set down unopposed, but was removed from the roll at the instance of the court, and remitted to caseflow management. The defendants had no hand in it. There is thus no conceivable reason why the defendants should be required to pay such costs

Costs of the Caseflow Management conference

[16]      Caseflow Management is by its nature administrative, and allows the court to assist the parties with the administration and management of their litigation. In this case, the court remitted the matter to caseflow as the learned judge was of the view that it belonged there. What the court did not at this stage consider was that a condonation application could very well be heard in motion court as this has been the case with such applications, whether opposed or unopposed. The matter could not be resolved at the caseflow management conference, as the defendants, while not opposing the relief sought by the plaintiff, refused to concede thereto and were correctly referred back by the case management judge to motion court on an expedited date. The plaintiff avers that the defendants’ refusal to concede meant that the defendants were opposing the application. She further avers that as the defendants had raised special pleas, it was incumbent on them to withdraw the special pleas if they no longer wished to proceed with them. I do not share this view. The special pleas were properly raised in my view. I do not understand the plaintiff’s case to be that the defendants were not entitled to raise the special pleas. All that was left was for the plaintiff to approach the court in accordance with section 3(4)(b). The parties were ordered by the court to attend a caseflow management conference. Both parties incurred costs as a result thereof.  It seems fair to me that the costs of caseflow management should be in the cause.

Costs of the present (supplementary) application

[17]      The plaintiff seeks costs of the application jointly and severally, including costs of two counsel, counsel’s costs of consulting, preparing for the application and preparing heads of argument against the defendants as well as the costs of travelling and accommodation for the plaintiff’s legal representatives.  She avers further that the defendants’ refusal to consent to the condonation of the late filing of the section 3(1)(a) notice compelled the plaintiff to bring the supplementary application. This is not correct. The application for condonation is prescribed by section 3(4)(a) of the Act which states that the plaintiff may make application to court to condone the non-compliance after satisfying itself with the stipulated requirements. This is not to say that matters may not be settled between the parties but this is not the case in this matter.

[18]      In their answering affidavit to the supplementary application, the defendants state that when the matter was remitted to the motion court after the caseflow management conference, they were under the impression that the plaintiff would re-enrol the initial application. They further state that they were entitled to oppose the costs sought by the plaintiff against them as the plaintiff is not entitled to costs. They aver that the plaintiff is not entitled to costs as the application was brought as a result of the plaintiff’s non- compliance with the Act and not as a result of any failure on the part of the defendants. They further aver that they are not able to agree to condonation as only the court is empowered to grant condonation in terms of the Act. While this suggestion is not entirely correct, it would not avail the plaintiff much if the defendant consented to the condonation as this, despite lack of opposition, has to be ordered by the court which had to consider all the prerequisites set out in section 3(4)(b).

Mr James, counsel for the defendants argued that the plaintiff is seeking indulgence from the court and should therefore bear the costs of the application. He argued that the defendants were compelled to oppose the cost order sought by the plaintiff and that is the only basis of their opposition, considering that the plaintiff has not complied with the Act. He added that the plaintiff is an honest litigant and that the court should show its displeasure by granting a punitive cost order against the plaintiff’s legal representatives. In my view the defendants have not made out a case in their papers for  this relief. This was raised from the bar without giving the plaintiff an opportunity to respond thereto.  I an therefor not inclined to grant this relief.

[19]      I have already stated that the application for condonation is prescribed by law where the plaintiff has not complied with the provisions of the Act. It being common cause that the plaintiff’s notice was served out of time, there can be no merit to the plaintiff’s contention that the defendants are responsible for the costs incurred by the plaintiff simply by raising special pleas. It is therefore not necessary to deal with the specific costs sought by the plaintiff as the defendants are not liable for payment of these costs.

[20]      Although I have found that the plaintiff has made out a case for the granting of condonation and the declaratory order, the defendants did not oppose this relief. They only opposed the cost order. The plaintiff was not successful in this regard.

Order

[21]      In the result, I make the following order:

(a)          It is declared that the plaintiff’s claim against the defendant has not prescribed.

(b)          The application for condonation is granted.

(c)          The applicant is ordered to pay the costs of the supplementary application.

(d)          The costs of the case flow management conference shall be costs in the cause.

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S. M. MFENYANA

ACTING JUDGE OF THE HIGH COURT

Counsel for the applicants:        Adv. B. J Pienaar SC

Instructed by:                             M K Majavu & Associates

Counsel for the defendant:        Adv. N. James

Instructed by:                             Smith Tabata Attorneys

Date heard:                                5 December 2019   

Date handed down:                   10 March 2020

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