NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)

CASE NO. 507/2017

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF HEALTH,
EASTERN CAPE							Applicant (Defendant)

ANDISWA BOOI							Respondent (Plaintiff)

JUDGMENT IN RESPECT OF
APPLICATION FOR LEAVE TO APPEAL

HARTLE J

[1]	The applicant (the defendant in the action) seeks leave to appeal against both my “judgment and orders granted … on 18/19 April 2023” in the Bhisho High Court.

[2]	Mr. Mtshabe clarified at the outset that this had reference to only two of the three orders which I granted on these days.  The first order under challenge concerns my refusal to have allowed a postponement of the trial (application for which was launched at 10h00 on the morning of trial) and directing the defendant to pay costs on a punitive scale. The ruling in this respect was made on day 2 of the proceedings on 18 April 2023 and reads as follows:

“The defendant’s application for a postponement of the trial is dismissed with costs on the scale of attorney and client.  Such costs to include the wasted costs of trial of 17 and 18 April 2023.”

[3]	After this refusal the respondent (the plaintiff in the action) argued the preliminary point that there was no defence or dispute to the compromise claim and requested me to issue a ruling upfront regarding this aspect.  

[4]	 In this respect I issued a ruling on 19 April 2023 that as far as I was concerned the concessions made by way of the parties’ agreements stood and bedevilled the defendant going forward even though I could not at that juncture pronounce on her public healthcare defence that was technically still pending, albeit in my view as nothing more than a useless appendage in the light of what the triable issues were on the pleadings. 

[5]	  Mr. Mtshabe confirmed for present purposes that that ruling is not in contention.

[6]	  I observed in the reasons which I issued on 19 April 2023 (which spoke to both my decision to refuse the very belated application for a postponement of the trial and the status of the parties’ pleadings), that the concessions made by the parties that compromise the issues going to future medical expenses were certainly going to redound to the defendant’s disadvantage concerning the utility of the public health care defence that had subsequently been raised on the pleadings, a pronouncement Mr. Mtshabe appeared to accept although he indicated that the defendant was not abandoning her new defence, as if this made a difference.  He repeated in the present application that the defendant was not challenging my ruling of 19 April 2023 regarding how I saw the triable issues on the pleadings.

[7]	  He clarified through that the application was definitely directed at the quantum order which I issued on 19 April 2023 since the defendant was forced to agree to pay damages in the sum of R24 583 250.00 without the benefit of having been heard on the public health care defence raised latterly.

[8]	In my view the defendant appears to have missed the significance of the fact that it was the compromise that condemned her to the amount of damages awarded and not my refusal to have given her the space to deal with the public health care defence.  Indeed it was not my order refusing the postponement that closed the door to her to deal with this, but it was the compromise itself that put paid to her belated new defence.

[9]	After refusing the postponement I granted the final order against the reservation noted therein that “It is recorded that Mr. Mtshabe can make no further submissions against this proposed draft being made an order of the court.” Indeed not only did the defendant make no submissions but she shunned my directive to conference before the quantum trial proceeded and also consciously elected to close her case without leading any evidence.

[10]	In my view this sealed her fate and the outcome, which was inevitable. Indeed the granting of the order inexorably followed on the basis of the parties’ compromise once the defendant closed her case in the trial.

[11]	Since the issues in the trial are issues in the pleadings and since the defendant conceded that she is bound by the compromise (which cannot have been made conditional upon the success of a public healthcare defence that was introduced much later) there can be no issues in the trial itself that merit an appeal.

[12]	As for the basis of my refusal of the postponement, I have asserted in my reasons the very worrisome background that influenced my discretion in this respect.  This informed the basis for the punitive costs award. It is quite notable that although the defendant seeks to dispute my conclusion that she should pay costs on a punitive scale, she does not challenge my findings underpinning that result. I believe there is serious merit in the slur voiced on behalf of the plaintiff against the defendant that she has demonstrated “serial bad faith” in her conduct of these proceedings deserving of the censure of this court. 

[13]	 Whilst there is in the ether a suggestion that the defendant’s fair trial rights have been compromised, this must be seen against the peculiar background that her hands were tied to start off with and not because I refused the postponement. As I indicated in my reasons for refusing the postponement, there is no magic in a public healthcare defence.  It must be properly pleaded and does not eradicate the compromise that was conceded on the pleadings.

[14]	In the result I am not satisfied that there are reasonable prospects of success upon the proposed appeal or that there is some compelling reason why it should be heard. 

[15]	I am further constrained to again show my displeasure in the defendant persisting with her pursuit of delaying finality for the plaintiff by a punitive award of costs against her.

[16]	In the result I issue the following order:

1.	the application for leave to appeal is dismissed;
2.	the defendant is to pay the costs of the application on an attorney and client scale, such costs to include the costs of two counsel, incorporating travelling expenses where applicable; and
3.	the defendant is to pay interest on costs at the legal rate calculated from date of allocatur to date of payment.

_________________
B   HARTLE 
JUDGE OF THE HIGH COURT

DATE OF HEARING OF 
APPLICATION FOR LEAVE 
TO APPEAL 			:	1 December 2023
DATE OF JUDGMENT 		: 	12 December 2023

Appearances: 
			
For the Plaintiff:	Mr. G Dugmore SC together with Mr. D Skoti, instructed by Sakhela Inc., East London (ref. Mr. Sakhela). 
For the Respondent:	Mr. N Mtshabe instructed by State Attorney, East London (ref. Mrs. Tongo).