IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE (SOUTH EASTERN CAPE LOCAL DIVISION) Case No.: 3207/06 Date delivered: 1.4.08 In the matter between: ERROL CLIVE VAN VUUREN First Applicant PATRICIA VAN VUUREN Second Applicant and MEC, DEPARTMENT OF HEALTH, EASTERN CAPE First Respondent THE MEDICAL SUPERINTENDENT, DORA NGINZA HOSPITAL Second Respondent JUDGMENT JANSEN J: The applicants wish to institute action against the respondents for damages suffered when their baby died during confinement on 9 August 2005 at the Dora Nginza Hospital, Port Elizabeth. The applicants allege that their baby died as a result of the negligence of medical practitioners and/or medical personnel in the employ of the first respondent. A litigant who wishes to institute action against an organ of the State or its employees is required to give notice in writing of such intention. Section 3(1) and (2) of the Institution of Legal Proceedings against Certain Organs of State Act No. 40 of 2002 provides that no legal proceedings for the recovery of a
2 debt may be instituted against an organ of State, such as the first respondent, unless notice in writing of such intention has been given within six months from the date on which the debt became due. The notice must briefly set out the facts giving rise to the debt and such particulars thereof as are within the knowledge of the litigant. The object of these provisions is to ensure that the organ of State be informed within reasonable time of an intention to hold it liable for damages, sustained as a result of default or negligence of any of its officers, to enable it to investigate the circumstances and to be placed in a position to determine whether it should settle the claim or prepare its case to resist it. It is common cause that the applicants only notified the respondents of their intended action on 10 August 2006, approximately one year after the delivery and death of their baby, which was some six months late in terms of the Act. A Court may, however, grant an application for condonation for the failure to serve the notice as aforesaid if the Court is satisfied that the debt has not been extinguished by prescription, that good cause exists for the failure by the litigant, and that the organ of State was not unreasonably prejudiced by the failure to give notice within the prescribed period. The applicants launched the instant main application for condonation for noncompliance with the Act on 4 October 2006. The respondents filed a notice of opposition to the application and filed their opposing affidavit timeously on 22
3 November 2006. Only on 12 November 2007, grossly out of time, the applicants filed extensive replying affidavits. On 3 March 2008 the applicants launched an interlocutory application for condonation for the late filing of their replying affidavits. On 5 March 2008 the respondents filed a notice of opposition to the interlocutory application. In reaction to allegations made in replying affidavits the respondents attorney served a Rule 35(12) Notice on the applicants attorneys on 11 March 2008 to produce the extensive hospital records and other documentation referred to in the replying affidavits. On 19 March 2008 the applicants attorneys responded to the aforesaid Rule 35(12) Notice by serving on the respondents attorneys the original hospital records including clinical and nursing notes. In a subsequent affidavit the second applicant now admits that she has always been in possession of the original hospital file. She took it when she was discharged. She had copies made of the whole content of approximately fifty five pages of the hospital file and handed it to her attorney whereupon the Notice in terms of section 3(1) and (2) of the Act was given to the respondents. The fact that applicants had been in possession of the original hospital records was concealed from the respondents and it only came to light in response to the Rule 35(12) Notice. The Notice in terms of section 3(1)(a) of Act No. 40 of 2002 dated 10 August 2006 reads as follows: Ons instruksies behels dat Mev. Van Vuuren op ongeveer 8 Augustus 2005 opgeneem en gehospitaliseer is te die Dora Nginza
4 Hospitaal vir die bevalling en geboorte van hulle baba. Die baba is inderdaad op 9 Augustus 2005 te die Dora Nginza Hospitaal dood gebore, alternatiewelik het die baba kort na geboorte gesterf. Ons instruksies is voorts dat die afsterwe van ons kliënte se baba in geheel te wyte was aan die nalatige optrede van die mediese praktisyn(s) en/of mediese personeel wie Mev. Van vuuren sowel as die baba behandel het tydens die bevallingsproses en/of tydens die daaropvolgende nasorg. (sic) Paragraphs 4 and 5 of the second applicant s founding affidavit reads as follows: Ek is op 8 Augustus 2005 opgeneem en gehospitaliseer te die Dora Nginza Hospitaal vir die bevalling en gebore van my en die Eerste Applikant se baba ( hierin verder na verwys as die baba ). Die baba is inderdaad op 9 Augustus 2005 te die Dora Nginza Hospitaal dood gebore, alternatiewelik het die baba kort na geboorte gesterf. Ek is respekvol die mening toegedaan dat die afsterwe van die baba in geheel te wyte was aan die nalatige optrede van die mediese praktisyn(s) en/of mediese personeel wie my sowel as die baba behandel het tydens die bevallingsproses en/of tydens die daaropvolgende nasorg. (sic) The second respondent, Dr Aydin Vehbi, filed an opposing affidavit. He states that he has searched high and low in an effort to trace the relevant hospital file dealing with the admission of the second applicant to the hospital on 8 August 2008 but cannot trace such file. He specifically states that he did not know if the file is in possession of the applicants or their attorneys. The only relevant records that he was able to trace were the following: 1. A computer print out relating to attendances of the second applicant
5 at the hospital s Ante Natal Clinic op 20 April 2005, her earlier admission to the hospital on 28 June 2005 and her final admission to the hospital for the birth of her baby on 8 August 2005. 2. Cryptic notes regarding the second applicant s attendance at the Ante Natal Clinic on 20 April 2005. 3. The hospital records relating to the admission of the second applicant to the hospital on 28 June 2005 with abdominal pain. 4. The admissions register for the night of 8/9 August 2005. 5. The theatre register for the night of 8/9 August 2005. Dr Jonray Kevin Leeching was involved with the Caesarean section performed on the second applicant. He had some independent recollection of her admission to the hospital and her subsequent stillborn baby. He can remember that it was noticed when the Caesarean section was performed that the uterus had ruptured and that the foetus was dead. The foetus was nevertheless immediately handed over to the Paediatric Department for attempts at resuscitation. More than a year later, in their replying affidavits, the applicants now say that the baby had not died during delivery or during post natal treatment. The second applicant states that it is correct that her uterus ruptured shortly prior to the performance of the Caesarean section. She further admits that her baby had died prior to the Caesarean section. I have referred above to the fact that the applicants only notified the
6 respondents of their intended action some six months late. I also referred to the fact that the applicants should have filed their replying affidavit within ten court days of the filing of the respondents opposing affidavits on 22 November 2006. The applicants could and should have asked the respondents for a reasonable extension of time within which to file their replying affidavits. It is the respondents case that such a request would have been favourably considered by the respondents attorneys. No request for an extension of time was made by the applicants. The only other alternative open to the applicants was to apply to this court for an extension of time within which to file their replying affidavits in terms of Uniform Rule 27(1). Rule 27(1) requires good cause to be shown. If good cause is shown the Court has a wide discretion which must in principle be exercised with regard also to the merits of the matter seen as a whole. It is also required that an applicant should file an affidavit satisfactorily explaining the delay which led to the non compliance with the relevant rule. When there has been a long delay the defaulting party is required to satisfy the Court that the relief sought should be granted, especially where, as in the instant case, the applicant is dominus litis. The applicant for any such relief 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 (Silver v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 353). The applicants set out in the founding affidavits for condonation the reasons for delay as follows; firstly that the offices of the applicant s attorneys were closed during the
7 period 15 December 2006 to 10 January 2007. No mention was made of the period between 22 November 2006, when the opposing affidavits had been filed, and 15 December 2006. The applicant further states that during January and February 2007 the contents of the founding affidavit and the various opposing affidavits were perused as the opposed affidavit contained various new issues of an involved medico legal nature. This is absolute nonsense. There was no reason to study and peruse the applicants founding affidavits. That was already signed by the end of September 2006. By September 2006 the second applicant had already been in possession of the hospital records for more than a year with copies thereof in possession of her attorney for more than two months. The respondents opposing affidavits, which were filed timeously, to a large extent was based on speculation and inferences with only one medical officer remembering a ruptured uterus. Only on 22 February 2007 was a letter directed on behalf of the applicants to an expert, Dr du Toit, who, after a telephonic consultation on 26 February 2005, submitted his report four days later on 1 March 2007. That was made available to counsel only on 13 March 2007. A consultation between Dr du Toit and counsel was only scheduled for 16 April 2007. According to the applicants her legal representatives had difficulty in preparing replying affidavits due to the fact that the respondents in their opposing affidavits addressed issues that were both new and of an involved medico legal nature. I have already dealt with that. Another consultation was arranged only for 11 July 2007. Counsel prepared a draft replying affidavit which was e mailed to
8 the applicants attorneys who supplemented it on 16 July 2007 and returned it to counsel. A misunderstanding then arose between the attorney and counsel with the one thinking that the other was settling the final draft of the affidavit. That misunderstanding was resolved somewhere during October 2007 whereupon the replying affidavit was settled by counsel during the first week of November 2007 but only filed some time after 12 November. That is the day on which the affidavits were commissioned. On the facts set out by the applicants they have failed to show good cause for the inordinate delay of approximately one year before filing their replying affidavits. In her founding affidavit to the interlocutory application the second applicant states that it had throughout been her intention to reply to the opposing affidavits filed by the respondents. If that is the case the question should be asked why nothing had been done from 22 November 2006 when the respondents opposing affidavits were filed until 15 December when the applicants attorneys offices were closed. The replying affidavits should in terms of the rule have been filed by then. It was submitted by the second applicant that she has good prospects of succeeding with her intended civil action against the respondents. In this regard she referred to the submissions made in her founding affidavit as well as her replying affidavits. I agree with the submission on behalf of the respondents that the applicants should have made the minimum of averments to demonstrate that they have an actionable cause against the respondents. In her founding affidavit she stated that she formed an opinion that the death of her baby was caused by the negligent actions of the second respondents personnel tydens die bevallingsproses en/of tydens die daaropvolgende nasorg. In her replying affidavit the second applicant now says that the baby
9 had not died during delivery or during post natal treatment, but in fact at some time prior to delivery as a result of an intra uteral rupture. I agree with the submission on behalf of the respondents that the mere opinion of the second applicant as set out in her founding affidavit and the complete lack of detail as to the applicants alleged cause of action do not pass muster for purposes of an application for condonation in terms of the Act. The second applicant furthermore alleges that the negligence of the relevant medical personnel is evident from the answering affidavits. That is simply not true. The second applicant further falsely contended that she had never been informed that she had to be booked for an elective Caesarean section and that she was never informed that she needed to be monitored regularly in between. It is, however, clear from the ante natal records that she was told exactly that. It is further clear that the applicants were not honest and open towards the Court. In spite of the fact that the respondents were alleging prejudice on account of the fact that the hospital records could not be traced, the applicants, whilst in possession of the original records, kept completely quiet about that fact and failed to return the hospital records to the respondents. It was only after the Rule 35(12) Notice had been served on the applicants that they were compelled to return the records. To make things worse, in her replying affidavit the second applicant castigated the respondents for losing her hospital record, well knowing that she had taken it.
10 Both applications on behalf of the applicants were applications for condonation. A full and frank disclosure should be made of all relevant facts. A satisfactory and a full explanation should be given as to why the applicants have not complied with the Act and with the Rules. Good cause should be shown and the absence of unreasonable prejudice to the respondents should be demonstrated. In my view the applicants failed to do that. The statement by the second applicant that she did not know that she could claim from the respondents for the death of the foetus should be approached with a lot of suspicion. Why did she take the hospital records and, in particular, why did she not reveal the fact that she had all along been in possession of the originals? The applicants have made themselves guilty of unconscionable conduct. In the process they compounded prejudice suffered by the respondents. Furthermore, the applicants have not demonstrated any causal connection between the death of the foetus prior to birth and any damage allegedly suffered by them. It was submitted on behalf of the respondents that I should make a special costs order against the applicants. I seriously considered that. Such a costs order can be justified, but from the papers placed before me it is clear to me that the respondents would not get any benefit from that. The applicants are simply not in a position to pay a punitive costs order. In the result, the applicants application in terms of section 3(4) of Act No. 40
11 of 2002 is dismissed with costs. J C H JANSEN JUDGE OF THE HIGH COURT