Sikota v Member of the Executive Council for the Department of Health Easter Cape

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Rugunanan J
• Judgment Date: 11 May 2023
• Docket Number: CA 29/2022
• Hearing Date: 13 February 2023
• Court: Eastern Cape Division

Rugunanan J:

[1]

In an action instituted in the high court, Mthatha, the appellant (plaintiff) claimed delictual damages on behalf of her minor child [S] against the

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respondent, the Member of the Executive Council for Health, Eastern Cape Province (the defendant). For convenience the parties' trial designations will be retained in this judgment.

[2]

The claim arose from the child having suffered a brain injury by an occurrence known as an intrapartum hypoxic event during the plaintiff's labour and delivery on 25 – 26 December 2012 in the St Barnabas Hospital (the hospital).

[3]

The court a quo (Da Silva AJ), by agreement between the parties, was called upon to decide only the question of liability on the merits and in a judgment delivered on 27 August 2020, dismissed the claim.

[4]

The merits involved a determination of whether the plaintiff succeeded in establishing on a balance of probabilities causal negligence on the part of the clinicians and/or the hospital staff of the defendant which caused the injury to S.

[5]

The appeal is with the leave of the learned judge.

[6]

The effective basis upon which the trial court found against the plaintiff is evinced in its judgment by findings: (i) relevant to the failure to treat and monitor the plaintiff and her unborn child with the required and applicable standards, the delay between the diagnosis of foetal distress and the performance of a caesarean procedure on the plaintiff being attributed to the lack of resource availability at the hospital; and (ii) the occurrence of an unforeseeable sentinel event consequent to the plaintiff's negative reaction to spinal anaesthesia while undergoing the procedure.

[7]

The matters aforementioned were essentially supported by the evidence of Dr Brannigan, an expert who testified for the defendant, the plaintiff contending that same were not heralded in the defendant's plea, and presented a departure

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from joint minutes between obstetricians and as between paediatricians, Dr Brannigan being neither and thus not in a position to contradict from an expert point of view the effect of the common cause facts set out in the joint minutes. The plaintiff contended moreover that the trial court did not properly direct itself to the significance of the joint minutes.

The procedural context for the determination of the appeal:

[8]

Common cause at the hearing of the appeal was that its prosecution did not comply with the prescripts of Uniform Rule 49, this occasioning an application by the defendant declaring the appeal to have lapsed in terms of rule 49(7)(d). In opposition thereto the plaintiff, in answer, sought condonation and reinstatement.

[9]

It is not intended to sprawl the length of this judgment by extrapolating every minute detail of non-compliance, suffice to state that the key provisions of rule 49 which are undeniably in breach are sub-rules (6)(a); (7)(a); (9); (13)(a) and (b); and (15). Among the fundamental complaints raised by the defendant are: the absence of a properly compiled record having been served and filed; the failure by the plaintiff to have filed security; and her failure to have taken any steps to seek condonation despite a considerable lapse of time.

[10]

In brief, the defendant's stance asserted prejudice compounded by the flagrant non-observance of the prescripts of the rule, the lack of diligence and attention to the matter, and the delay in seeking condonation – all of which not being adequately explained in the plaintiff's answering papers, in particular the egregious default being incapable of the court's indulgence.

[11]

The answering affidavit by the plaintiff's attorney Mr Thulisile Mjulelwa does little to explain the delays in the prosecution of the appeal and the failure to have complied with the abovementioned sub-rules. Where he relies on

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information supplied to him by other persons, no confirmatory affidavits have been filed.

[12]

The key explanation put forward is that the matter was channelled through a case management process. The plaintiff was granted leave to appeal on 12 November 2021 and was obliged to file the appeal record by 15 February 2022. The case management procedure took place during May 2022 long after the obligations placed on the plaintiff by rule 49 had lapsed.

[13]

The fallacy in the approach by Mr Mjulelwa is that case management procedures can only apply to appeals once there has been compliance with rule 49. Recourse to case management does not have the effect of reviving an appeal that has lapsed. Asserting (albeit perfunctorily) that prospects of success in the appeal are strong and that condonation will not prejudice the defendant, does not lay a sufficiently candid basis for enabling this court to understand how the default came about. The defendant's position is that the plaintiff was at all times required to demonstrate good cause and where she has failed to do so, she cannot escape the consequences of her attorney's lack of diligence or the insufficiency of the explanation tendered. [1]

[14]

The plaintiff adopts the misguided approach that the defendant had to remind her of the stages of non-compliance complained of. In heads of argument she holds the view that whatever deficiencies existed could readily have been rectified upon notice to cure by the defendant. It was at all times the responsibility of the plaintiff to have complied with the prescripts of the rule and to have prepared a record that complied therewith. To contend otherwise is, in the circumstances of the matter, disingenuous.

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[15]

The events in the prosecution of the appeal reveal a disquieting history indicative of a reckless disregard for the rules of court. By way of example, features of this history include:

15.1

A failure to have furnished the defendant with two hard copies of the record;

15.2

An explanation that the defendant was in possession of all documents forming part of the trial record during the trial and that it was considered necessary only to serve the indices of the appeal and leave it to the defendant to compile its own record and attend to pagination in accordance with the indices (Mention is made of the fact that the indices were filed on 10 February 2022. In an exercise inherently prejudicial the defendant incurred substantial costs in trying to match the documents it had with those in the indices. I would add that the indices are wholly inadequate for failure to have identified portions of the transcript applicable to the evidence of the witnesses – a failing that significantly contributed to much frustration and inconvenience in having to navigate through a record with handwritten pagination that was at times dishevelled and illegible, and the record itself comprising of four lever-arch volumes with pages that did not withstand regular use at times becoming plucked from the arch mechanism (even with delicate handling);

15.3

A failure to have taken steps in accordance with rule 49(7) which provides that if the necessary copies of the record are not ready within the period stipulated in rule 49(6)(a), the registrar may accept an application for the date of the hearing of the appeal without the copies of the record provided the application is accompanied by a written agreement between the parties that the record may be filed late or, failing such agreement, the plaintiff delivers an application together with an affidavit in which the reasons for such omission are set out;

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15.4

The inexplicable failure to furnish security in the appeal, despite the unchallenged and clear obligation to do so; and

15.5

A preference for an unusual procedure of seeking condonation and reinstatement in the answering affidavit without having filed a substantive application for such relief.

[16]

In raising issues pertaining to the plaintiff's non-compliance with the prescripts of rule 49, the defendant, in my view, was not engaging in an exercise of pedantry for tactical reasons to avoid the appeal being determined on its merits. The plaintiff's insouciant approach justified the stance adopted by the defendant particularly as regards the furnishing of security. The criticism directed at the defendant for not engaging with the plaintiff on this issue is unwarranted. The fact remains that there was no waiver of the right to security, and the plaintiff did not make application to be released from the obligation to furnish security – nor if I might add did the plaintiff seriously dispute the obligation ordained by the relevant rule of court.

[17]

With all indications pointing to the conduct of the plaintiff's attorney in failing to prosecute the appeal, counsel for the plaintiff properly conceded culpability of the attorney but urged that the importance of the matter and significantly prospects of success would have a moderating effect. [2]

[18]

There is indubitable merit in the stance adopted by the defendant that an acceptance of the opposition put up by the plaintiff would grant carte blanche to litigants to ignore the provisions of rule 49. My sense therefore is that the order at the conclusion of this judgment would signal a deterrent against future infractions of the appeal procedure by litigants or their legal representatives.

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[19]

Reluctant to order an outright striking from the roll we deemed it expedient in our discretion to hear argument on the merits of the appeal – the parties although differing in their views on prospects of success acknowledged that this was an eminently sensible and pragmatic approach for dealing with the matter.

The pleadings and conduct of the trial:

[20]

In the particulars of claim the plaintiff asserts:

'15

As a...