Sofuthe v Member of the Executive Council for the Department of Health Eastern Cape Province

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 04 July 2023
• Citation: 2023 JDR 2501 (ECM)
• Hearing Date: 04 July 2023
• Docket Number: 2728/2019
• Court: Eastern Cape Division

Notyesi AJ:

Introduction

[1]

This is a matter in which the plaintiff is claiming damages in both her personal and representative capacity as the mother and natural guardian of her minor child, Asemahle Sofuthe. The merits were decided in her favour on 8 October 2020. The trial

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is pending before Nhlangulela DJP concerning the appropriate award of the quantum of damages.

[2]

The applicant, relying upon the provisions of Uniform Rule 34A, asked for an order directing the respondent to effect an interim payment in the sum of R20 502 163, alternatively, R15 million. The application was launched on an urgent basis. The respondent opposed the application. On 27 April 2023, I heard the urgent application in the opposed court, and subsequent thereto, on 2 May 2023, I granted the following order with no reason–

“(1)

The applicant is hereby granted leave to proceed by way of urgency in accordance with the provisions of Rule 6(12)(a) and (b) and that this court hereby condones the non-compliance and departure from the Uniform rules of court;

(2)

The respondent is ordered to make an interim payment to the applicant, in her representative capacity, in the sum of R3,200,000-00 (three million two hundred thousand rands) within 30 (thirty) calendar days of this order;

(3)

The respondent shall pay interest at the prescribed legal rate should the amount fixed for interim payment remain unpaid within 30 (thirty) calendar days of this order;

(4)

The reserved costs of 4 April 2023 shall stand over for determination by the trial court when the quantum of damages is finally determined;

(5)

The parties are granted leave to file additional submissions, should they so wish, regarding the reserved costs of 4 April 2023;

(6)

The respondent is ordered to pay the costs of this application;

(7)

Any party desiring reasons for this order, may request the reasons through the office of the Registrar within 15 (fifteen) days from today.”

[3]

On 12 June 2023, I was advised by the registrar of this Court that the respondent’s attorneys filed a notice requesting reasons for the order. These are my reasons.

Parties

[4]

The applicant is the plaintiff in the pending trial, which concerns the determination of the quantum of damages to be awarded consequent to an order dated 8 October 2020 awarding 100% liability on the merits in favour of the applicant. The

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respondent is the defendant in the pending trial. The parties shall simply be referred to as ‘the applicant’ and ‘the respondent’.

Issues

[5]

The questions for determination were–

(a)

Urgency of the rule 34A application; and

(b)

If urgency is established, whether or not the applicant has met the requirements under rule 34A and the appropriate amount for an interim payment.

Background

[6]

The applicant instituted the present application on an urgent basis during March 2023. The application was initially set down for hearing on 4 April 2023. The main relief sought on behalf of the applicant was that the respondent should be ordered to pay to the applicant, in her personal and in her representative capacity (as the case may be), interim damages and/or agreed damages within 30 (thirty) calendar days of the date of the order in the following sums–

(a)

Plaintiff (personally) – R500 000

(b)

Plaintiff (representative capacity on behalf of her minor child, Asemahle) – R20 002 163

[7]

In the alternative to the relief set out above, the applicant asked that the respondent should be ordered to make an interim payment in the sum of R15 million or such lesser amount as the court deems meet and to effect the interim payment within 15 calendar days of the grant of the order, and an order that the defendant pay interest on the aforesaid interim payment at the legal rate, from a date 15 days after the date of the order to date of payment.

[8]

In support of the relief sought, the applicant alleged in the founding affidavit that the merits of the trial were concluded in her favour and in favour of her minor child and in that regard, the respondent had been ordered to pay 100% of the proved or agreed damages. The order on the merits was granted on 8 October 2020.

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[9]

The applicant complains, in the founding papers, that although the matter had been ongoing since 2019 and the order on merits was granted on 8 October 2020, the issue of quantum of damages, notwithstanding the resolution of the merits, remains unresolved. According to the applicant, when the question of quantum was set down for hearing on 20 October 2022, the respondent, shortly before the commencement of the proceedings, sought to amend the plea and introduce the ‘State Healthcare Defence’.

[10]

According to the applicant, given the dilatory nature of the intended amendment, which was only sought at the commencement of the hearing, she instructed her legal team to object to the application for amendment. The applicant averred that the grounds for opposing the proposed amendment included its lateness, and the inherent irreparable harm to her minor child and the interest of justice regarding the right to a speedy trial and quick resolution of disputes. Arising from that objection on the proposed amendment, the respondent brought an application for leave to amend, accompanied by another application for the separation of issues and items of damages which implicated, according to the respondent, the ‘State Healthcare Defence’. The applicant opposed both applications. Sequel thereto, the parties were directed to file heads of argument dealing with the issues raised in the two applications. Both the applicant and the respondent filed their heads of argument in respect of those two applications on 4 October 2021 and 13 October 2021, respectively.

[11]

The applicant alleged that prior to the unfolding of the events referred to above, at some stage, the parties filed comprehensive joint minutes from various experts. The joint minutes were incorporated by reference to these proceedings. According to the joint minutes by the experts, there is a high degree of unanimity and agreement in respect of the quantum of damages, especially for the minor child and in respect of what would constitute fair, reasonable and appropriate damages.

[12]

The applicant avers that, at the hearing on 20 October 2022, she was ready to proceed with the determination of quantum, and in that regard, the applicant had arranged for the availability of her quantum experts. However, the respondent, for the reason of the intended amendment, was not ready to proceed with the trial on the merits.

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[13]

Realising that the matter would not be proceeding, the legal representatives engaged in various discussions regarding those issues that the respondent had belatedly sought to introduce and as a result of those extensive communications, negotiations and discussions, agreements on a large portion of items of damages, were agreed to and those agreements between the parties form part of the reports and joint minutes. The aforesaid agreements regarding fair, reasonable and appropriate damages have been incorporated in these proceedings by reference, and therefore they form part of the record in this application.

[14]

According to the applicant, the aforesaid agreements and common cause matters were referred for calculation by the respondent and recorded by Manala Actuaries, who then prepared a report dated 10 September 2021 on the instructions of the respondent’s legal representatives. The applicant had alleged that the report, which is an exhibit before Court, reflected the agreed liability of the respondent in the following sums for the minor child–

(a) General damages	-	R22 000 000
(b) Loss of earnings	-	R1 175 947
(c) Future medicals	-	R16 626 216
Total claim	-	R20 002 163

The future medical costs were broken down as follows–

(c.1) Occupational therapy	-	R1 642 080
(c.2) Physiotherapy	-	R1 285 522
(c.3) Nursing	-	R6 782 732
(c.4) Orthoptist	-	R1 501 778
(c.5) Speech therapy	-	R 890 931
(c.6) Architecture (described as instructed amount)		R1 400 000
(c.7) Dietician	-	R 274 942
(c.8) Dentist	-	R 253 547
(c.9) Urology	-	R 221 184
(c.10) Educational psychology	-	R 345 632
(c.11) Orthopaedic Joint Minutes	-	R 322 775
(c.12) Vehicle (based on the trade-in value of R369 500 as instructed)	-	R1 705 094
Total	-	R16 626 216

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[15]

According to the applicant, the amount does not include the costs of protection of funds which is usually at 7.5% of the capital award.

[16]

The applicant further averred that except in respect of architecture expenses in respect of which the respondent had later sought disputation and other few items referred to in summary, the parties were generally in agreement about the damages. On a further report produced by Manana Actuaries, apparently on further instruction from the respondent’s legal representatives, there was a further quantification of damages, and that was embodied in a further report dated 12 September 2021.

[17]

According to the latter report, the total payment in respect of the minor child is reasonably estimated at R15 168 105 (excluding the costs of protection of funds), and the future medical costs summary breakdown, which is itemised and totals R11 792 158. The applicant further avers...