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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 14533/2001

DATE: 9/6/2005

not reportable

IN THE MATTER BETWEEN:

THE MINISTER OF HEALTH: GAUTENG Applicant/Second defendant

AND

LETITIA BRAND Respondent/plaintiff

(substituted by Amanda Christine Coetzee as

executrix of the estate of the plaintiff)

IN RE:

LETITIA BRAND Plaintiff

(substituted by Amanda Christine Coetzee as

executrix of the estate of the plaintiff)

AND

UNIVERSITY OF PRETORIA First defendant

THE MINISTER OF HEALTH, GAUTENG Second defendant

JUDGMENT

JOOSTE, AJ

[1] For purposes of convenience, the parties will be referred to as in the action. The plaintiff instituted a claim for damages inter alia against the second defendant for alleged damages sustained as a result of prescribed radiation therapy administered to the plaintiff at the Pretoria Academic hospital. The hospital falls under the management and control of the second defendant. The plaintiff alleges negligence by employees of the second defendant in breaching an agreement, alternatively a duty of care towards the plaintiff in administering radiation therapy for the treatment of plaintiff's cervical cancer. The alleged liability is denied by the second defendant.

[2] Summons was served on the second defendant on 1 June 2001 and its plea filed during August 2001. The matter has not yet gone to trial nor has a trial date been allocated. As early as April 2002 a request for further particulars for trial was served on behalf of the second defendant on the plaintiff. Although the matter had been set down for trial on previous occasions, it had always been timeously been removed from the roll but was eventually set down for trial to commence on 3 June 2004. Following the request for further particulars, the plaintiff was also requested to supply certain identified documentation, referred to in the discovery affidavit. The documentation was forwarded to second defendant's attorneys under cover of a letter by plaintiff's correspondent attorneys on 20 May 2002. The request for further particulars was only replied to on 24 May 2004.

[3] Amongst the documentation supplied by the plaintiff was a letter by a specialist surgeon, Mr D A Naidu dated 17 August 1998 wherein it was stated that the plaintiff had received radiation therapy for an early carcinoma of her cervix in 1997 and had developed a number of serious complications following this treatment. It is also stated that:

"She required to have a segment of her intestines removed shortly afterwards and was told by her surgeon at that time that her intestines were damaged from her radiation treatment."

(Annexure "MB3" to the supporting affidavit.)

[4] Following the information contained in the above document the second defendant on 11 May 2004 served a notice of amendment on the plaintiff of its intention to amend its plea by adding a special plea of prescription. By way of a notice in terms of rule 28(3), dated 24 May 2004, the plaintiff objected to the proposed amendment. The substantive application seeking the amendment is the one presently before court.

[5] It needs to be mentioned that the plaintiff died on 6 April 2004 and has in these proceedings been substituted by Amanda Christine Coetzee, her daughter, in her capacity as executrix of the plaintiff's estate.

[6] The plaintiff's objections in terms of rule 28(3) to the proposed amendment is based on the following grounds:

"(1) The plea could and should have been revised at a much earlier stage – there is no reason why this was not done at the outset so that the matter of prescription could not be dealt with and finalised as a separate issue in as early as 2002 (the plea being dated 10 August 2001);

(2) The plaintiff is prejudiced in that:

2.1 the plaintiff's intestate has incurred liability for legal costs since 2002 which she could ill afford since she had been rendered incapable of working as a result of the negligent treatment by the second defendant's employees;

2.2 In particular, the plaintiff's intestate has died on 6 April 2004 as a result of the negligent treatment she received from the second defendant's employees.

3. The plea raises no triable issue, especially as plaintiff's intestate was never advised of the increased risk of harmful consequences of the radiation levels for her treatment in relation to what her condition actually required for successful treatment."

(Annexure "MB2" to the founding affidavit.)

[7] It is well-established that a litigant who seeks to add new grounds of relief at a late stage does not claim such an amendment as a matter of right but rather seeks an indulgence. Well-established requirements have also crystallised which an applicant may have to meet for an amendment to be granted at a late stage. These are:

(i) an acceptable explanation has to be provided as to why the amendment is only brought at such a late stage;

(ii) there must be a triable issue;

(iii) there must be no significant prejudice to the other party which cannot be cured by an order for costs.

Erasmus Superior Court Practice, B1 182 to 183.

[8] As far as second defendant's explanation for the delay is concerned, the following must be noted:

(i) The plaintiff's particulars of claim were sufficiently detailed from the outset to alert the second defendant to a possible defence of prescription. The treatment complained of was from June 1997 to December 1997, whilst the summons is dated May 2001. At first glance thus a period of three and a half years in itself to alert the defendant to the possibility of a prescription defence.

(ii) The initial first defendant (University of Pretoria) pleaded prescription on 31 July 2001. 0n 15 August 2001 the plaintiff replicates to first defendant denying that prescription commenced June to December 1997, relying on section 12(1) and (3) of Act 68 of 1969. The second defendant's plea was served only on 10 August 2001.

(iii) No proper explanation is advanced why the second defendant was not on the above facts alerted to the plea of prescription before it received the documents and the aforementioned letter by Dr Naidu.

(iv) The letter by Dr Naidu which allegedly caused the second defendant to raise prescription, was a document which it received on or shortly after 20 May 2002, that is two years prior to it being eventually raised. At least one would have expected the prescription to be raised in June 2002 which was when the trial had been set down at that stage. There is also no explanation for this failure, although the contents of the letter was to the knowledge of the second defendant's counsel and attorney.

[9] As far as the question of a triable issue is concerned, it is incumbent on the defendant to place sufficient evidence before court to convince it that it has a triable issue. The applicant must put evidence before court to indicate at the very least significant prospects of success in respect of the issue raised. In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander 2002 2 SA 447 at 463A it was stated thus:

"(a) 'n Geskilpunt wat, indien dit aan die hand van getuienis wat die applikant in sy aansoek in die vooruitsig stel, bewys word, lewensvatbaar of relevant sou wees; of

(b) 'n Geskilpunt wat op die waarskynlikhede deur die getuienis wat aldus in die vooruitsig gestel word, bewys sou wees."

The requirement does not need to simply raise an issue that would, if proven, constitute a sound defence. The viability of the issue does not relate to its effect if proven, but to the prospects of proving it which calls for the evidence envisaged in support of the issue to be placed before the court in the application for the amendment.

[10] In the present case there is really none of this. There is only, as indicated above, hearsay evidence that the plaintiff, in January 1998, knew that the radiation had caused intestinal complications. There is nothing to suggest that she should have realised that this was caused by improper treatment as supposed to an unavoidable complication due to sensitivity. The objection makes it perfectly clear that the cardinal evidential issue is – when did or should the deceased have known she was over-radiated? The onus is on the second defendant to prove the commencement of prescription including the date the creditor became (or reasonably should have become) aware of the identity and the facts from which it arises – that would include knowledge of over-radiation and of damage being caused as a result thereof [sections 12(1) and 12(3) of the Prescription Act 68 of 1969]. Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A); Gericke v Sack 1978 1 SA 821 (A).

It is of no value in this regard to point to the date of treatment as the date of commencement. It is the quality of treatment which is the issue and that was not known on the day of the treatment.

[11] As far as prejudice to the plaintiff is concerned, the following:

(i) The prescription issue would really turn on section 12(3) of the Prescription Act, namely when did the deceased know about the over-radiation or when should he have reasonably known about it? Especially in respect of the deeming proviso of section 12(3) the deceased's evidence would obviously have been essential to meet the second defendant's case. She was indeed the one witness who could readily refute every imputation of early knowledge irrespective of context from which it is derived.

(ii) The deceased's evidence is lost to the plaintiff, which could have been avoided if the plea of prescription was timeously raised and determined. It is the second defendant's conduct both initially and by its delay which caused the loss of vital evidence in respect of the issue to be introduced by the amendment. This is clearly a case, to my mind, of the type of prejudice that cannot be cured by an order for costs and relates to prejudice regarding the subject-matter of the litigation.

[12] In my view the second defendant has therefore not given a satisfactory explanation of the delay in raising the amendment, has not raised a real triable issue and has failed to discharge the onus that the plaintiff will not suffer such prejudice that cannot be compensated by a costs order. It follows that the application must fail.

[13] As far as costs are concerned, I am satisfied that the matter is of such importance to the plaintiff that the employment of two counsel was warranted.

[14] The application is dismissed with costs including the costs of two counsel.

F J JOOSTE

ACTING JUDGE OF THE HIGH COURT

14533-2001

FOR THE PLAINTIFF: ADV K J KEMP SC AND C A NEL

INSTRUCTED BY: MESSRS ROSS & JACOBSZ, PTA

FOR THE DEFENDANT: ADV S JOUBERT

INSTRUCTED BY: STATE ATTORNEY, PTA

HEARD ON: 23/2/2005

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