---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 23600/2013

DATE OF HEARING: 2 NOVEMBER 2015

DATE OF JUDGMENT: 09 NOVEMBER 2015

In the matter between:

MEC FOR DEPARTMENT OF HEALTH: MPUMALANGA

PROVINCE                                                                                                                 Applicant

and

THULANE MISHACK NDLOVU                                                                            Respondent

J U D G M E N T

OLIVIER, AJ

INTRODUCTION AND BRIEF SUMMARY OF ISSUES

1. This is an application in which the applicant, the MEC for the Department of Health, Mpumalanga seeks an order for the upliftment of a notice of bar, coupled with leave to file its plea to the respondent's particulars of claim.

2. The main action is a claim for damages against the MEC for the alleged loss of a medical file from a hospital under the administration of the applicant. The respondent claims that had the file not been lost, he would have been able to institute action against the RAF.

3. Summons and particulars of claim were served on the applicant on 24 April 2013. The notice of intention to defend was filed on 11 July 2013. Notice of bar, dated 15 August 2013, was served on 19 August 2013.

4. Notice of set down, for 6 March 2015, was served on the applicant on 30 January 2015. On 26 February 2015 the applicant wrote a letter to the respondent requesting upliftment of the bar offering wasted costs, but this was refused. On the eve of the date of set down, the respondent informed the applicant that he would not be proceeding to default judgment.

5. The applicant then initiated this application. Notice of intention to defend was served on the applicant on 25 March 2015.

THE LAW AND CONSIDERATION OF FACTS

6. The application is  brought under Rule 27 of the Uniform Rules of Court, which requires the applicant to show 'good cause' why the bar should be removed. This is a critical averment and if not shown will result in the dismissal of the application. The affidavit must set out: [1]

•      A satisfactory explanation of the delay. With reference to old and recent authorities, Erasmus explains that 'the defendant 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.'  A general statement is insufficient. The explanation must be specific and particular.

•      That the application is bona fide, and not intended to frustrate or delay the proceedings.

•      That there has not been a reckless or intentional disregard of the rules.

•      That the applicant has a bona fide defence that is not patently unfounded and is based on the facts that, if proved, would constitute a  defence. These facts must be set out clearly. A broad statement that the applicant has a good case and a proper defence fails to meet this requirement.

•      That granting the order will not prejudice the  other party in a way that cannot be compensated for by a suitable cost order.

7. The court has a wide discretion, and a technical approach should not be adopted.[2] The court's discretion should be exercised after a proper consideration of all the relevant circumstances.

THE EXPLANATION BY THE APPLICANT'S ATTORNEY

8. The applicant argued that uplifting the bar would not prejudice the respondent, and was in the interest of justice. It was further averred that the applicant would suffer irreparable harm and unfair prejudice should the court refuse to lift the bar and not allow the applicant to file its plea, and that in the result the applicant's constitutional rights to a fair hearing and access to the courts would be denied.

9. The senior state attorney's founding affidavit portrays an office that, regrettably, is functioning less than optimally. However, she was frank in explaining the reasons for the delay. By her own admission the office of the state attorney, representing the MEC, 'had taken considerable time attempting to secure counsel' -- current counsel was only appointed in November 2013, some 4 months after filing the notice of intention to defend - and when finally secured, counsel 'protracted and delayed in giving the opinion'. Delays in dealing with the matter were due to a 'hectic schedule and shortage of staff on huge volumes of files to be attended' [sic]; and when the opinion was sent for consideration by the applicant, there was no immediate response due to its undergoing 'various hierarchy to determine its stance  on the matter' [sic]. There had also been a breakdown of communication between the state attorney and the MEC due to a change in the personnel of the department's  legal division.

10. The respondent submitted that the applicant's attorney failed to give a reasonable and acceptable explanation, neither is she acting bona fide and with reference to the plea there is no bona fide defence which prima facie has some prospect of success.

11. Although the State Attorney can be criticized for the office's lack of diligence, I do not consider it to amount to reckless or intentional disregard of the rules. I am therefore inclined to accept her explanation. If I accept that she is bona fide in seeking the indulgence, then I must accept that her explanation is reasonable and acceptable under the circumstances.

12. What I now need to decide is whether the applicant has a bona fide defence which prima facie has some prospect of success.

13. Details of the main action are sketchy. The applicant claimed that it had 'reasonable and good' prospects of success in the main action. Part of its defence seems to be that the respondent could have secured other medical reports in support of his claim against the RAF. Of some relevance, is that since the set down of this matter, the medical records were found and handed over to the respondent. This does not necessarily mean, however, that the applicant would be able to defend the claim successfully, but it does strengthen  its defence. In my opinion, the applicant has a bona fide defence which prima facie has some prospect of success.

14. Considering the above, as well as the interests of justice, I am of the opinion that the bar should be uplifted.

COSTS

15. The applicant tendered the costs on the unopposed basis for the application for condonation and for the upliftment of the bar. However, since the application was opposed, the applicant submitted that I should order the respondent to pay the costs of suit because the opposition was unreasonable.

16. The following extract from a recent unreported judgment in this division is relevant, and I quote it in full:[3]

'In Erasmus Superior Court Practice at E12-6A-7 and the cases cited therein, it is stated that the general rule is that where a successful application is made for the grant of an indulgence the costs do not follow the event. Furthermore, in such cases it is the applicant who should pay for all the costs as can reasonably be said to be wasted because of the application. The justification for an order that an applicant is to pay the respondent's costs of opposition is that the respondent ought not to be put in a position where he opposes the granting of an indulgence at his peril, in the sense that, if the amendment is granted, he cannot recover his costs of opposition, or may even have to pay such costs as are occasioned by his opposition, despite the fact that such opposition is reasonable in the circumstances.'

17. It is my view that the opposition was not unreasonable. Consequently the applicant ought to pay the costs of the opposition of the application.

ORDER

18. In the result I make the following order:

18.1    The application for condonation for the late filing of the plea is granted and the notice of bar is uplifted.

18.2    The applicant is afforded a period of 10 days from the date of this order to file its plea.

18.3   The applicant is ordered to pay the costs of the opposition of the application.

________________________________

OLIVIER, AJ

JUDGE OF THE HIGH COURT

---