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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  UM 51/2018

In the matter between:

BOSELE VIOLET NDLOVU obo                                     Applicant

OLEBOGWE MPHO NDLOVU

and

THE MEC, DEPARTMENT OF HEALTH

AND SOCIAL DEVELOPMENT, NORTH

WEST PROVINCIAL GOVERNMENT                            Respondent

DATE OF HEARING                                           :           04 APRIL 2018

DATE OF REASONS FOR JUDGMENT            :        10 APRIL 2018

COUNSEL FOR THE PLAINTIFF                         :           ADV. N. FERRIS

COUNSEL FOR THE DEFENDANT                   :           ADV. D. SMIT

 

REASONS FOR JUDGMENT

 

HENDRICKS J

Introduction

[1]        On the 04^th April 2018 at 19H00, the applicant approached this Court on an extremely urgent basis for the following relief as set out in the Notice of Motion:

“1.        That the provisions of the Uniforms Rules of Court pertaining to forms, time periods and service be abridged, and that the application be heard on an urgent basis in terms of Rule 6 (12) (a):

2.         The Respondent is ordered to, within twenty-four (24) hours of service of this order, pay the Applicant's Attorney the sum of R1 million (one million rand) by way of an interim payment.

3.         The Respondent shall deposit the aforesaid money into the Applicant's Attorneys Trust Account, namely

Name                         :           Enver Swartz Attorneys

Bank                           :           Standard Bank

Branch                        :           Fourways Crossing

Branch Code              :           0…

Account Number        :           3….

4.       That the Respondent pay the costs of this application in the event of opposition.”

[2]        Because the application was opposed, the matter was postponed until the 05^th April 2018 and 16H00 for respondent to file an answering affidavit(s) and the applicant to file a replying affidavit (s), if any. On the 05^th April 2018, after listening to the submissions made by both counsel, and after perusal of the affidavits and documents filed, I granted an order in the following terms:

“   IT IS ORDERED

1.     THAT:     The application is dismissed.

2.     THAT:     Each party to pay his/her own costs.

3.     THAT:     Reasons for the order / judgment will be  

                        handed down on Tuesday, 10^th April 2018.”

Here follows the reasons for the order / judgment granted.

[3]        The applicant, as natural guardian of her minor child, instituted an action for damages against the respondent based on the negligent conduct of the personnel at the Taung District Hospital during the delivery of the minor child, which caused the minor child to suffer from cerebral palsy. Liability was conceded by the respondent. On the 13^th February 2018, this Court ordered that the respondent should pay 100% of plaintiff’s (applicant in this application) proven damages. The quantum of the damages suffered is yet to be determined and the matter is still pending before this Court. The amount claimed for damages in the particulars of claim is one million six hundred and thirty five thousand rands (R1 635 000.00). The quantum investigations are still under way. As part of the quantum investigations an appointment was scheduled with an occupational therapist, Ms Anneke Greef on 04^th April 2018 (the date of the launching of this urgent application).

[4]        Ms Greef indicated in an e-mail addressed to Mr. Swartz, the attorney acting on behalf of the applicant, that the minor child has severe pressure sores on several areas of her body.  Her left hip is dislocated and she is extremely mal-nourished. This e-mail was sent at 08:16. For the sake of completeness, the e-mail is quoted and reads thus:

“Mother and Child Ndlovu is here for their assessment. The child has SEVERE pressure sores on several areas of her body. Her L hip is completely dislocated and she is EXTREMELY mal-nourished. Is there any way that we can have this child admitted to hospital, preferably Auckland Park Rehabilitation Facility?

During this admission she probably should have extremely urgent placement of a PEG - this can be done by Dr Selebe ... The Orthopaedic Surgeons can address her hip and her pressure sores can be addressed.

Can I urgent request (sic) that you secure interim payment from the defence thus enabling this very urgent need for immediate intervention to alleviate the extreme suffering of this child.

I await your urgent response in this regard."

A follow-up email was sent at 09:12 which reads as follows:

"It was indicated by Auckland Park Rehabilitation Facility that Child Ndlovu has to be admitted to Garden City Hospital due to the acute severe condition. Garden City requires a R40 000 deposit for admission. Will it be possible for you to make this payment to the Garden City Hospital? ......

Auckland Park Rehabilitation Facility indicated that they would transfer Amohelang once her severe condition is satisfactory to treating doctors".

The reference to "Amohelang" is a typing error. It should have read "Olebogwe Mpho".”

[5]        The attorney, Mr. Swartz, then launched this application on an extremely urgent basis and even deposed to the founding affidavit. Under the heading “Relief sought, the following is stated:

“RELIEF SOUGHT:

I pray that it may please this honourable court to dispense with the ordinary rules and to dispense with this matter as one of urgency. A copy of the application will in the interim be emailed to the Respondent's attorney of record, Mr Tshingwala of the State Attorney's Office.

I pray that it may please the Honourable Court to exercise its discretion and award the interim payment as prayed for in the Notice of Motion.

I respectfully submit that the amount requested by way of an interim payment will not exceed a reasonable proportion of the damages likely to be recovered at the trial of the matter.

I further respectfully submit that the Respondent is by the means to pay this interim amount.

Should the Honourable Court grant the interim payment order, the funds will be utilised for the immediate placement of Mpho at the Rehabilitation Centre suggested by Ms Greeff, and subsequent medical and related charges/costs.

The applicant phoned me, deeply distressed saying that she had been informed by Ms Greeff that, without the emergency medical intervention sought, Mpho is likely to die within 24 (twenty four) hours.

Despite the Applicant's misgivings about being treated at a Provincial Hospital, where the initial harm was suffered, I stressed to her the emergency of the situation and arranged for Mpho to be transported to the Leratong Hospital for emergency medical treatment.

Should it please the Honourable Court to grant the interim payment, arrangements will be made to have Mpho immediately transferred to the suggested Rehabilitation Facility.

The amount of RI million is a thumb-suck suggestion. At this stage, it is impossible to know for what period of time Mpho will be admitted, or what treatment will have to be administered.

Also attached as annexure "ES 3" is a copy of the interim invoice for admission to the paediatric ward only.

WHEREFORE I humbly pray that it may please this Honourable Court to grant the relief prayed for in the Notice of Motion prefixed hereto or to grant me such other relief as this Honourable Court seems meet.”

[6]        In opposition to the relief requested, it is stated by the respondent that the relief claimed is practically impossible and that the application lack urgency. It is practically impossible to grant the requisite relief because the respondent is a government department and is required to comply with the provisions of the State Liability Act, 20 of 1957, as amended by Act 11 of 2011 (“the Act”), which makes it practically impossible to effect payment within twenty-four (24) hours.

[7]        The method of affecting payment is prescribed by the Act. Section 3 (2) states:

“Section 3(2) - The State Attorney… appearing on behalf of the department concerned ... must, within seven days after a court order sounding in money against a department becomes final, in writing, inform the executive authority and accounting officer of that department and the relevant treasury of the final order.”

            Section 3 (3) (a) states:

“Section 3(3)(a) - A final court order against a department for the payment of money must be satisfied - (i) - within 30 days of the date of the order becoming final; or (ii) - within the time period agreed upon by the judgment creditor and the accounting officer of the department concerned.”

            Section 3 (5) states:

“Section 3(5) - The relevant treasury must, within 14 days of service of the final court order as provided for in subsection (4) ensure that, (a) - the judgment debt is satisfied; or (b) - acceptable arrangements have been made with the judgment creditor for the satisfaction of the judgment debt, should there be inadequate funds available in the vote of the department concerned.”

Having regard to the aforementioned prescripts of the Act, it is practically impossible to grant an order in the terms prayed.

[8]        The respondent in the answering affidavit stated the procedure of payment. It is stated:

“6.7      In normal practice, the legal department receives the order, where the VA2 form is then completed, then it is send to the Internal Control section, where certain 'checks and balances' are done, to ensure all the relevant documentation are attached. Thereafter, the now created 'purchase order' is sent to the office of the Chief Finance Officer where same is again checked and signed. Thereafter, if averting is in order, said purchase order is sent to the finance section to be loaded on the system and finally paid.

6.8       Currently, due 'to the strike, that has now been ongoing since 26 February 2018, and which could not be resolved yet, the employees in inter alia the finance section is not at work and not on duty. This, unfortunately causes a severe standstill, which means that the Respondent will not be able to comply with the relief the Applicant is seeking.”

[9]        To reiterate, the quantum is yet undetermined. No final court order is granted by this Court. The applicant, as plaintiff, must still proof her case insofar as the quantum is concerned. Therefore, is it practically impossible to grant an order in the terms prayed for.

[10]      There are other factors also to be considered. The minor child is currently admitted at Leratong Hospital, which is a public (State) hospital and are already receiving treatment. Although the extent of the treatment the child is receiving is unknown because it is not stated in the founding affidavit of the attorney, the fact remains that the child is already receiving medical treatment. The diagnoses of the child is inter alia for pressure sores. These pressure sores were also observed by Dr. Keshave, the pediatric neurologist, who examined the minor child on 09^th October 2017 and compiled a report on 12^th October 2017. These pressure sores are not a sudden ailment that occurred overnight. The extreme urgency for the resultant severe pressure sores are at least self-created, if it is indeed so urgent.

[11]      Similarly, the mal-nourished condition did not appear all-of-a-sudden in order to make this matter so extremely urgent. The fact that the minor child is currently admitted in Leratong Hospital and being medically taken care of, serves as proof thereof that there is no urgency established that the minor child should be treated at Garden City Hospital. Instead of dealing with this application in a piece-meal fashion by first striking it from the roll due to lack of urgency and later on when it is re-enrolled deal with the merits, I, in the exercise of my discretion, dismissed the application because there is no merit in this application. No case whatsoever was made out for the relief prayed.

[12]      Insofar as costs are concerned, I, in the exercise of my discretion, deemed it just and appropriate not to saddle the applicant with a costs order but rather to order that each party pays his/her own costs. It is quite apparent that the applicant is financially not in a good position in order to pay for private medical services of the minor child. To order her, in addition, to pay the costs of this application will bring some added financial hardship on her to bear.

            It is for the aforementioned reasons, inter alia, that I granted the order as contained in paragraph 2, supra.

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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