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Lakay v Premier of the Western Cape Provincial Government NO (1269/2006) [2009] ZAWCHC 185 (27 November 2009)

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(ii) such particulars of such debt as are within the knowledge of the creditor.

(3) For purposes of subsection (2) (a)-

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b) a debt referred to in section 2 (2) (a), must be regarded as having become due on the fixed date.

(4) (a) If an organ of state relies on a creditor's failure to serve a notice in terms of subsection (2) (a), the creditor may apply to a court having jurisdiction for condonation of such failure.

(b) The court may grant an application referred to in paragraph (a) if it is satisfied that-

(i) the debt has not been extinguished by
prescription;

(ii) good cause exists for the failure by the
creditor; and

(iii) the organ of state was not unreasonably
prejudiced by the failure.

(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate."

[7] The 2002 Act was preceded by the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 ("the 1970 Act"). Section 2 of the 1970 Act provided as follows:

"(1) Subject to the provisions of this Act, no legal proceedings in respect of any debt shall be instituted against an administration, local authority or officer (hereinafter referred to as the debtor) -

(a) unless the creditor has within 90 days as from the day on which the debt became due, served a written notice of such proceedings, in which are set out the facts from which the debt arose and such particulars of such debt as are within the knowledge of the creditor, on the debtor by delivering it to him or by sending it to him by registered post;

(b) before the expiration of a period of 90 days as from the day on which the notice contemplated in para (a) was served on the debtor, unless the debtor has in writing denied liability for the debt before the expiration of such period;

(c) after the lapse of a period of 24 months from the day on which the debt became due.

(2) For the purposes of ss (1) -

(a) legal proceedings shall be deemed to be instituted by service on the debtor of any process (including a notice of any application to court and any other document by which legal proceedings are commenced) in which the creditor claims payment of the debt;

(b) a debt shall, if the debtor intentionally prevents the creditor from coming to know of the existence thereof, not be regarded as due before the day on which the creditor comes to know of the existence thereof;

(c) a debt shall not be regarded as due before the first day on which the creditor has knowledge of the identity of the debtor and the facts from which the debt arose, or the first day on which the creditor can acquire such knowledge by the exercise of reasonable care, whichever is the earlier day;

(d) a period prescribed in para (a) or (c) of that subsection shall, in the case of a debt of which the due date is postponed by agreement between the creditor and the debtor, be calculated afresh as from the day on which the debt again becomes due."

[8] In Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC) the Constitutional Court declared, with retrospective effect, that section 2(1)(a) of the 1970 Act was unconstitutional and invalid. The question whether notice was required in this case, alternatively the condonation of applicant's late notice must therefore be determined with reference to the provisions of section 3 of the 2002 Act. It is common cause that the six month period in question commenced when the 2002 Act came into operation i.e. 28 November 2002. The six month period thus expired on 28 May 2003. The notice was given on 29 October 2003.

Who is the "creditor" in terms of the 2002 Act?

[9] It is applicant's principal contention that the provisions of section 3 of the 2002 Act do not apply to her personally as she is the guardian of Junate and as such not included in the definition of "creditor" in the 2002 Act. The "creditor" in this case, according to the argument, is Junate. If this argument is valid then the notice period in terms of section 3(2) of the 2002 Act never commenced running as Junate, by reason of his mental disability, never acquired knowledge or deemed knowledge, within the meaning of section 3(3)(a) of the 2002 Act, of the identity of respondent and of the facts giving rise to the debt.

[10] Respondent, on the other hand, contended that the term "creditor" in the 2002 Act includes applicant in her capacity as the guardian of Junate. They pointed out that it is in that capacity that applicant intended instituting the present proceedings within the meaning of section 3 of the 2002 Act.

[11] It seems to me that applicant's contention in regard to the meaning of "creditor" in the 2002 Act is valid. It accords with the general principle that where a guardian acts on behalf of a minor, it is still the minor who is party to the action. See Guardian National Insurance Co Ltd v van Gool NO 1992 (4) SA 61 (A) at 66H-I; Mokhesi NO v Demas 1951 (2) SA 502 (T) at 503E; Greyling v Administrator, Natal 1966 (2) SA 684 (D) at 689A-B.

[12] Applicant's contention is also supported by the meaning of "creditor" in section 13(1)(a) of Prescription Act 68 of 1969 ("the Prescription Act") which provides that the completion of prescription is delayed, inter alia, "If ... the creditor is a minor or is insane or is a person under curatorship...". It is clear from this that the term "creditor" in the Prescription Act includes a minor and not his guardian. The provisions of the Prescription Act (including section 13(1)(a) thereof) were expressly incorporated in 2002 Act in terms of section 2 thereof.

[13] Applicant's interpretation of the word "creditor" is also supported by the decision in Brand v Williams 1988 (3) SA 908 (C). The court dealt with the application of the provisions of section 12(3) of the Prescription Act to a minor. That section reads as follows:

"12 (1) Subject to the provisions of ss (2) and (3), prescription shall commence to run as soon as the debt is due.

(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care."

The court held that that the mere fact that a creditor who is a minor would not be able to institute proceedings without the assistance of his guardian was no reason for construing the word "creditor" in section 12 of the Prescription Act as a reference to his guardian, or for imputing the knowledge of the guardian to the creditor for purposes of the section. See the following dicta at 912F-913A:

"The mere fact that a creditor who is a minor would not be able to institute proceedings without the assistance of his guardian is no reason for construing the word 'creditor¹ in s 12(3) as a reference to his guardian, or for imputing the knowledge of the guardian to the creditor for the purpose of the section. To the extent that the decision in Jacobs' case is in conflict with this approach, I decline to follow it and prefer instead the decision in the Greyling case.

There is nothing in the Prescription Act to suggest that the word 'creditor¹ in s 12(3) is to be construed as meaning the creditor's guardian, if the creditor is a minor. Such a construction would in effect involve a rewriting of the section and in my judgment cannot be supported.

In certain circumstances knowledge acquired by an agent may be imputed to his principal. This does not mean, of course, that, for the purpose of s 12(3) of the Prescription Act, knowledge acquired by a minor's guardian as to the identity of the minor's debtor is necessarily to be imputed to the minor. Moreover, I can find nothing in the section to justify such a construction. On the contrary, if regard is had to the nature of the protection afforded by the Act to minors, it appears that the intention of the Legislature was not simply to impute to a minor the knowledge and maturity of his guardian. As already observed, a claim arising during the minority of the creditor cannot become prescribed until the expiry of at least one year from the day on which the creditor attained his majority (see s 13(1)). This is so regardless of the fact that the creditor's guardian may have been in a position to institute action on the creditor's behalf for many years during the latter's minority and indeed for a period much longer than the relevant prescriptive period."

[14] The construction accords furthermore with the common law position as described in President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (AD) at 773E/F-GH:

"The principles of prescription, including both acquisitive and extinctive prescription (verkrygende en bevrydende verjaring) are discussed by numerous Roman Dutch writers; such writers are not in complete agreement on all aspects but one principle in particular seems to have been universally accepted, namely that prescription did not run against a minor or other person under disability during such disability. One writer, Troplong, seems to have suggested that this principle did not apply if the minor had a guardian who would sue on his behalf, but Pothier did not hold the same view and none of the Dutch writers seem to have mentioned such an exception; see Wessels, Law of Contract, 2nd ed., vol. 2, p. 748, para. 2764 et seq."

[15] Counsel for respondent focused on the concluding phrase of the definition of "creditor" which reads "and includes such person's tutor or curator if such person is a minor or mentally ill or under

curatorship, as the case may be". This indicates, they submitted, that the definition of "creditor" is non-exhaustive, signifying that the list extends the meaning of the term being defined. In this regard they referred to Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) para [20] where it is said that the word "includes" is as a general rule a term of extension.

[16] I do not agree with the latter submission. The reference to a "tutor" in this context is somewhat curious but I do not think that it supports the construction contended for by counsel for respondent. Had the legislature intended to include the guardian of a minor in the definition of "creditor" it would, in my view, have said so clearly.

[17] I agree therefore with applicant's contention that she, in her capacity as guardian of Junate, does not fall within the ambit of the provisions of section 3 of the 2002 Act. Junate is the "creditor". He was at all times mentally disabled and did not and could not acquire knowledge of the identity of the debtor and the facts giving rise to the debt.

The condonation application

[18] In view of my conclusion as to the meaning of "creditor" in the 2002 Act it is strictly not necessary to deal with the application for condonation. I have nevertheless considered it and I propose to discuss it on the assumption that my opinion on the meaning of the word "creditor" in the 2002 Act may be wrong.

Prescription

[19] In terms of sub-section 3(4)(b) of the 2002 Act applicant must comply with three requirements. The first is that the debt has not been extinguished by prescription. Counsel for respondent accepted that as from 28 November 2002 (the date of the commencement of the 2002 Act) the running of prescription was suspended in terms of section 13(1)(a) of the Prescription Act 68 of 1969 as Junate is a minor. Counsel for respondent argued, however, that the debt was extinguished by prescription in terms of section 2(1)(c) of the 1970 Act before the date of the commencement of the 2002 Act as a period of 24 months had elapsed from the day on which the debt became due until the 2002 Act came into force.

[20] It seems to me, however, that the judgment in Meintjies NO v Administrasieraad van Sentraal-Transvaal 1980 (1) SA 283 (T) contains a complete answer to respondent's submission. The court held that the period of 24 months mentioned in section 2 (1) (c) of the 1970 Act, is a prescriptive period and not an expiry period ("vervaltermyn") as there is no inconsistency, as contemplated in section 16 (1) of the Prescription Act, between the provisions of the 1970 Act and the general provisions of chapter III of the Prescription Act.

[21] The effect of Meintjies' decision is that in terms of section 13(1)(a) of the Prescription Act the extinction of a debt in terms of section 2(1)(c) of the 1970 Act in respect of which a minor is the creditor (as in this case), is not completed until a year has elapsed after he has attained majority. The Meintjies decision was followed in Ramajela v Administrator, Cape 1990 (4) SA 11 (E) at 13H-J and referred to with apparent approval in Provinsie van die Vrystaat v Williams NO 2000 (3) SA 65 (HHA) para [12].

[22] This conclusion makes it unnecessary to determine whether applicant (assuming she is the "creditor" a defined in the 1970 Act) could, before 28 November 2000, by the exercise of reasonable care, have obtained knowledge of the facts from which the debt arose in terms of section 2(2)(c) of the 1970 Act. If not, the debt would not have been extinguished by prescription before the 2002 Act came into operation.

[23] Applicant has therefore complied with the first requirement of section 3(4)(b) of the 2002 Act as the debt has not been extinguished by prescription.

Good cause

[24] The second requirement in terms of section 3(4)(b) of the 2002 Act, is that good cause exists for the failure of the creditor to give timeous notice. In Madinda v Minister of Safety & Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) the Supreme Court of Appeal said this, in para [8] at 316C-D, in regard to the standard to be applied to an enquiry under this provision:

"[8] The phrase 'if [the court] is satisfied' in s 3(4)(b) has long been recognised as setting a standard which is not proof on a balance of probability. Rather it is the overall impression made on a court which brings a fair mind to the facts set up by the parties. See eg Die Afrikaanse Pers Beperk v Neser

1948 (2) SA 295 (C) at 297. I see no reason to place a stricter construction on it in the present context."

[25] In the Madinda judgment the court also analysed the meaning and effect of the concept 'good cause'. The court said, inter alia, the following, in para [10] at 316E - F:

"'Good cause' looks at all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of justice. In any given factual complex it may be that only some of many such possible factors become relevant. These may include prospects of success in the proposed action, the reasons for the delay, the sufficiency of the explanation offered, the bona fides of the applicant, and any contribution by other persons or parties to the delay and the applicant's responsibility therefor."

[26] In the founding affidavit in support of her condonation application applicant said the following:

"11. By way of background, I am a machinist at Sugar Bay in Elsies River, Cape Town. I completed standard eight at school, and have no other formal education. I have never been married. I live in a wendy house in a back yard in Bishop Lavis with my sons Jamie and Junate, and my boy friend.

12. When Junate was born in December 1998, a female doctor told me at the hospital that his brain was damaged and that he would never be able to care for himself. The doctor said that she would speak to the professor about the reasons for Junate's condition, but she never came back to me. She or anyone else at the hospital never told me that Junate was injured because the hospital had made mistakes, and I was never told about any of the facts or circumstances described in the hospital's clinical records which, my experts say, show that the hospital's negligence caused Junate's brain injury. Therefore, I never suspected that the hospital might have been negligent or that facts which could support that conclusion existed.

13. Between December 1998 and October 2003 I took Junate to the hospital for treatment on numerous occasions, but no one there ever told me that I had not been properly monitored during my labour when Junate was born, or that he had suffered a lack of oxygen in my womb which could have been prevented. I just assumed that Junate's condition occurred for reasons which could not have been prevented. No one ever showed my or Junate's medical records to me at the hospital. And before 2003, no one at the hospital or anyone else told me or suggested to me that the hospital had been negligent or that Junate had not been properly monitored during my labour when he was born.

14. It was only sometime in 2003 that a friend of mine whose son had been injured in a car accident told me that De Vries Shields, my attorneys of record, are willing to investigate cases like Junate's and that sometimes a baby is born retarded because of a hospital's negligence. I went to see Ms Marietjie Hall of De Vries Shields in August 2003 and gave her permission to order Junate's and my medical records from the hospital. In October 2003, Ms Hall told me that she had obtained the opinion of a medical expert who said that the hospital records showed I and Junate had not been properly cared for or observed during my labour with Junate, and that it was the likely reason for his mental retardation.

15. I am told by Ms Hall that the hospital's clinical notes which she obtained showed that during the evening of 11 December 1998 while I was in labour at the hospital (Junate was born shortly after midnight), the hospital staff did not properly monitor Junate's condition and that the hospital staff did not follow the doctor's orders that I be monitored every two hours because of slow progress with my labour, and that if I did not make satisfactory progress an emergency caesarean should be performed. As a result, Junate was only born shortly after midnight in a severely asphyxiated state.

16. I then gave De Vries Shields permission to institute a claim against the defendant and, according to Ms Hall, she then sent a letter (JL1) on 29 October 2003 giving notice of my intended legal proceedings, which letter the defendant received by 31 October 2003.

17. I submit, therefore, that until October 2003 I did not know of the hospital's negligence or the facts which showed that it had been negligent, and that I could not reasonably be expected to have known about those facts at an earlier date. I could not give earlier notice of intended legal proceedings because I did not know of these facts before then.

18. Therefore, I submit that good cause exists for my failure before 31 October 2003 to give notice to the defendant of my intended legal action."

[27] In regard to applicant's prospects of success she annexed an affidavit by Ms Karin Schwenk, a registered and qualified nurse and midwife. Ms Schwenk said, inter alia, the following:

"5. In my experience and according to my training as a nurse and a midwife, it is a normal and vital duty of nurses and midwives who observe and/or treat patients in a hospital, including hospital labour wards, to faithfully record their observations and their nursing interventions of the patients in their care.

6. One of the most critical duties of a nurse is proper documentation, a concept which is introduced to students during their earliest exposure to nursing principles and practice. Such documentation (also referred to as "clinical notes") are necessary in order to inform other health care workers of the progression of the patient's condition, symptoms observed and treatment provided. This task is so central to, and a vital part of, the duties and functions of a nurse or midwife that if a matter is not recorded it should be presumed not to have occurred.

7. A vital part of the duties of a midwife who deals with women in labour is to properly complete a partogram. This partogram records the progression of the patient's cervical dilation, contractions, the foetal heart rate, and the presence or absence of decelerations of the foetal heart rate and other parameters. The partogram must be initiated as soon as the patient is admitted and confirmed to be in labour because it provides a summary of the progression of latent and active labour with which other health carers could quickly assess the condition of the patient and the foetus. When a foetal heart is monitored by CTG during active labour, half hourly analysis of the base line of the foetal heart rate and the presence or absence of decelerations should be recorded on the partogram. If the midwife has any doubt about the interpretation of the tracings, the obstetrician should be consulted.

8. A CTG (cardiotocograph) is sued to monitor the foetal heartbeat in conjunction with the mother's contractions. If the printing function of the CTG is activated, it will print the heartbeat and intensity of each contraction in graphic form on a strip of paper, from which the existence or absence of foetal distress may be deduced. Tracings (the CTG printout on the strip of paper) must still be monitored by nursing staff, properly interpreted and duly recorded in the Partogram. The fact that CTG monitoring was being done does not prove that the nurses regularly read them, properly interpreted them or would have diagnosed foetal distress.

9. I have examined some of Ms Lakay's hospital records, including the labour admission form, the labour report and the partogram, concerning her labour at Tygerberg Hospital during the evening of 22 December 1998. While the labour admission form (which doctors complete) indicated that VFM was checked at 19h38, the partogram indicates that no observations was done by nursing staff before 22h00 concerning the presence or absence of decelerations of the foetal heart rate. The foetal heart rate was checked hourly instead of half hourly, and only until 22h00. After 22h00 neither the foetal heart rate nor the presence or absence of decelerations were observed despite the second stage of labour (active bearing down) only commencing at 23:30, according to the labour report.

10. According to my experience and training as a nurse and a midwife, which I verily believe reflect the standards of reasonable nursing and hospital practice, the absence of notation of observations in Ms Lakay's hospital records must be presumed to mean the observations were not made. If they were made but not recorded, it would have amounted to a serious deviation from reasonable and prudent nursing practice and would be inconsistent with my training and experience as a nurse at Tygerberg Hospital and elsewhere."

[28] Applicant also referred to a medical report dated 13 February 2009 by Prof Clarissa Pieper, a neonatologist at the University of Cape Town. The final section reads:

"It is quite clear that the mother had an uneventful pregnancy. During labor the mother had poor progress, the recommendations of the consultant at Tygerberg were not followed and the observations until the delivery were poor. A severely asphyxiated baby was born with poor Apgars despite good initiation of resuscitation. The baby developed early and intractable seizures and care was withdrawn on day 5 of life because the prognosis was extremely poor. The end result was a severely damaged child who will need continuous care for the rest of his life and who will always have a complete dependency on other carers for all his needs.

In my opinion the subsequent neurological deficit and global brain damage was caused by the failure to monitor the mother during the later stages of labour and to deliver this baby timeously. This baby developed foetal distress in the final in the final stages of labour and became severely hypoxic and compromised in the uterus, which resulted in a baby born close to death and was the probable cause of its severe neurological deficit."

[29] In addition reference was made to a report byDrDR Dalrymple, gynaecologist, which had been submitted by applicant in terms of rule 36(9)(b). His conclusions read as follows:

"Berenay Lakay was referred to Tygerberg Hospital for supposedly progress in labour.

Reviewing the documents it is apparent that she had a prolonged latent phase of labour which is not detrimental to the baby.

Her progress subsequent to her admission to Tygerberg Hospital is compatible to the progress expected from a primigravid patient in that she was assessed by Dr Williams at 19h58 to be 8cms dilated and fully dilated at 22h55.

What is of great concern is that over a period of 2 hours i.e. from 22h00 to the birth of a severely compromised baby, shortly after midnight no recording of the foetal heart is to be found in any of the documents.

It would appear thus that any foetal distress occurring during this period would have gone undetected.

As such this construes negligent care of a woman in labour.

It would appear from the paediatric notes that the cerebral palsy suffered by Baby Lakay was due to hypoxia during labour/birth.

I suggest that a paediatric opinion be sought in order to verify

this."

[30] Dr David Bass, medical advisor in the department of health in the Province, deposed to the answering affidavit on behalf of respondent. At the outset he said the following:

"The primary basis for the opposition is that the as a direct consequence of the Defendant either not having received timeous and propernotification as statutorily required of the Plaintiffs intention to institute legal proceedings or the Plaintiff's failure to timeously institute legal proceedings, the Defendant has been materially and seriously prejudiced in defending the Plaintiff's claim. This is particularly so given that the Plaintiff doe s not indicate good cause for her failure to have complied with the requisite statutory notice requirements. The exact nature of the prejudice suffered by the Defendant is detailed below."

[31] Dr Bass described respondent's defences in his answering affidavit action. Counsel for respondent summarised the defences as follows:

(1) As a general practice at TBH [Tygerberg Hospital] applicant would have been regularly monitored during her labour and Junate's FHR [foetal heart rate] would have been regularly monitored either with a CTG machine which was readily available in 1998 in the labour ward at TBH in 1998 to do continuous CTG monitoring on a baby in circumstances where labour was prolonged as was the case with the applicant.

(2) Electronic foetal monitoring is not prospectively reliable at predicting the exact time of possible injury to the brain due to lack of oxygen.

(3) At no stage was there any indication of foetal distress or any indication of hypoxia during labour, nor do the medical records indicate any such distress. The CTG is a sensitivity tool and cannot be guaranteed as a clear indicator. At time the CTG shows normal tracings and yet there are still birth defects or neurological difficulties or severe complications. It is not by itself conclusive.

(4) The absence of FHR recordals in the medical records does not mean that such observations did not take place. The fact that the CTG tracings were available, might well mean that the nursing staff either did not make recordals immediately and directly in the medical records, either because they were too busy, or because there were no changes that required recordal. The absence of such recordings in the applicant's medical records does not automatically lead to the conclusion that the Plaintiff was not properly monitored during her labour or that the hospital staff did not follow the doctor's order to monitor her every two hours.

(5) An easy and uncomplicated ventouse delivery was performed as the Plaintiff was tired and her efforts were no longer effective.

(7) Immediately prior to a ventouse extraction the FHR would have been monitored and had there been any foetal distress it would have, at that juncture, been discovered.

(8) An assisted delivery by ventouse extraction would not have been performed if faced with foetal distress as this procedure would not be used to deliver a foetus in distress as it takes longer.

[32] Counsel for respondent argued that the court should approach the question of prospects of success as in ordinary motion proceedings ie on the basis of the facts admitted or alleged by defendant. I do not agree with this submission. Prospects of success is but one of the factors to be taken into account and the proper test at this stage, as set out in the Madinda judgment, is to judge the issue on the basis of all the facts set up by both parties. The court, furthermore, is not called upon at this stage to decide the merits of the action.

[33] It is clear that there are material differences between the experts to be called by applicant and respondent. This is not unusual in an opposed medical negligence trial. Upon a conspectus of the medical evidence to be adduced by applicant, I am however of the view that she has fair prospects of success in the action.

[34] Given applicant's socio-economic background and the difficulties that she faced in ascertaining the facts upon which her cause of action is based, her explanation for her failure to give the notice to respondent within the requisite six month period, is in my view acceptable.

[35] I am accordingly of the view that applicant has shown that good cause exists for her failure to give the notice timeously.

Unreasonable prejudice

[36] In the Madinda judgment, para [21] at 320I-J, the court said the following in regard to the third requirement ie the question of unreasonable prejudice:

"The approach to the existence of unreasonable prejudice (not simply any level of prejudice, an aspect which the judgment of the court a quo blurs) requires a common sense analysis of the facts, bearing in mind that whether the grounds of prejudice exist often lies peculiarly within the knowledge of the respondent. Although the onus is on an applicant to bring the application within the terms of the statute, a court should be slow to assume prejudice for which the respondent itself does not lay a basis."

[37] Dr Bass summarised the prejudice to be suffered by respondent if condonation is granted, as follows:-

"55.1 The Defendant has been materially and unreasonably prejudiced a number of respects by the plaintiff's delay in giving the defendant notice of intended legal proceedings and in the delay in instituting legal proceedings:

55.1.1 Firstly, the absence of the relevant CTG tracings to which I have already referred to herinabove. I am advised that had this matter been brought to the attention of TBH within the requisite statutory period the CTG tracings would have been preserved. I refer to what I have already stated in respect thereof. Plaintiff's recollection that a CTG machine had not been used on her is clearly incorrect given that her medical records reflect at least one reading which would have emanated from a CTG machine. As already pointed out the fact that there is no notation of CTG monitoring in the Plaintiff's medical records does not mean that the Plaintiff had not been monitored. It is denied that nursing procedures that prevailed in 1998 would have required CTG monitoring to be recorded separately or for such CTG tracings to be available five years later. As I have already pointed out CTG tracings is not likely to be legible five years later.

55.1.2. Secondly, the availability of witnesses. Given the effluxion of time and the turnover of staff, Defendant has not been able to access material witnesses. Dr Williams is currently in Wellington, New Zealand and I refer to what I have already stated in relation to his availability to testify. There is no guarantee that Dr Williams will made the trip to South Africa to testify once the trial commences in February 2010.

55.1.3. Also given the effluxion of time, the Plaintiff's records have become illegible and it has not been possible to establish with certainty who exactly of the nursing staff, who had been on duty in the labour ward at the appropriate times and who exactly had attended to the Plaintiff. Although some of the nursing staff who were employed at the TBH labour ward remain in the employ of TBH, enquiries indicate that they have no independent recollection of the Plaintiff's case.

55.1.4. Thirdly, given the lengthy period of time from when the Plaintiff was a patient at TBH to when the first notice that she intended to institute litigation was received i.e. almost five years, Defendant had not been able to obtain contemporaneous statements from material witnesses. By the time the notice had been received it was highly unlikely that the medical staff in the busy labour ward at TBH would have been able to remember exactly how they had monitored and treated a specific patient five years earlier and would not be able to recollect their actions in a manner which would amplify the available medical records. The Defendant's "best evidence" is thus the general procedures that are followed.

55.1.5. I have often found that in cases where nursing staff are timeously confronted with the medical records that they kept in relation to a particular patient they are able to explain why certain observations were made or others had been omitted. For example, had we been able to locate the particular nursing sister who had been responsible for monitoring the Plaintiff, we would have been able to ascertain from her what her practice was in relation to the recordal of CTG monitoring into the medical records.

55.1.6. Although the Plaintiff's medical records are available the Defendant is prejudiced in that given the effluxion of time the nursing staff who were employed in the labour ward when the Plaintiff was admitted (and who remain employed) have no independent recollection of her treatment other than what is written in the notes and what had been the general practice at the time in the TBH labour ward.

55.1.7. The Plaintiff does not allege any negligence on the part of the Bishop Lavis MOU. Thus no evidence in relation to the treatment received there would be of any relevance. The only expert evidence on which Plaintiff relies in relation to the events leading up to the birth of Junate is that of Dr Dalrymple. I refer to what I have already stated in relation to his expert summary attached hereto marked "DB1". The only other expert summary filed on behalf of the Plaintiff in relation to the merits of the claim is the report prepared in 2005 by a neurologist, Dr Thomson. The opinions expressed in that report relate to events which occurred during Junate's post natal course, a period in respect of which there is no allegations of negligence on the part of the medical staff at TBH,

55.2. The prejudice is furtherexacerbated in that having not given notice of an intention to institute legal proceedings in 2003, and having obtained further expert reports in 2005, the Plaintiff only instituted legal proceedings during February 2006 and only sought to provide the Defendant with her medical expert reports in 2008. This court is not provided with any explanation for this delay. Furthermore, Plaintiff's legal representative, despite being in possession of expert reports since 2005 in respect of the reports prepared by Drs Dalrymple and Thomson, only provided such reports to the defendant during September 2008. It was only then for the first time that Defendant was made aware of the exact nature of the Plaintiff's complaints in relation to the medical records. By then almost ten years had elapsed since the events had taken place at TBH labour ward.

55.3. In the premises Defendant is indeed prejudiced by Plaintiff's delay in not having given Defendant the appropriate notice or for not having instituted action within 24 months of when the "debt arose" and Plaintiff has failed to show good cause for such delays."

[38] It seems to me, however, that Dr Bass has misconceived the nature of the enquiry in this case in respect of unreasonable prejudice. The question is not to determine the extent of the prejudice suffered by respondent from the date of the incident until the time when the notice was given. The enquiry relates to the prejudice that was suffered by respondent during the period of some five months in respect of which the notice was late ie the period from 28 May 2003 to 29 October 2003.

[39] In my view respondent has not shown that he/she suffered any unreasonable prejudice during this five month period. The cardiotocograph tracings, so it would appear, were lost before the date of the commencement of the 2002 Act. The non-availability of witnesses also occurred before that date. The same applies to the alleged illegibility of records and the problems regarding the recollection of the events by potential witnesses.

[40] Insofar as respondent complains about the delay between the giving of notice and the institution of the action, I do not think it is relevant. See the Madinda judgment para [22] at 321DE:

"The appellant had the same rights as any other litigant in relation to when she issued summons in the matter: she had to do so before her claim prescribed and the action once instituted would be subject to the usual hazards of litigation including systemic and other delays. Reliance on delay in bringing an action to trial was thus irrelevant to the appellant's default."

[41] It is my view therefore that applicant has also complied with the third requirement of section 3(4)(b) of the 2002 Act.

[42] In the circumstances I am of the view that applicant, had she been the "creditor" in terms of the 2002 Act, would have been entitled to the condonation sought by her.

Conclusion

[43] Applicant is accordingly entitled to the principal relief sought by her. The question of costs is, however, somewhat complicated. Applicant initially sought condonation of the failure to give timeous notice. Respondent, with full knowledge of applicant's case, elected to oppose the application. Applicant then amended the relief sought by her. Respondent continued to oppose the application. His/her opposition has been unsuccessful. Respondent's opposition would also have failed if condonation had been the only issue. In the circumstances it seems to me that it would fair to order that respondent should pay the costs occasioned by his/her opposition to the application as from the time when he/she opposed the condonation application.

[44] In the result, I grant the following orders:

1. It is declared that applicant's action against respondent is not barred by reason of non-compliance with the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

2. Respondent is ordered to pay applicant's costs occasioned by his/her opposition to the application.

A.P BLIGNAULT