A R5m medical negligence claim is to be launched against the Eastern Cape Health MEC after the Eastern Cape High Court (Bhisho) last week granted an East London woman leave to pursue the lawsuit – linked to treatment at Cecilia Makiwane Hospital in Mdantsane.
Her case will now proceed after Acting Judge Ntsikelelo Mtshabe ruled in her favour.
Provincial Health spokesperson Siyanda Manana said the department was “studying the judgment”, reports Daily Dispatch.
Background
A summons had been issued against the MEC on 3 August 2022 followed with a notice in terms of rule 41A delivered to the State Attorney’s Office in East London three weeks later (22 August).
The respondent filed a notice to defend on 7 September, followed by a special plea on 20 October, the same year, contesting the summons on the grounds of non-compliance with the State Liability Act.
The department’s legal team argued that the summons had not been properly served on the State Attorney before proceedings started.
However, in his written judgment, Mtshabe said the legal requirements had been substantially fulfilled, and that no prejudice had been suffered by the department as a result of any delay or misstep in serving documentation.
Mtshabe said the State Liability Act did not specify that a summons must be served to the State Attorney before proceedings began, only that it be done within seven days of issue.
Even if there were technical non-compliance, he found that the purpose of the Act had been achieved.
“The respondent did file a notice to defend and a plea – clearly indicating they were aware of and prepared to engage in the matter,” Mtshabe said.
“The argument that the applicant should be barred is simply untenable.”
Mtshabe also highlighted that the department’s own court submissions cited its address as the State Attorney’s Office in East London, and that legal representation had been secured through that office.
This, he said, fulfilled the intention of the Act: ensuring effective legal representation for the state.
“The key is whether the MEC was adequately represented and whether the state attorney was afforded time to prepare – which they were,” Mtshabe said.
He concluded that there was no prejudice suffered by the respondent and that the applicant had effectively complied with the law.
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