An East London woman has been granted leave by the Bhisho high court to pursue a R5m medical negligence claim against the Eastern Cape MEC for health.
The applicant, a 34-year-old woman from Scenery Park, alleges that she received negligent medical treatment at Cecilia Makiwane Hospital in Mdantsane.
Her case will now proceed after acting judge Ntsikelelo Mtshabe ruled in her favour last week.
Eastern Cape health spokesperson Siyanda Manana said on Thursday that the department was studying the judgment and would determine the appropriate way forward.
According to court papers, a summons was issued against health MEC on August 3 2022, followed with a notice in terms of rule 41A delivered to the state attorney’s office in East London on August 22 2022.
The respondent filed a notice to defend on September 7 2022, followed by a special plea on October 20, contesting the summons on the grounds of noncompliance 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 commenced, as required by the act.
However, in his written judgment, Mtshabe stated that 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.
“The return of service dated August 10 2022 indicates that the summons and rule 41A notice were served on the MEC’s office in Bhisho,” Mtshabe said.
“A second return, dated August 23, confirms service to the state attorney’s office in East London.
“This took place within eight court days of the initial service.”
Mtshabe said the State Liability Act did not specify that a summons must be served to the state attorney before proceedings commenced, only that it be done within seven days of issue.
Even if there was technical noncompliance, 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,” he 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.
“There is no provision in the act that automatically bars proceedings due to noncompliance,” he said.
“The key is whether the MEC was adequately represented and whether the state attorney was afforded time to prepare — which they were.”
He concluded that there was no prejudice suffered by the respondent and that the applicant had effectively complied with the law.
The matter is now cleared for the courts to consider the merits of the claim.
Daily Dispatch
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