MEC FOR HEALTH, EASTERN CAPE PROVINCE REASONS FOR JUDGMENT. [1] On 14 February 2014 I granted the following order; that:-

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1 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 HIGH COURT OF SOUTH AFRICA (EASTERN CAPE LOCAL DIVISION: MTHATHA) CASE NO. 997/13 In the matter between:- P.Q obo A.Q. PLAITNIFF And MEC FOR HEALTH, EASTERN CAPE PROVINCE DEFENDANT REASONS FOR JUDGMENT HINANA AJ: [1] On 14 February 2014 I granted the following order; that:- 1) The interlocutory application is dismissed with costs, such costs to include costs consequent upon the engagement of two Counsel. 2) The main trial is postponed sine die, 3) There is no order made in respect of the notice to amend, and 1

2 4) Reasons for judgment shall be furnished upon being requested within (14) fourteen days from today. [2] The plaintiff instituted action proceedings against the defendant and Mr Dugmore appeared for the plaintiff, Mr Dukada SC (with Mr Sambudla) appeared for the defendant. [3.1] On Wednesday preceeding the date of the hearing of this matter, this matter served in the judge s meeting and was enrolled at the instance of the plaintiff s attorneys. In my view, if the plaintiff s attorneys had informed the judge in the Wednesday meeting that this matter was not ready, this matter would not have been enrolled. [3.2] What was sought by the applicant in the interlocutory application was not brought to the attention of the judge who chaired the Wednesday meeting. [4] On 3 February 2014 the applicant (plaintiff) served and filed the:- a) The notice to amend its particulars of claim; and b) The interlocutory application. [5] NOTICE TO AMEND In its notice to amend, the plaintiff states:- BE PLEASED TO TAKE NOTICE THAT the above mentioned plaintiff intends amending her particulars of claim in the following respects:- 1. By the insertion before the existing paragraph 4 of the following paragraphs:- 2

3 4(A) At all times hereto, and more particularly from June 2008 to the end of February 2009: 4(A).1 The Department was responsible for any of the Department s contractual and delictual liabilities; 4(A)2. The Gateway clinic, fell under the authority of and was administered and operated by the Department; 4(A).3 The Department was under a legal duty of care to ensure the rendering of medical care, treatment and advise to the Plaintiff with such skill, care and diligence as could reasonably be expected of medical practitioners and nursing staff in similar circumstances obliging the Defendant to ensure that proper, efficient and reasonable health services were provided to members of public, including the Plaintiff, more particularly by reason of:- 4(A) (A).3.2 4(A).3.3 The department holding out to public, more particularly the Plaintiff, that the Gateway clinic is a facility where reasonable medical care, treatment and advice are rendered; The fact that the Plaintiff presented herself at the clinic for the monitoring and supervision of her pregnancy, whereafter her pregnancy was monitored and medically supervised by the members of staff of the Gateway clinic, who saw the Plaintiff periodically, until the end of February 2009; The provisions of Section 9,10,11 and 27 of the Constitution of the Republic of South Africa. [2] By the insertion before the existing paragraph 16 of the following paragraphs: 16A alternatively to paragraphs 6,7,8,9,11,12,13,14, and 15.1: 16A.1 The Defendants employees at the Gateway clinic, who were individually and/collectively under a duty of care to render medical care, treatment, 3

4 advice, supervision and monitoring to the Plaintiff in respect of her pregnancy with such skill and care and diligence as could reasonably be expected from medical practitioners and nursing staff in those circumstances, breached these duties and were negligent in one or more or all of the following respects: 16A.1. 16A A.1.3 he/she/they failed to test the Plaintiff inter alia for the presence of pathogens such as herpes simplex virus, and cytomegalovirus during the Plaintiff s pregnancy, when he/she/they could and should have done so; he/she/they failed to properly monitor and supervise the Plaintiff s pregnancy; he/she/they permitted Plaintiff to come to full term and to deliver a child who had sustained severe congenital brain damage in the form of hypotonic cerebral palsy, infinite epilepsy and developmental delay; 16A.2 During her pregnancy the Plaintiff was infected by the herpes simplex virus alternatively a cytomegalovirus, in consequence of which her baby A.Q. suffered the congenital condition referred to in paragraph 16A1.1 above; [3] By the deletion of the words as a result of the aforesaid breach of the legal duty referred to above A.Q. where they appear in paragraph 16 and the substitution therefore with the words As a result of the aforesaid breach of the legal duty set out in paragraphs 5,6,7,8,9,11,12,13,14,15,and 15.1 alternatively paragraph 16A, above, the Plaintiff:. 4

5 BE PLEASED TO TAKE NOTICE FURTHER THAT an application will be made to amend her particulars of claim accordingly at the outset of the trial in this matter. DATED AT JOHANNERSBURG ON THIS 03 RD DAY OF FEBRUARY 2014 [5.1] It is clear that the notice to amend introduced a new cause of action against the defendant specifically sought to introduce the Gateway clinic which was left out in the particulars of claim. [5.2] The notice to amend was served on the State Attorney, Mthatha on S. Tshitshi at about 09H30 on the 04 February [5.3] The notice of set down (of the main action) provides:- Kindly take notice that this matter is hereby set down for trial on Tuesday the 4 th day of February 2014 at 9h30. [5.4] This notice was served on Yanga on 18 December I may also mention that the notice of application for a trial date was served on Yanga on behalf of the defendant on 12 December (See Ketane v MEC for Health, EC and Another case no. 2776/11 Eastern Cape Division Mthatha). [5.5] In my view, and it is apparent from the above that the notice to amend does not comply with Rule 28 (2) of the Uniform Rules. Rule 28 (2) provides:- 5

6 The notice referred in sub rule 1 shall state that unless written objection to the proposed amendment is delivered within (10) ten days of delivery of the notice, the amendment will be effected. [5.6] I cannot understand on what basis would the plaintiff seek to effect such drastic amendments without affording the defendant an opportunity to either object or agree to it. [5.7] Faced with the non compliance with Rule 28 (2), the plaintiff, and whilst the court was in session, sought to withdraw the notice to amend and made no submissions on it. [5.8] Mr Dukada, quite correctly in my view, argued that the purported withdrawal of the notice to amend was not in terms of the rules. The Commentary (at page B1-178 by Erusmus, Superior Court Practice) is opposite in this regard. The learned authors state:- The fact that a party gives notice of his/her intention to apply for an amendment on the date of trial does not prevent his/her opponent from objecting thereto under this sub rule and the party seeking the amendment will thereupon have to make a substantive application.(and see the case law referred therein). [5.9] Mr Dugmore submitted that the plaintiff is not seeking any postponement but the order in terms of the notice of motion. [5.10] Mr Dukada further submitted that the main issue that was before court was to amend the pleadings but faced with the significant problem, the 6

7 applicant decides to focus on the interlocutory application (I will deal with the interlocutory application much more below). [6.1] In this matter, there was no notice of withdrawal. Rule 41 of the Rules of this court provides:- 1 (a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which event he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs, and the taxing master shall tax such costs on the request of the other party. [6.2] There was no consent from the parties and neither did the applicant ask for leave to withdraw the notice to amend. In my view, the purported withdrawal was invalid and Mr Dukada was perfectly correct to argue on the basis that the notice to amend was before court. He further argued, correctly in my view, that the notice to amend was not withdrawn in terms of the rules and the applicant (plaintiff) sought to, in the notice to amend, join the Gateway Clinic and its staff (which was not the position if recourse is had to the particulars of claim). As such, it was my view, proper to consider the notice to amend and the interlocutory application in order for me to decide as I did. [7.] This court did not make any costs order in respect of costs consequent upon the notice to amend because the argument was a once off argument 7

8 which was involving both the interlocutory application and the notice to amend, and on the same day. Further, the notice to amend was served at 09h30 on the day of the hearing of this matter. INTERLOCUTORY APPLICATION [8.1] It was served on the defendants attorneys at 9h30 on 04 February 2014 (the date of the hearing). In this application, the applicant asks for orders in the following terms:- (a) The defendant is ordered to provide the plaintiff with a copy of the expert medico legal report prepared by Dr R Nelson on 31 January (b) The defendant is ordered to provide to the plaintiff a copy of the expert medico legal report prepared by Dr R Singh, (and) a neonatologist, prepared pursuant to the examination of the plaintiff by Dr R Singh on 23 January [8.2] The affidavit in support of the application was deposed to by Mr Zuko, M.M Nonxuba (Mr Nonxuba) of the Nonxuba Inc. and commissioned by Mr Vumile Mafunda on 04 February Notably, the plaintiff is locally represented by Merssrs Potelwa & Co, Mthatha. [8.3] Mr Nonxuba alleges amongst others:- (3).The present application is designed to obtain a copy of the medico-legal reports prepared pursuant to the examination of the Plaintiff by the defendant s medical experts, in terms of the relevant uniform rules of Court. (4) On or about 15 January 2014 the Defendant, acting through its duly appointed case manager, SIMI, caused to be delivered to the Plaintiff s attorneys a notice 8

9 requiring the Plaintiff to present herself for examination by two experts on behalf of the Defendant, being Dr R Singh, a neonatologist, and Dr R Nelson. (5) Gynaecologist, in terms of Uniform Rue 36 (1). A copy of the s and notices in this regard are annexed hereto marked A, (6) In due course and on the 23 rd January 2014 and the 31 st January 2014 (being the rescheduled date in respect of Dr Nelson), the Plaintiff as examined by the aforementioned experts. (7) I corresponded telephonically with the attorney for the Defendant, Mr Tshitshi in this regard and he has informed me that in view of the lateness of the reports, the Defendant does not intend to utilise them. [9] The Respondent did not file and could not have filed its answering affidavit and both parties argued. Mr Dugmore heavily relied on Rule 36 (8)(a) and (b) of the Uniform Rules. This rule provides:- Any party causing an examination to be made in terms of sub rules (1) and (6) shall- (a) (b) cause the person making examination to give a full report in writing of the results of his examination and the opinions that he formed as a result thereof on any relevant matter; after receipt of such report and upon request furnish any other party with a complete copy thereof, and. [10] Mr Dugmore argued that the defendant failed to make the medico legal reports available to the plaintiff. He submitted that since the plaintiff was examined on 31 January 2014, the medico legal report could have been 9

10 made available to the plaintiff even over the weekend. In a very simple analysis, the submission by Mr Dugmore is that the defendant should have ensured that the report was prepared over the week end (i.e. 1 st -2 nd February 2014) and handed over to the plaintiff on Monday 3 February 2014 or that it should have been handed over during the weekend, even at night. [11] This argument, is my view untenable. The period between the assessment and the hearing of this matter is reasonably very short, and the plaintiff should have reasonably foreseen that this matter will not proceed on the date of trial because of what has been clearly stated above. In fact the affidavit in support of this application is relevant. Mr Nonxuba alleges:- 1. I respectfully submit that this is not a good and sufficient answer, and that in terms of the Uniform Rules the Plaintiff is entitled to copies of the aforementioned reports in terms of Uniform Rule 36 (8) (b). 2. The contents of the aforementioned reports are obviously germane to a determination of the issues in this matter and absent the provision thereof there exists a very real prospect of irremediable prejudice to the Plaintiff. [12] Mr Dukada argued that the interlocutory application was a non issue. The plaintiff realized that it would not be ready with the trial and decided to confuse everybody by bringing the interlocutory application and it should be dismissed. 10

11 [13] The interlocutory application does not specify the time frames for the filing of other affidavits. If it did, it would have defeated the object and the purpose for which the plaintiff had intended. In my view, the failure by the applicant to afford the respondent with time frames within which to file the opposing papers, its service of the interlocutory application on the day of the hearing and its argument that I should grant the order, was in my view, self destructive. In Gisman Mining (In liquidation) v L.T.A Earthworks, 1977 (4) SA 25 (WLD) at 27 H-28; the court held:- It does seem to me, however, that whatever the correct reading of Rule 6(11) may be, it cannot mean that in an interlocutory matter the applicant has unlimited time to file a replying affidavit. If the correct position is that there is no rule defining exactly the time within which affidavits must be filed, then in my view the Rule should at least be read to mean that they must be filed within a reasonable time. Prima facie, a reasonable time would certainly not be longer than the time prescribed in terms of Rule 6 (5) (e), unless there were some special circumstances applying. [14.1] It is discomforting for this court that litigants could not comply with the rules of this court. Such rules are not promulgated for the sake of being overlooked, but in my view, are meant for the proper administration of justice. Recently the Supreme Court of Appeal in Ensign-Brickford (South Africa) (Pty) Ltd and others v AECI Explosive & Chemicals Ltd 1998 (2)(SA 1085 (SCA) had this to say:- This court has in the past had an occasion to warn litigants of the consequences of a failure to comply with the rules. See for example Lafrenz (Pty) Ltd v 11

12 Dempers 1962 (2) SA 492 (A) at 497 H, Government for the Republic of South Africa v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (a) at 692H- 693A, Blumenthal and another v Thomson NO and another 1994 (2) SA 118 (A) and Federated Employers Fire & General Insurance Co Ltd and another v McKenzie 1969 (3) SA 360 (A). Litigants who do not in future follow the rules fully and intelligently will run the risk of being debarred from proceeding with their appeals. [14.2] In my view, the dictum of the Supreme Court of Appeal equally applies to this case. [15] In my view, the way the applicant conducted its litigation amounts to an abuse of process. In Beinash v Wixley 1997 (3) SA 721 (SCA) at 734F-H, the court held:- What does constitute an abuse of the process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all encompassing definition of the concept of abuse of process. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the truth are used for a purpose extraneous to that objective (See also Phillips v Botha 1999 (2) SA 555 (SCA) at 565 C-H). [11] For the reasons stated above, I granted the order. MN HINANA ACTING JUDGE OF THE HIGH COURT 12

13 APPEARANCES FOR THE PLAINTIFF: ADV DUGMORE INSTRUCTED BY : NONXUBA INC. LOCALLY REPRESENTED BY: POTELWA & CO. MTHATHA FOR THE DEFENDANT: ADV DUKADA SC (WITH ADV SAMBUDLA) INSTRUCTED BY : STATE TTORNEY MTHATHA Reasons delivered on: 13 MARCH

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