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[2020] ZAGPJHC 155
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E M v Member of the Executive Council for Health and Development (Gauteng) (4026/2014) [2020] ZAGPJHC 155 (4 March 2020)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 4026/2014
In the
matter between:
M
E
obo
Applicant
M
K
and
THE
MEMBER OF THE
EXECUTIVE
Respondent
COUNCIL FOR HEALTH AND
DEVELOPMENT
(GAUTENG)
JUDGMENT
SENYATSI J:
A:
INTRODUCTION
[1]
This is an interlocutory application to compel the Respondent to
identify what he/she deems to be the remaining issues in dispute
between the parties.
[2]
The action was instituted by the Applicant in her representative
capacity on behalf of K M.
[3]
The action furthermore, relates to the admission and confinement for
childbirth of the Applicant during the term of gestation
at the Chris
Baragwanath Hospital on 4 October 2010. The action also relates to
the ultimate parturition of the then unborn child,
K M at the Chris
Baragwanath Hospital on 4 October 2010 by means of caesarean section.
[4]
The trial was originally set down for 2 September 2019. The trial was
postponed
sine die
.
[5]
During the trial DJP Mojapelo gave certain orders. Of relevance to
today’s application are the following orders:
5.1.
The reports of the Defendant’s
obstetrician and nursing expert shall
be
served to the plaintiff by 17 September 2019;
5.2.
Joint minutes between the obstetrician and nursing expert shall be
procured by 27 September 2019.
[6] It
is common cause between the parties that the orders set out above,
were complied with.
[7] It
is also common cause than an extensive follow up pre-trial was held
on 15 November 2019 by the Applicants attorneys and Respondent’s
counsel.
[8]
According to the Applicant’s Counsel the Respondent admitted
the statements quoted following what DJP Mojapelo ordered
in so far
as the statements were consistent with the joint minutes.
[9] It
is averred on behalf of the Applicant that she recorded that she
could not identify disputes after having regard to the joint
minutes.
The Respondent also contends the Applicant, was required to state
what she/he deemed to be in dispute. It is further averred
that the
Respondent recorded that she/he required time to formulate the
dispute.
[10]
The Applicant avers furthermore that it was agreed that the
Respondent would identify the disputes and revert to the Applicant
by
18 November 2019 to indicate how much time was needed to commit with
the Respondent’s experts to formulate the dispute.
[11]
The Applicant’s rights to approach interlocutory court for
relief were reserved.
[12]
In opposition to the relief sought, the Respondent contends that the
Application has no merits, is unwarranted and that it
must be
dismissed with punitive costs order.
[13]
The Respondent contends that the Applicant does not disclose the true
facts relating to the parties on disputes issue. According
to the
Respondent, the Applicant is misleading this Court.
[14]
The Respondent states in amplification of his/her contention that
paragraphs 21, 22 and 23 of the pre-trial minute clearly
creates a
dispute.
[15]
In paragraph 21 of the pre-trial minute, there were three questions
which were put to the respondent. No admissions were made
on these
questions. In my respectful view, these would be disputes on their
own requiring to be proven at trial. I am in agreement
with Mr Sibuyi
that in so far as these are concerned, these are clearly identifiable
as disputes.
[16]
In so far as paragraph 22 of the pre-trial minutes is concerned sub
paragraph 22.1 following a request by the Applicant that
“ the
following can no longer be disputed by the defendant and should be
admitted forthwith:
22.1.
The negligence of the employees of the clinic and hospital resulted
in an absence of appropriate monitoring of the progress
of birth
prescribed by the applicable guidelines;
22.1.1.
Answer: The plaintiff should identify the specific clauses of the
guidelines she is of the view the Defendant did not adhere
to.”
This in my view, creates
a dispute and therefore not need to amplify same as contended by Mr
Uys.
[17]
In regards to paragraphs 22.2 to 22.5 of the joint minute, the answer
given by the Respondent was that the Respondent does
not make any
admission and that legal causation has to be proved. From this
answer, the only inescapable conclusion is that the
statements made
are disputed.
[18]
With regards to paragraphs 23 of the joint minutes, the answer given
was that the statement contained a legal conclusion and
it was not
admitted. This thus created a dispute.
[19]
The only contentious issue is in paragraph 24 of the joint minutes
where a statement is made that the Respondent is required
to state,
in terms of provisions of the Practice Directive 2 what she/he deems
to be in dispute. The answer was that the Respondent
required time to
formulate the dispute. This was vehemently denied by the Respondent.
Mr Sibuyi admitted that he was present at
the pre-trial conference
and that no such agreement was reached. He referred me to the email
he wrote to his instructing attorney.
I am in agreement that the
email is consistent with the submission.
[20]
Having regards to the disputes that could easily be identifiable from
the pre-trial minutes, I am of the view that the Respondent
is not in
breach of Practice Directive 2. In the contrary, the issues in
dispute are clearly identifiable from the pre-trial joint
minutes.
[21] I
hold the view that the Applicant has not proved that she is entitled
to the relief sought.
[22] I
have considered the submission by Mr Sibuyi that I should consider a
punitive cost order against the Applicant or her attorneys.
In
exercising my discretion and I am not persuaded that such punitive
cost order would be justified under these circumstances.
I am not
persuaded that the Respondent needed to brief two counsel to argue
this application.
ORDER:
[23]
The following order is made:-
(a)
The application is dismissed with costs.
(b)
The applicant is ordered to pay the costs of one Counsel.
__________________________________
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
Date interlocutory
application heard: 03 March 2020
Date of Judgment: 04
March 2020
Applicants Counsel: Adv.
P. Uys
Instructed by: Rene
Fouche Inc
Respondents Counsel: Adv.
W. Sibuyi SC
Adv. V.P. Ngutshana
Instructed by: State
Attorney