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[2020] ZAGPJHC 161
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Munyai v Road Accident Fund; Matsimela v Road Accident Fund; Nyide v Road Accident Fund; Harding v Road Accident Fund; Moss v Road Accident Fund; Makhapela v Road Accident Fund; Koalane v Road Accident Fund; More v Road Accident Fund (2018/44046; 2012/13337; 2017/32542; 2018/36275; 2019/16443; 2019/1055; 2017/33700; 2019/6814) [2020] ZAGPJHC 161; 2021 (1) SA 258 (GJ) (29 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
IN
RE: SEVERAL RELATED MATTERS ON THE INTERLOCUTORY COURT ROLL
Case
no. 2018/44046
MUNYAI,
SHUMANI
MARIA
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2012/13337
MATSIMELA,
PHINEAS
SEGOPOTSO
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2017/32542
NYIDE,
DUMEKAHLE
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2018/36275
HARDING,
ROBERT
HENRY
Applicant
and
ROAD
ACCIDENT FUND
Respondent
Case
no. 2019/16443
MOSS,
JERMAYN CRAIG
ANTHONY
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2019/1055
MAKHAPELA,
JOYCE
DIKELEDI
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2017/33700
KOALANE,
MOLELEKI
JAMES
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
Case
no. 2019/6814
MORE,
REITUMETSE
PRISCILLA
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
THOMPSON
AJ
[1]
During the course of the week of 18 May 2020 I was tasked with
performing judicial duties in, what has become known as the trials
interlocutory court (“the interlocutory court”).
The interlocutory court is a motion court specifically dedicated,
as
set out in the Judge President’s Directive
[1]
(“the directive”) to deal with interlocutory matters in
trial matters. The purpose of the interlocutory court
is to
assist parties to obtain procedural relief against recalcitrant
litigants who are delaying matters from becoming trial ready.
[2]
During my stint in the interlocutory court I became increasingly
concerned at:
i.
the
lackadaisical manner in which affidavits were being drafted and
presented to court for consideration; and
ii.
the nature of
relief sought in various instances.
This
judgment is intended to deal with these concerns. These
concerns also impact on the effectiveness of the interlocutory
court
as judicial resources are being spent on having to peruse papers
which are inherently defective, either for the want of essential
allegations or due to the seeking of impermissible relief.
Furthermore, as these matters were not dealt with in open court
as a
result of the national lockdown due to COVID-19. The parties
relied primarily on written submissions. I accordingly
deem it
appropriate to provide reasons for orders made in certain of the
matters that served before me.
[3]
The appropriate starting point is the directive itself. Which
reads as follows:
“
19.
A motion court, the Trials Interlocutory Court, dedicated to
interlocutory matters in trial matters will sit Mondays
to
Thursdays every week, except during the period of dies non,
between 15 December and 15 January.
20.
Matters shall be set down on notice filed before noon on the Thursday
before the next week’s session, be succinct and
rarely more
than five pages of affidavit, and, where appropriate, brief heads of
argument shall be submitted at the hearing.
21.
Ordinary unopposed interlocutory matters not involving non-compliance
in a trial matter must not be enrolled in this Court.
22.
Draft orders in the Interlocutory court in duplicate bearing the name
of counsel, attorney and the email addresses of the parties
attorneys, shall be presented to the court and the registrar shall
prepare orders, with the draft orders as annexures, on the same
day
as they are granted, which shall be available to the parties
immediately, and which, furthermore, shall be emailed to the parties
thereafter as soon as possible.
23.
Any party who, having reason to be aggrieved by the other party’s
neglect, dilatoriness, failure or refusal to comply
with any rule of
court, provision of the practice manual or provision of this
directive, must utilise the trials interlocutory
court to compel
compliance and cooperation from the delinquent party.
24.
In particular, plaintiffs in category “Y” matters who
allege that the defendant is culpable in any way for an unnecessary
delay, must not hesitate to utilise this court
25.
Among the matters which this court will deal with will be:
25.1
the failure to deliver timeously any practice note or heads due,
25.2
a failure to comply with rule 36,
25.3
a failure to sign a rule 37 minute promptly,
25.4.
a failure to comply timeously with any undertaking given in a rule 37
conference,
25.5.
a failure to secure an expert timeously for an interview with a
patient,
25.6.
a failure to secure a meeting of experts for the purpose of preparing
joint minutes,
25.7.
non-compliance with any provision of this directive;
25.8.
any other act of non-cooperation which may imperil expeditious
progress of a matter may be the subject matter of an application
to
compel; the list is not closed
26.
In a proper case, punitive costs (including an order disallowing
legal practitioners from charging a fee to their clients) may
be
awarded where recalcitrance or obfuscation is apparent and is the
cause of inappropriately delaying the progress of any matter.”
[4]
The
lackadaisical
manner in which affidavits are being drafted is seemingly borne out
of a misunderstanding of item 20 of the directive;
which requires the
affidavit supporting the interlocutory application to be “rarely
more than 5 pages”.
The
value of the
Interlocutory Court
lies
in its’ ability to function ‘expeditiously’. Item
20 is intended to avoid burdening the judge with long-winded,
verbose
documents.
Furthermore,
the court deals with procedural matters which stem from predefined
precursory steps and thus mitigate in favour of
succinct affidavits.
[5]
Practitioners
have unfortunately
taken the stance that item 20 allows them to negate their
professional obligations and submit affidavits with
largely)
unsubstantiated allegations leaving the judge the unenviable task to
make assumptions. A legally untenable state of affairs
The
most frequent example of this state of affairs that came before me is
where an applicant sought an order to compel the other
party to
discover. In this regard the allegation relied upon is usually
phrased as “
To
date hereof, the respondent has yet to deliver a signed discovery
affidavit in the main action, despite the impending trial date.
”
A further allegation is then made in a follow-up paragraph dealing
with prejudice that there has been non-compliance
with Rule 35(1).
The problem with the aforesaid
is
that the alleged failure to comply with Rule 35(1) pertains to
the allegation of prejudice and not the precursory procedural
step of
calling upon the other party, in writing, to file a discovery
affidavit. The latter being the necessary allegation
in order
to sustain a claim to compel discovery.
[6]
The obligation to file a discovery affidavit arises either through
being called upon, in writing, to deliver a discovery affidavit
in
terms of Rule 35(1)
[2]
or, as
contemplated by Rule 37(1)
[3]
,
through a party receiving notice of a trial date. In all of the
applications before me, no allegation is made that either
a Rule
35(1) notice was delivered or that the other party had received
notice of the trial date. The court is expected to
assume that
a Rule 35(1) notice was served. As a fallback position the
argument is raised that even if the court is hampered
by the lack of
an allegation and proof that a Rule 35(1) notice had been served,
Rule 37(1) can be relied upon as there is an impending
trial date.
Anyone who has ever been at roll call for trial matters know that
where there is no appearance for a party, the
court must be satisfied
that due notice of the trial date had been given. The manner of
giving notice of a trial date is
governed by Gauteng Rule 7, in
particular sub-rule (5)
[4]
of
Rule 7. Although infrequent, it does occur that a party did not
receive notice of a trial date. It cannot automatically
be
assumed that notice of the trial date was duly served.
[7]
The precursory jurisdictional element of either a Rule 35(1) notice
being delivered or notice of a trial date as contemplated
by Rule
37(1) is thus a requirement before a court can compel a party to
deliver a discovery affidavit. To make such allegations
would
require no more, as an example, than a statement to the effect that
“
On [a particular date] a notice
in terms of Rule 35(1) was served on the respondent’s
attorneys. A copy of the notice
is attached as annexure “*”.”
As a court cannot issue orders based on assumptions, crisp and
concise allegations such as the aforesaid is strictly necessary
for
the court to assist an applicant by granting an order to compel
discovery. Legal representatives to applicants can hardly
complain that matters are being delayed if orders are not granted in
instances where the most basic of jurisdictional allegations
in order
to obtain relief are not made.
[8]
The interlocutory court will be quick to assist litigants to ensure
that their matters are trial ready and to call to order
a
recalcitrant litigant who is preventing a matter from becoming trial
ready. That being said, the interlocutory court
,
no less so than any other, will insist that the full gamut of legal
procedure and protocol necessary is followed and set out in
the
necessary affidavit before the relief sought, is granted.
[9]
It is a trite principle of law that in civil matters the parties are
the masters of their own ships. They decide how to
plead their
cases, subject only to general principles of law in relation to what
must be pleaded. They decide what witnesses,
if any, they wish
to call and they also decide the manner in which they are to lead the
evidence of witnesses. Despite the
aforesaid trite principle,
legal practitioners have taken to misconstruing, in particular, item
25.5 of the directive as giving
a
license to applicants to ask a court to direct a respondent to
appoint experts and do so within specified time-periods. The
directive was never intended to, nor could it, confer any power on
the courts to order a litigant to appoint experts.
The
intent/purpose of the directive is simply put, to enable an applicant
to approach the court for an order to
place
a respondent on terms to decide how it wishes to conduct and/or
present its case. To understand the difference, an analysis
of
Rule 36,
[5]
in so far it
pertains to the appointment and calling of expert witnesses, is
required.
[10]
Rule 36(1) creates a general procedural right to any party, where
damages or compensation in respect of alleged bodily injury
is
claimed, to require the claimant party to submit to a medical
examination. This general procedural right does not mean
that a
defendant is obliged to require a plaintiff to submit to a medical
examination. A defendant may accept the medical
evidence
submitted by the plaintiff.
[11]
Where a defendant does require a plaintiff to submit to a medical
examination in terms of Rule 36(1), the procedure by which
this is
procured is set out in Rule 36(2). One of two scenarios now
arise. The first scenario is where the defendant,
after the
plaintiff has submitted to the requisite medical examination, decides
and elects not to call the expert who conducted
the medical
examination as a witness. Seemingly, legal practitioners have
formed the view that due to item 25.2, the interlocutory
court can
now be approached to have the court compel the defendant to deliver a
Rule 36(9)(a) notice and thereafter a Rule 36(9)(b)
expert
summary/report. Nothing in the directive lends itself to this
interpretation. The prerogative of whether to
utilize a
particular expert as a witness remains within the discretion of the
respective parties.
[6]
This is due to the fact that a particular witness may not advance the
cause of the party who required the medical examination
in terms of
Rule 36(1), or the expert does not, in the opinion of the party who
requested the submission to the medical examination,
add anything of
value to that party’s case.
[12]
The first scenario is not without consequence to the defendant.
The plaintiff is entitled to know the opinion of the
expert employed
in terms of Rule 36(1). To this end Rule 36(8) is applicable.
Thus, in instances where a plaintiff submitted
to a medical
examination in terms of Rule 36(1) and the Defendant had not yet
given notice in terms of Rule 36(9)(a) that it intends
to call that
expert as a witness, the plaintiff cannot request the court to order
the defendant to deliver a Rule 36(9)(a) notice.
This is
because the court cannot tell the defendant how it should conduct its
case or who it should call as witnesses. This
does not leave
the plaintiff without relief. The plaintiff can, in terms of
item 25.2 of the directive, call upon the defendant
to furnish it
with a copy of the report. The plaintiff can also request
the court to place the defendant on terms to
decide whether the
defendant intends to call a particular expert as a witness and, if
the defendant elects to call a particular
expert as a witness to
deliver its Rule 36(9)(a) notice within a particular time. This
course of action by the court is permitted
as the court is not
directing the defendant how it should present its case or which
witnesses it should call, all the court is
doing is placing the
defendant on permissible terms to make decisions to avoid delays in
matters becoming trial ready.
[13]
In order to obtain the aforesaid relief a series of procedural steps
are required, compliance to which must be detailed in
the affidavit.
For example, “
The defendant caused
Rule 36(1) and (2) notices to be served on the plaintiff in respect
of [particular expert/s]. The plaintiff
submitted to the
medical examination and the examination was done on [date]. The
two months contemplated by rule 36(8)(a)
has lapsed and the defendant
has not informed the plaintiff of the existence of such report in
terms of rule 36(8)(b), nor has
the defendant given notice, in terms
of rule 36(9)(a) that it intends to call the aforesaid as an expert
witnesses. A notice
in terms of Rule 30A was served on the
defendant on [date], calling upon the defendant to comply with rule
36(8)(a) and (b).
A copy of the Rule 30A notice is attached as
Annexure “*”. The dies in terms of Rule 30A(1)
lapsed on [date]
and the defendant has failed to comply with the
rules. The plaintiff seeks an order compelling the defendant to
comply with
rule 36(8). In addition, the plaintiff seeks an
order compelling the defendant to make an election whether it intends
to
call any expert witnesses and, if the defendant so elects, to be
ordered to deliver its rule 36(9)(a) notices within a time period
as
specified by this court.”
These allegations cover all the necessary procedural steps required
and is sufficiently succinct to not exceed the provisions
of item 20.
[14]
The second scenario pursuant to a plaintiff’s submission to a
medical examination in terms of Rule 36(1) is where the
defendant
elects to call the expert as a witness and delivers a Rule 36(9)(a)
notice. Hereafter the relief that can be sought
by a plaintiff
is relatively clear. A plaintiff can seek a court to compel the
defendant to deliver its Rule 36(9)(b) expert
summary/report within
an allotted time.
[15]
This brings me to item 25.5 of the directive. Legal
practitioners have taken to interpreting item 25.5 of the directive
to mean that the court can compel a defendant to cause a plaintiff to
submit to a medical examination. This interpretation
is only
partially correct. If the defendant had given notice, in terms
of Rule 36(9)(a), of its intention to call a particular
expert, the
court can be approached to compel the defendant to cause the
plaintiff to submit to a medical examination in terms
of Rule 36(1).
In this scenario the court will
not overstep its’ bounds
as
the court will not be ordering the defendant how to conduct its case
or which witness to call. Rather, the defendant has
already
indicated which witness it intends to call and thereby how it intends
to conduct its case. The court
is
merely requested to assist in getting the defendant to timeously
conduct its case in a manner that will ensure that the matter
is
trial ready sooner rather than later.
[16]
However, when a defendant has not delivered a Rule 36(9)(a) notice
the court cannot order the defendant to cause the plaintiff
to submit
to a medical examination as this will amount to the court telling the
defendant how to conduct its case. This does
not leave the
plaintiff without a remedy. Nothing prevents the plaintiff,
where a defendant is recalcitrant in making decisions
whether to
appoint experts or not, to approach the interlocutory court to compel
the defendant to make an election whether it wants
to either have a
plaintiff submit to medical examination in terms of Rule 36(1) in
order to decide whether it wants to appoint
an expert in terms of
Rule 36(9)(a) or whether it wants to appoint an expert in terms of
Rule 36(9)(a) and require the plaintiff
to submit to a medical
examination in terms of Rule 36(1).
[17]
The interlocutory court is intended to do no more and no less than
being an easily approachable court, whilst abiding by the
normal
rules of evidence and procedure to making out a case, on time periods
as envisaged by Rule 6(11),
[7]
to assist the parties in getting a matter trial ready. To this
end the interlocutory court cannot direct or order a party
how it
should conduct its case or what witnesses it should call, but the
interlocutory court can compel compliance with the rules
or require a
party to make an election, within a specified time period, whether it
is going to employ the available provisions
of the rules.
[18]
I now turn to the respective cases before me.
[18]
In
Munyai
v RAF
[8]
the plaintiff sought that I order the defendant to deliver its Rule
36(9)(b) expert summary/reports that are still outstanding.
Glaringly absent from the founding papers was an allegation that the
defendant delivered Rule 36(9)(a) notice. I permitted
the
plaintiff to deliver a supplementary affidavit dealing with this
lacuna
in the application. In the supplementary affidavit it turned
out at the time of the delivery of the interlocutory application
to
compel, no Rule 36(9)(a) notices had been delivered by the defendant,
but subsequent thereto Rule 36(9)(a) notices had been
delivered by
the defendant. As a trial date of 3 June 2020 have been
obtained and as the only two expert reports outstanding
on the part
of the defendant relates to medical examinations that already took
place on 10 and 17 October 2019, and further taking
into
consideration that the time period as provided for in Rule 36(8)(a)
had long since run its course, I am inclined to exercise
my
discretion in
favour
of
the plaintiff. I am of the view that the interlocutory court is
not designed to frustrate a party in ensuring a matter
is trial
ready, but rather to assist parties in getting a matter trial ready.
The fact that the Rule 36(9)(a) notices by
the defendant was only
delivered after the interlocutory application was launched should
not, in the particular facts of this case,
preclude the plaintiff
from obtaining relief. As such I made the following order:
1.
The respondent is ordered to deliver its
outstanding Rule 36(9)(b) expert summaries/reports in respect of the
occupational and industrial
psychologists for which it gave notice
for in terms of Rule 36(9)(a) on or before 25 May 2020.
2.
The respondent shall not be entitled to
call as witnesses any person to give evidence as an expert in respect
of whom an expert
summary/report in terms of Rule 36(9)(b) has not
been delivered by 25 May 2020, unless a court of competent
jurisdiction, on good
cause shown, otherwise directs or the applicant
agrees to the calling of such expert witness.
3.
The parties shall obtain joint minutes
between all overlapping expert witnesses, on the basis of such expert
reports which have
been timeously
delivered by no later than 25
May 2020, which joint minutes shall be delivered by no later than 27
May 2020, or such date as a court
of competent jurisdiction, on good
cause shown, may direct .
4.
The applicant is granted leave to
re-apply for a case management meeting for purposes of obtaining a
certificate of trial readiness,
which case management meeting may not
be prior to 28 May 2020.
5.
The respondent shall pay the costs of
this application.
[20]
In
Segopotso
v RAF
[9]
the applicant sought an order compelling the respondent to comply
with the applicant’s rule 36(9)(b) notice. The relief
sought is nonsensical. Upon a perusal of the affidavit it
became clear that the applicant wanted the court to order the
respondent, as the respondent had caused the plaintiff to submit to
medical examinations, to file the reports of those experts in
terms
of rule 36(9)(a). For obvious reasons I cannot compel the
respondent as to whom they wish to call as a witness.
I raised
this concern with the applicant’s legal representative.
In response it was indicated that the application
is to be removed
from the roll for the applicant to pursue its remedies in terms of
Rule 30A. In the premises I made the
following order:
1.
The
application is removed from the roll.
2.
No order
as to costs.
[21]
In
Nyide
v RAF
[10]
the
plaintiff sought to be provided, in terms of Rule 36(8) with the
reports of two medical practitioners to whom the plaintiff
submitted
to medical examinations for in terms of Rule 36(1). In addition
thereto the plaintiff sought an order that joint
minutes must be
obtained
in respect of all the experts that overlapped by virtue) of the Rule
36(1) examinations. However, the defendant has not given
any
indication, in terms of Rule 36(9)(a), that it intends to call either
of these as expert witnesses I see no reason why
the defendant
should, taking into consideration that public money is involved, be
put to the expense of having experts attend to
joint minutes where
there is no indication that those experts will be utilized at trial
by the defendant. The plaintiff,
upon me raising the latter
aspect as a query, abandoned such relief. No amendment to the
relief prayed for was sought in
order to put the defendant on terms
to make an election whether it intends to call either or any of the
two experts as witnesses.
In the premises I made the following
order:
1.
The respondent
is ordered, in terms of Rule 36(8), to furnish to the applicant with
the reports of the occupational therapist, M
Magoele, and the
industrial psychologist, L Marais, within 5 (FIVE) days from the date
of service of this order on the respondent’s
attorneys of
record;
2.
The respondent
is ordered, in terms of rule 35(7), to furnish the applicant with its
discovery affidavit within 5 (FIVE) days from
the date of service of
this order on the respondent’s attorneys of record, provided
that should the defendant be unable to
depose to a discovery
affidavit due to the closure of its offices in terms of any lockdown
regulations, the discovery affidavit
shall be delivered within 5
(FIVE) days of the defendant’s offices officially reopening;
3.
The respondent
is to pay the costs of the application.
[22]
In the
Harding
v RAF
[11]
the same issue arose as in the
Nyide
-matter.
In the premises I made the following order:
1.
The respondent
is ordered, in terms of Rule 36(8), to furnish to the applicant the
reports of the orthopedic surgeon, Dr Mushwana,
the occupational
therapist, P Chiloane, and the industrial psychologist, Dr N
Runguqu-Mshumpela, within 5 (FIVE) days from the
date of service of
this order on the respondent’s attorneys of record;
2.
The respondent
is to pay the costs of the application.
[23]
In
Moss
v RAF
[12]
the same issue arose as in the
Nyide
-matter.
In the premises I made the following order:
1.
The respondent
is ordered, in terms of Rule 36(8), to furnish to the applicant the
reports of the orthopedic surgeon, Dr Vlok, the
occupational
therapist, Dr Rice, and the industrial psychologist, Dr Martiz,
within 5 (FIVE) days from the date of service of this
order on the
respondent’s attorneys of record;
2.
The respondent
is to pay the costs of the application.
[24]
In
Makhapela
v RAF
[13]
and in
Koalane
v RAF
[14]
the applicants sought an order compelling respondent to appoint
medical experts in terms of Rule 36(1). As already indicated,
I
have no such power in law. Further relief was sought to place
the respondent on terms,
assuming
the success of the first order of relief sought,
to
deliver the expert reports within 15 days of the assessments having
been done. No case was made out, or even advanced,
why the
normal time period as allowed for in Rule 36(8)(a) should not be
allowed. In any event, in light of the fact that
the first part
of the order being sought could not be granted, the second part of
the order can also not be granted. In the
premises I made the
following order in both the aforesaid matters:
1.
The
application is dismissed.
2.
There is no
order as to costs.
[25]
In
More
v RAF
[15]
the applicant sought an order compelling the respondent to indicate,
within 5 days, whether it intends to appoint experts and,
if the
defendant so intends, to appoint its experts within 10 days of having
so indicated its intention. The respondent has
since indicated
that it does intend to appoint experts in this matter. In
the premises I made the following order:
1.
The
respondent, having indicated that it intends to appoint experts in
this matter, is hereby ordered to appoint such experts
it
intends to by
delivering its Rule 36(9)(a) notices within 15-days of the granting
of this order.
2.
Should the
respondent fail to appoint experts, or any one particular expert,
within the time period prescribed in paragraph 1 hereof,
the
respondent is barred from doing so unless a court of competent
jurisdiction, on good cause shown, otherwise permits or unless
the
applicant consents thereto;
3.
The respondent
is to pay the costs of the application.
_____________________________________
CE
THOMPSON
ACTING
JUDGE OF THE HIGH COURT JOHANNESBURG
Heard
on: 21 May 2020
Delivered
on: 29 June 2020 electronically, by e-mail
2018/44046
On
behalf of the Applicant: Mr Daniel Coetzee
Nemevhulani
Attorneys Inc
Attorney
for the Respondent: T J Maodi Inc
2012/13337
On
behalf of the Applicant: C
h Oguike Attorneys
Attorney
for the Respondent: Pule Incorporated
2017/32542
On
behalf of the Applicant: Adv Bd Molojoa
Attorney
for the Applicant: A Wolmarans Inc.
Attorney
for the Respondent: Duduzile Hlebela Inc.
2018/36275
On
behalf of the Applicant: Adv Bd Molojoa
Attorney
for the Plaintiff: A Wolmarans Inc
Attorney
for the Respondent: Maluleke Msimang &
Associates
2019/16443
On
behalf of the Applicant: Adv Bd Molojoa
Attorney
for the Plaintiff: A Wolmarans Inc
Attorney
for the Respondent: Shereen Meersingh & Associates
2019/1055
On
behalf of the Applicant: Adv Bd Molojoa
Attorney
for the Plaintiff: A Wolmarans Inc.
On
behalf of the Respondent: Adv. F Koko
Attorney
for the Respondent: Nozuko Nxusana Inc
2017/33700
On
behalf of the Applicant: Adv Bd Molojoa
Attorney
for the Plaintiff: A Wolmarans Inc
2019/6814
On
behalf of the Applicant:
Attorney
for the Plaintiff: De Broglio Attorneys Inc
Attorney
for the Respondent: Borman Duma Zitha
[1]
2
of 2019
[2]
“
Any
party to any action
may
require any other party thereto, by notice in writing
,
to make discovery on oath within twenty days of all documents and
tape recordings relating to any matter in question in such
action
(whether such matter is one arising between the party requiring
discovery and the party required to make discovery or
not) which are
or have at any time been in the possession or control of such other
party. Such notice shall not, save with the
leave of a judge, be
given before the close of pleadings.
”
[
emphasis
added
]
[3]
“
A
party
who
receives notice
of the trial date of an action shall, if such party has not yet made
discovery in terms of rule 35, within 5 days deliver
a sworn
statement which complies with rule 35(2).
”
[
emphasis
added
]
[4]
“
Every
party to an action who receives notice of the trial date shall
forthwith, and in any event not later than seven days after
receipt
of such a notice, give notice in writing to every other party or his
or her attorney of the date which was allocated
by the registrar for
the hearing: Provided that the party receiving notice from the
registrar need not give such notice to a
party who is represented by
the same attorney as the party who is so obliged to give notice.”
“
(1)
A
party
to proceedings, in which damages or compensation in respect of
alleged bodily injury is claimed, shall have the right to
require
any party claiming such damage or compensation, whose state of
health is relevant for the determination thereof, to submit
to a
medical examination.
(2)
(a) A party requiring another party to submit to a medical
examination shall deliver a notice to
such
other party that—
(i)
specifies the nature of the
examination required;
(ii)
specifies the person or persons who shall conduct the examination;
(iii)
specifies the place where and the date (being not less than 15 days
from the date of such notice) and time when it is desired
that the
examination shall take place; and
(iv)
requires the other party to submit himself or herself for the
medical examination at the specified place, date, and time.
.
. .
(8)
Any party causing an examination to be made in terms of subrules (1)
and (6) shall—
(a)
cause the person making the examination to give a full report in
writing, within two months of the date of the examination
or within
such other period as may be directed by a judge in terms of
rule 37(8) or in terms of rule 37A, of the results
of the
examination and the opinions that such person formed as a result
thereof on any relevant matter;
(b)
within five days after receipt of such report, inform all other
parties in writing of the existence of the report, and upon
request
immediately furnish any other party with a complete copy thereof and
(c)
bear the expense of the carrying out of any such examination:
Provided that such expense shall form part of such party’s
costs.
(9)
No person shall, save with the leave of the court or the consent of
all parties to the suit, be entitled to call as a witness
any person
to give evidence as an expert upon any matter upon which the
evidence of expert witnesses may be received unless—
(a)
where the plaintiff intends to call an expert, the plaintiff shall
not more than 30 days after the close of pleadings, or
where the
defendant intends to call the expert, the defendant shall not more
than 60 days after the close of pleadings, have
delivered notice of
intention to call such expert; and
(b)
in the case of the plaintiff not more than 90 days after the close
of pleadings and in the case of the defendant not more
than 120 days
after the close of pleadings, such plaintiff or defendant shall have
delivered a summary of the expert’s
opinion and the reasons
therefor:
Provided
that the notice and summary shall in any event be delivered before a
first case management conference held in terms of
rules 37A(6) and
(7) or as directed by a case management judge.
(9A)
The parties shall—
(a)
endeavour, as far as possible, to appoint a single joint expert on
any one or more or all issues in the case; and
(b)
file a joint minute of experts relating to the same area of
expertise within 20 days of the date of the last filing of such
expert reports.
.
. .”
[6]
See generally
Doyle
v Sentraboer (Cooperative) Limited
1993
(3) SA 176
(SECLD) at 180G
“
Rule
36(9) is a limitation on the right of litigants to
call
whoever they choose
as
witnesses. Normally a party does not know
what
witnesses the other party is going to call
,
or what such witnesses are going to say.
He
must prepare as best he can by assembling his own witnesses
to deal with the issues raised on the pleadings. There are
other provisions of Rule 36. . .whcih assist a part in preparing
for
trial. Moreover a party is not required to inform his opponent
who his witnesses are. . .”
[emphasis added]
[7]
“
Notwithstanding
the aforegoing subrules, interlocutory and other applications
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require and set down at a time
assigned by the registrar or as directed
by a judge.”
[8]
2019/7093
[9]
2012/13337
[10]
2017/32542
[11]
2018/36275
[12]
2019/16443
[13]
2019/1055
[14]
2017/33700
[15]
2019/6814