Summary of Judgment

1. Introduction

This judgment concerns an interlocutory practice-and-procedure application in a pending civil action, specifically an application at common law for leave to re-open the plaintiff’s case in order to adduce further expert evidence after the close of evidence.

The parties are the plaintiff, cited as P E (on behalf of L E), and the defendant, the Member of the Executive Council for Health of the Gauteng Province.

In the procedural history described by the court, the evidence in the main action was completed on 23 January 2019, after which the matter was postponed sine die for the presentation of closing arguments. The parties indicated that a transcript would be obtained to assist with the preparation of heads of argument and closing submissions. At the time of this application, closing submissions had not yet been presented, although the court was advised that the transcript had by then been produced. Against that background, the plaintiff brought the present application (during January 2020, with the application heard on 8 October 2020 and judgment delivered on 9 October 2020) to adduce additional expert evidence.

The general subject-matter of the dispute in this interlocutory application is whether the plaintiff should be permitted, after closing her case, to lead the evidence of an additional expert witness, a radiologist (Dr B Alheit), in order to address perceived potential shortcomings (particularly relating to causation) in the case previously presented.

2. Material Facts

The court treated as materially established that the trial evidence in the main action had been fully led and completed on 23 January 2019. The matter had thereafter not proceeded to closing argument and had been postponed sine die for that purpose. The court also accepted as a relevant contextual fact that the parties had indicated the need for a transcript and that, as conveyed from the bar at the hearing of this application, the transcript had by then been produced.

It was further common cause, for purposes of the interlocutory application, that the plaintiff sought leave to re-open her case in order to lead additional expert evidence from Dr B Alheit, a radiologist. The plaintiff’s stated motivation was that, after certain judgments delivered during 2019 in the High Court and Supreme Court of Appeal (in matters said to be similar to the plaintiff’s), she considered it prudent to address issues that had resulted in other claimants failing on the basis that causation had not been proved.

The plaintiff provided an explanation for the timing of the application through her attorney, Mr Du Plessis, namely that the relevant judgments prompting the reconsideration were delivered during 2019, after which the matter was referred to Dr Alheit for an opinion dealing with issues raised in those judgments, and that this accounted for the application only being brought in January 2020.

The defendant opposed the application on the basis, among other things, that the proposed evidence lacked materiality and that, in any event, Dr Alheit’s evidence would be rejected, relying on a judgment by Kruger J in Zodwa Shange v MEC for Health for the Province of KZN (case no. 9019/207P, delivered 5 December 2019), in which the evidence of the same proposed expert (Dr Alheit) had been rejected, including on the basis that he allegedly did not possess the necessary expertise for the evidence he was intended to give in that matter. The defendant also contended that the plaintiff’s stated rationale of acting “out of an abundance of caution and in the best interests” of her case did not constitute a proper ground to permit further evidence.

A further fact considered material by the court in its evaluation of the application was that the claim is brought on behalf of a minor child, described as severely handicapped, which the court treated as heightening the importance of ensuring that all relevant evidence is placed before the court.

3. Legal Issues

The central legal question was whether the plaintiff had shown sufficient grounds, under the common law principles governing the admission of further evidence, to justify an order granting leave to re-open the case and adduce the further expert evidence of Dr Alheit after the close of evidence but before final judgment.

Closely connected to that primary question were subsidiary questions concerning the application of law to fact and the exercise of a procedural discretion/value judgment, including whether the plaintiff had provided an acceptable explanation for not leading the evidence timeously, whether the proposed evidence was sufficiently material to warrant reopening, whether there was a risk that the new evidence might be shaped to meet weaknesses exposed by the earlier evidence, how prejudice should be balanced between the parties, and how the need for finality in litigation should be weighed given the stage reached in the proceedings.

A further procedural issue arose as to whether the plaintiff should be granted leave to file the required expert notice and summary contemplated in Uniform Rule of Court 36(9)(a) and (b) in relation to Dr Alheit.

4. Court’s Reasoning

The court approached the matter by applying the established considerations governing applications to admit further evidence, as set out in Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C), which in turn relied on Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A) and Barclays B Western Bank Ltd v Gunas and Another 1981 (3) SA 91 (D). The court identified the relevant factors as including the explanation for the delay, the materiality of the evidence, the risk of tailoring evidence to “relieve the pinch of the shoe”, the balance of prejudice, the stage of litigation, the role of costs as a potential “healing balm”, the need for finality, and whether it is appropriate to visit attorney fault on the client.

On the reason for lateness, the court accepted the explanation given by the plaintiff’s attorney that the impetus for the further evidence arose from judgments delivered during 2019 and that the matter was thereafter referred to Dr Alheit for an opinion addressing issues emerging from those decisions. The court characterised this explanation as reasonable in the circumstances. In addition, the court expressly considered the high stakes for the plaintiff, given that the litigant is a minor child described as severely handicapped, and treated that context as relevant to evaluating the procedural indulgence sought.

On the materiality consideration, the court drew a distinction between the threshold enquiry at the admission stage and the eventual merits assessment in the main action. It held that it was not appropriate, at the stage of deciding whether to admit the evidence, to pre-judge the value or ultimate weight of Dr Alheit’s testimony. The court addressed the defendant’s reliance on Zodwa Shange v MEC for Health for the Province of KZN by indicating that the outcome in that matter did not justify a prior rejection of Dr Alheit’s evidence in this matter, because the relevance and admissibility of expert testimony would depend on the evidence and issues in the particular case.

In weighing the application overall, the court considered the set of factors cumulatively and concluded that leave should be granted. A prominent evaluative consideration was the court’s view that, because the claim is pursued on behalf of a minor child, it would be “innately iniquitous” if all relevant evidence were not placed before the court to ensure that justice is done in respect of the child’s claim. This consideration informed the court’s discretionary assessment of fairness and the balance of prejudice.

On costs, the court accepted the plaintiff’s submission that the costs of the interlocutory application should be reserved for determination by the eventual trial court. The court reasoned that the trial court would be better placed to assess the necessity of the application in light of how the additional evidence ultimately impacts the main proceedings.

5. Outcome and Relief

The court granted the plaintiff leave to re-open her case and to adduce further expert evidence from Dr B Alheit, a radiologist.

The court also granted the plaintiff leave to file the requisite expert notice and summary in terms of Uniform Rule of Court 36(9)(a) and (b) in relation to Dr Alheit’s proposed testimony.

The costs of the application were reserved for decision by the trial court.

Cases Cited

Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C).

Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A).

Barclays B Western Bank Ltd v Gunas and Another 1981 (3) SA 91 (D).

Zodwa Shange v MEC for Health for the Province of KZN (Case No. 9019/207P, KwaZulu-Natal High Court, 5 December 2019).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 36(9)(a).

Uniform Rules of Court, Rule 36(9)(b).

Held

The court held that, applying the established common-law considerations relevant to reopening a case to adduce further evidence, the plaintiff provided an adequate explanation for the timing of the application, and the proposed evidence should not be pre-judged or excluded merely because the same expert’s evidence had been rejected in another matter. Having regard to the circumstances, including that the claim is pursued on behalf of a minor child, the court exercised its discretion in favour of allowing the plaintiff to re-open her case to lead the additional radiological expert evidence. The plaintiff was permitted to deliver the associated expert notice and summary under Rule 36(9), and the costs of the application were reserved for the trial court.

LEGAL PRINCIPLES

The judgment applied the principle that an application to lead further evidence after the close of a party’s case is governed by a discretionary, multi-factor enquiry that includes the explanation for the failure to lead the evidence timeously, the materiality of the evidence, the possibility that the evidence is being tailored to cure weaknesses exposed by the trial, the balance of prejudice between the parties, and the stage reached in the litigation, including the increased emphasis on finality once a matter is ripe for argument.

The judgment further applied the principle that, at the stage of deciding whether to admit further evidence, a court should not ordinarily pre-determine the ultimate weight, credibility, or decisive effect of the evidence sought to be introduced; those are matters for the trial court’s final assessment in the context of the whole case.

The judgment also illustrates that where the litigation concerns a claim pursued on behalf of a minor, considerations of fairness and the interests of justice may weigh strongly in favour of ensuring that all relevant evidence is placed before the court, provided that the recognised requirements for reopening are satisfied and the overall balance of prejudice and the need for finality are properly weighed.

Finally, the judgment reflects the procedural principle that, where the necessity and impact of an interlocutory step will be clearer once the trial court considers the full evidentiary picture, it may be appropriate to reserve costs for determination by the trial court.