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[2023] ZAGPJHC 1063
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Seneca Civils (Pty) Ltd v Centriq Insurance Company Ltd (2016/12450) [2023] ZAGPJHC 1063 (22 September 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NUMBER:
2016/12450
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In
the matter between:
SENECA
CIVILS (PTY) LTD
Plaintiff
and
CENTRIQ
INSURANCE COMPANY LTD
Defendant
WRITTEN REASONS
MALUNGANA AJ
[1]
Pursuant to an interlocutory application
brought by the plaintiff which came before me on 17 April 2023, I
granted an order for
the plaintiff in the following terms:
(a)
directing the defendant to cause its expert, Mr Peter Banbury to sign
the joint expert’ minute sent on 21 February
2020,
alternatively
(b) to produce his
own minutes of what transpired at the joint meeting on 21 February
2020.
(c) directing that
in the event that the defendant fails to comply with the above, then
the plaintiff is granted leave to
re-enrol this application,
supplemented to the extent required, to seek further relief,
including that the defendant’s defence
be struck out with
costs.
[2]
I have been requested to provide reasons
for the aforesaid order. Accordingly, the following reasons are
hereby provided.
[3]
The
plaintiff’s application was predicated upon the refusal by the
respondent’s expert, Peter Banbury, to sign the draft
minute
prepared by the plaintiff’s expert, Sandro Scherf, arising from
the meeting held between the said experts on
21 February 2021.
[1]
[4]
I
pause to point out that it was not in dispute that the relevant
experts held a meeting on 21 February 2021.
[2]
What
was apparently in dispute was the contents of the draft minute. The
defendant contended that the draft minute did not correctly
reflect
what had been agreed upon at the meeting of the experts. In the
affidavit deposed to by Mr. Andrew Boerner, the defendant’s
attorney, it was alleged that during the said meeting Sandro Scherf
undertook to provide the defendant’s expert with certain
documentation and had since failed to comply with his undertaking
(para. 15). The defendant further alleged that in light
of the
delay in pursuing the matter, the defendant wrote an email to the
plaintiff on 03 February 2021 in which it suggested that
another
meeting of the experts be convened. Instead, the plaintiff’s
attorney put the defendant’s attorneys on terms
that it would
launch the current application if the defendant did not furnish its
comments by the 5
th
of November 2021.
[5]
By contrast the plaintiff contended that
the respondent’s failure to sign the minute, alternatively
furnish a comment thereto
was hampering its ability to approach the
Registrar of the Court for certification.
[6]
Before dealing with the issue whether there
is substance in the defendant’s refusal to sign the minute, it
is necessary to
examine the relevant provisions of the Judge
President’s Directives. Paragraph 41 of the Revised Directive 1
of 2021 provides
that:
“
Any
party who, having reasons to be aggrieved by the other party’s
neglect, dilatoriness, failure or refused to comply with
any Rule of
Court, provisions of the Practice Manual or provision of the
Directive must utilize the Interlocutory Court to compel
compliance
from the delinquent party.”
[7]
Mr
Stevens for the defendant submitted in his written heads of
argument
[3]
under
paragraph 3.2 as follows:
“
The
Respondent has opposed the application on the basis that the
Respondent’s expert is in disagreement with the correctness
of
the contents of the expert minute and is further of the view that the
meeting held by the experts was incomplete as a result
of the
failure of the Applicant’s expert to provide documentation at
the meeting. The Respondent’s expert has requested
a second
meeting of the experts together with the documentation initially
agreed to be provided.”
[8]
With all respect to Mr Stevens I find his
argument in this regard highly fallacious. To my mind the parties do
not necessarily have
to agree on every aspect canvassed at the
meeting in order to execute the minute. They can record their
opposing views in the
minute, even if there are outstanding issues.
As long as the issues are defined according to their perspectives.
[9]
During the course of argument, I was
referred to the practice manual of this Court relied upon by counsel
for the plaintiff. I shall
now examine this question more closely in
the context of the practice manual.
[10]
As set out in Chapter 6 of the Practice
Manual, in particular paragraph 6.5 thereof:
“
5.
In all trials in which the parties have opposing expert
witness, such opposing expert witnesses must meet and reduce their
agreements and disagreements to writing in joint expert minutes,
signed by them and which minutes must be compliant with the
prescripts
of paragraph 6.15.11 of this manual.”
[11]
In
the circumstances, and having regard to the provisions of the new
Rule 36(9A)
[4]
of
the Uniform Rules I conclude that there is no legal nor factual
foundation upon which the defendant can refuse to sign the draft
minute or furnish his own minute. The parties have attended a
meeting and have reached certain consensus that ought to be reduced
to writing. It terms of the contention that the plaintiff’s
expert was supposed to furnish the defendant’s expert with
particular documents that can be recorded in a minute. It is no bar
to concluding the joint minute. If parties were allowed not
to file
minute of the meeting on the grounds advanced by the defendant, that
would have dire consequences on the case management
process.
[12] In the result I
granted the order as follows:
1.
Within 10 days of the order, the defendant is directed to
cause its expert, Mr Peter Banbury, to:
1.1.
Sign the joint expert’s minute sent to the Defendant by
the Plaintiff on 21 February 2020; or
1.2.
Produce his own minute of what occurred at the joint expert’s
meeting of 21 February 2020.
2.
Directing that in the event that the Defendant fails to comply
with paragraph 1, then the Plaintiff is granted to leave to re-enrol
this application, supplemented to the extent required, to seek
further relief, including that the Defendant’s Plea be
struck-out
with costs.
3.
The Defendant is to pay the costs of this application on an
attorney and client scale.
P.H. MALUNGANA
Acting Judge of
the High Court
Gauteng Division,
Johannesburg
Heard
:
17 April 2023
Ex Tempore
Judgment:
17 April 2023
Written Reasons
Requested:
09 May 2023
Written Reasons
Delivered
: 22 September 2023
Appearances
For
Plaintiff
:
D
Watson
Instructed
by
:
Tugendhaft
Wapnick Banchetti & Partners
For
Defendant
:
BD
Stevens
Instructed
by
:
Jurgens
Bekker Attorneys
[1]
Draft
Joint
Minutes between Sandro Scherf and Peter Banbury on 21. February
2020.CaseLines 11-32
[2]
Defendant’s
Answering Affidavit, para.15. Case Lines 12-10
[3]
Respondent’s
Heads of Argument. Case Lines 26-4
[4]
Rule 36(9A) provides: “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 report.”