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[2016] ZAECPEHC 59
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Pumeza Bono Inc and Another v L and Others; In Re: L v Nyorka and Another (1661/2014) [2016] ZAECPEHC 59 (22 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 1661/2014
In
the application between:
PUMEZA
BONO
INC
First
Applicant
MARINDA
VELDSMAN N.O.
Second
Applicant
and
B.
S.
L.
First
Respondent
DR
J KWASI
NYORKA
Second
Respondent
LIFE
MERCANTILE HOSPITAL (PTY) LTD
Third
Respondent
In
re:
B.
S.
L.
Plaintiff
and
DR
J KWASI
NYORKA
First
Defendant
LIFE
MERCANTILE HOSPITAL (PTY) LIMITED
Second
Defendant
JUDGMENT
REVELAS
J
:
[1]
In
this case, which has a long history marked by numerous postponements,
there are two matters requiring determination. The
first is an
exception and the second is an application brought by an attorney and
an advocate seeking leave to withdraw as the
legal representatives of
the plaintiff, Mr B. S. L.. He is cited as the first respondent
in the exception and the application
for leave to withdraw.
I shall refer to him as the plaintiff herein. The second and
third respondents are the
two defendants in the action instituted by
the plaintiff which is the subject of this judgment. I
shall refer to the
first and second respondents as the defendants.
It is on the second defendant’s behalf that the exception was
noted.
[2]
It
is common cause that the plaintiff underwent surgery at the
Mercantile Hospital (the premises of the second defendant) on 3 June
2011. The surgery performed was a transurethral resection
of the prostrate, to alleviate the condition diagnosed as
benign
prostatic hyperplasia. The surgery was performed by the first
defendant. The plaintiff was discharged
on 4 June 2011.
[3]
During
August 2011, the plaintiff visited another urologist, who allegedly
concluded that during the operation in question, the
plaintiff’s
“
reproductive
system was damaged”
in
that he had blood in his urine and he was “
sterile”
.
[4]
The
attorneys initially engaged by the plaintiff to prosecute his claim
for damages based on negligence, did not serve him well.
Summons was nonetheless issued on 28 May 2014. On 24 March 2015
Makaula J appointed the plaintiff’s present attorneys
of record
and counsel to act on his behalf,
pro
bono
.
They reported that neither the urologist who suggested
that the plaintiff’s reproductive system was damaged
during the
surgical operation, nor any other medical practitioner who examined
the plaintiff, was prepared to give evidence in
support of a claim
based on negligence against the defendants.
[5]
On
13 October 2014 the plaintiff’s first attorneys withdrew.
On 26 May 2015 Goosen J upheld the second defendant’s
first
exception to the plaintiff’s particulars of claim, but granted
the plaintiff leave to cure the deficiencies in his
particulars of
claim within ten days. On 28 August 2015 the plaintiff
filed its amended particulars of claim.
[6]
On
20 October 2015, the second defendant noted a second exception to the
amended particulars of claim on the basis that the amended
particulars of claim were vague and embarrassing.
[7]
The
second defendant raised nine grounds of complaint in its notice of
exception. I do not intend to deal with any of the
grounds in
detail save to state that they lack material particularity such as
the nature of the plaintiff’s injuries or physical
cause of
complaint. General damages and past loss of medical expenses
which are relatively easy to compute, are not set out
in any
detail. The particulars of claim clearly do not comply
with Rule 18(10) of the Uniform Rules of Court.
That much
has been properly conceded by counsel for the plaintiff.
Due to a lack of evidence to support the plaintiff’s
claim no
more particularity can be provided. Hence the defects in
the particulars of claim as they currently stand,
are not capable of
being cured.
[8]
The
plaintiff appeared in person. Upon questioning him it emerged
that he had not been successful in persuading any of the
several
medical practitioners and urologists who were contacted, to give
evidence which would support his claim against the defendants.
He has also expressed his misgivings about finding a new doctor and
pursuing his claim as matters stand. In my view, no further
purpose would be served by a further postponement in this matter.
[9]
On
the information before me I am satisfied that the plaintiff’s
attorney and counsel, despite their best endeavours, are
not able to
proceed with the matter in good conscience based on the sparse
evidence available.
[10]
Accordingly
the following order is made:
(a)
The
second defendant’s exception filed on 16 November 2015 is
hereby upheld;
(b)
The
plaintiff’s claim is struck out with costs;
(c)
The
first and second applicants are granted leave to withdraw as the
plaintiff’s attorneys of record;
(d)
The
address for service on the plaintiff in all future process and
notices in this matter under case no. 1661/2014 shall be his
last
known address, namely: 42 Eileen Drive, Blue Water Bay, Port
Elizabeth.
____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the applicant and first respondent, Adv M Veldsman instructed by
Pumeza Bono Inc, Port Elizabeth
For
the first respondent, in person
For
the second respondent, BLC Attorneys, Port Elizabeth
For
the third respondent, Adv I Bands instructed by Whalley & Van Der
Lith Inc c/o Friedman & Scheckter Inc
Date
heard: 20 September 2016
Date
delivered: 22 September 2016