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[2023] ZAFSHC 14
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M.N.G obo R.V.M v Member of the Executive Council for Health, Free State Province (2399/2017) [2023] ZAFSHC 14 (26 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2399/2017
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
IN
THE MATTER BETWEEN:
M
[....] N [....] G [....]
OBO
R [....] V [....] M [....]
Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, FREE STATE PROVINCE
Respondent
JUDGMENT
BY:
MPAMA, AJ
DATE
HEARD:
13
OCTOBER 2022
DELIVERED
ON:
The judgment
was handed down electronically by circulation to the parties’
legal representatives by email and release to SAFLII
on 26 January
2023. The date and time for hand-down is deemed to be 26 January 2023
at 11h00.
[1]
This is an application in terms of Rule 21 of the
Uniform Rules for the respondent to furnish the applicant
with proper
and complete reply to her request for further particulars.
[2]
In the main action, the parties are embroiled in a legal
battle since 2017 when the applicant instituted proceedings
against
the respondent for the payment of damages arising from the
respondent’s failure to provide adequate medical care
to the
applicant and her child in respondent’s hospital, resulting in
the applicant’s child suffering from cerebral
palsy.
[3]
The respondent amended its plea. On its amended
plea the respondent pleaded, inter alia, that the State health
facilities are able to, will attend to and provide the minor child
with whatever medical, associated services and items the minor
child
will require at the same standard at least as those sourced from
private health care provider. Furthermore, that it intends
to request
the court to develop the common law in order to make provision for an
order that the respondent be ordered to supply
and provide future
medical interventions as well as items related thereto.
[4]
The aforesaid, amendment prompted the applicant to file a request for
further particulars for trial on 28
April 2021. A response was filed
by the respondent on 1 October 2021. On 22 June 2022, the applicant
dissatisfied by the response
from the respondent filed an application
to compel the respondent to provide her with proper and complete
reply to her request
for further particulars.
[5]
The application is opposed by the respondent on
the basis that the respondent has adequately responded to
the request
and the particulars being requested by the applicant are not
necessary for the purposes of preparing for trial.
[6]
Rule 21(2) and (4) of the Uniform Court Rules provides:
“
(2) After the
close of pleadings any party may, not less than 20 days before trial,
deliver a notice requesting only such further
particulars as are
strictly necessary to enable him to prepare for trial. Such request
shall be complied with within ten days of
receipt thereof.”
”
(4) If the party
requested to furnish any particulars as aforesaid fails to deliver
them timeously or sufficiently, the party requesting
the same may
apply to court for an order for their delivery or for the dismissal
of the action or the striking out of the defence,
whereupon the court
may make such order as to it seems meet.”
[7]
The purpose served by further particulars for trial has been stated
as follows in the matter of
VISSER N.O and OTHERS v VAN NIEKERK
and OTHERS
[2021] ZAFSHC 187
at para 23:
“
(a)
to prevent surprise
(b)
that the parties should be told with greater precision what the other
party is going to prove to enable his
opponent to prepare his case to
combat counter allegations and
(c)
having regard to the above nevertheless not to tie the other party
down and limit his case unfairly at the
trial.” (Footnote
omitted)
[8]
A party is not entitled to elicit details of evidence
that would be canvassed at trial as this could be construed
as abuse
of process.
[9]
Again in
VISSER N.O and OTHERS v VAN NIEKERK and OTHERS
in an application of a similar nature the following was said at para
23:
“…
It should
not be allowed to become a so–called fishing expedition whereby
a party attempts to obtain all that he can from
his opponent prior
trial and so force his opponent to play all his or her cards
beforehand. Trials are adversarial by nature and
no party is entitled
to every piece of evidentiary information which his opponent intends
to utilise at trial”.
[10]
It is so that a party cannot be required to give
particulars in relation to a mere denial. See
RUSLYN MINING &
PLANT HIRE (PTY) LTD v ALEXKOR LTD
[2012] 1 ALL SA 317(SCA).
[11]
The applicant filed a lengthy request for further
particulars. I do not intend to overburden this judgment
by repeating
the particulars requested by the applicant and the respondent’s
response to the request. Generally, the applicant
on its request for
particulars requires the respondent to provide particulars or
specific details as to how it intends to treat
and offer support to
the applicant’s child and to disclose the nature of resources
it has to support children with a condition
like the applicant’s
child. To give an indication as to the nature of further particulars
requested I quote paras 3 and 4
of the request of further
particulars:
“
[3]
Insofar as the defendant contends that the Free State Province
Department of Health (or
other provinces) is in a position to render
and will render and tenders to the minor medical services in the
future, the defendant
is required to state:
3.1 The
identity of each one of the State health facilities by name including
hospitals and clinics that can provide
the services and items to be
purchased;
3.2 The
location of each of the State health facilities
3.3 With
specific reference to each one of the state health facilities, which
the defendant has identified as aforementioned:
3.3.1
Whether it is equipped to provide, render and supply medical and
related services and
items required to treat, care and manage
specifically cerebral palsy patients. Copies of all protocols are
required.
3.3.2
Which systems, procedures and protocols, if any, are in place and
available to treat,
care for and manage specifically cerebral palsy
patients?
3.3.3.
How many cerebral palsy patients have been treated, cared for and
provided with medical services
and items over the past five (5)
years?”
“
[4]
4. In light of the aforesaid, the defendant is required to state,
with reference to each
and every one of such health facilities which
the defendant intends to rely on in respect of allegation in its
plea, with full
and particularity:
4.1
Whether the medical care, treatment and services provided,
specifically cater for cerebral palsy patients:
4.1.1 Whether the
following medical care, treatment and services are provided
specifically catering for cerebral palsy patients:
4.1.1.1
Paediatric neurological treatment;
4.1.1.2
Neurological treatment;
4.1.1.3
Neuropsychological treatment
4.1.1.4
Psychiatric and/or psychological treatment
4.1.1.5
Optometric therapy;
4.1.1.6
Audiological treatment;
4.1.1.7
Speech therapy”.
[12]
The respondent on its reply (belated reply) to the
request responded by filing some affidavits from the
doctors
responsible for treatment of children with cerebral palsy and
attached protocols at place for the treatment of these patients.
As a
way of illustration this is how they responded to the aforementioned
request for further particulars:
“
Ad Para 3
3.1 The
Universitas Academic Hospital and Pelonomi Tertiary Hospital referred
to as the Pelonomi/ Universitas Hub.
3.2
Bloemfontein
3.3 In
respect of this sub-paragraph, the defendant replies as follows:
3.3.1
Yes. The balance of the enquiry is too vague to respond to
meaningfully
3.3.2
The defendant refers the plaintiff to-
3.3.2.1 The expert
reports of the healthcare practitioners from the two hospitals
referred to that have been filed by the defendant;
and
3.3.2.2 The treatment
plan which was devised for R [....], annexure LP7 to the affidavit of
Louise Peens in the application for
an interim payment; and”.
“
Ad Para 4
4.1 Yes
4.1.1
Yes, the medical care, treatment and services are provided at one or
the other of
the two hospitals to the extent set out in the various
medical reports filed of record by the defendants medical experts and
in
the affidavits put up by the defendant‘s medical experts and
in the affidavits put up by the defendant in the application
for an
interim payment.”
[13]
Before me it was argued that the responses offered
by the respondent were inadequate. In addition the applicant
lambasted the manner in which the respondent responded to the
request. It was argued by the applicant that a request for further
particulars was a pleading, the format in which the respondent
responded falls short of a pleading and does not comply with the
court’s rules. On an affidavit filed in support of this
application the following is said at para 11.3:
“
It is with respect
humbly submitted that it cannot be expected of the applicant to delve
through expert reports and affidavits and
annexures thereto in other
legal proceedings to ascertain what the respondent’s case is
and to prepare for it. By the very
nature of these reports they
contain opinions. There is no reason why the respondent cannot
properly reply fully to these requests………
The
particulars requested are in general terms in respect of cerebral
palsy patients and not specifically what the respondent plans
to do
in respect of this specific patient.”
The
same averments are repeated in paras 13 and 18 of the applicant’s
affidavit; that the applicant cannot be obliged to trawl
through the
various medico legal reports furnished by the respondent.
[14]
The respondent’s counsel contended that it
was incorrect that a request for further particulars is
a pleading.
In amplification, respondent’s counsel argued that the rules
are clear that this request is made after the close
of pleadings and
therefore not a pleading. Respondent’s counsel in addition
argued that whether it is a pleading or not they
have adequately
responded to the request and were even over-generous by providing
particulars that were not necessary for the preparation
of trial.
[15]
Firstly, request for further particulars for trial
and answer thereto are not pleadings. The opportunity
to request them
only arises strictly after the close of pleadings (Uniform Rule
21(2)).
[16]
Further particulars are limited to obtaining
information only for the purposes of preparing for trial. In
my view
some of the particulars required are not necessary for the
preparation of trial. The respondent’s amended plea as
well as
the particulars furnished by the respondent affords the applicant
more than enough particularity for the applicant to prepare
for
trial.
[17]
The applicant further argued that in the absence of adequate answers
from the respondent, the
applicant is placed in a disadvantaged
position and will not be able to have a proper consultation with
expert witnesses. I am
in disagreement with these submissions. It is
my view that that it is clear from the protocols and affidavits filed
by the respondent
how the respondent intends to pursue his case. It
cannot be said that the applicant will be caught by surprise during
trial as
to what the respondent’s case is. The respondent has
furnished the applicant with enough particulars to enable the
applicant
to prepare for trial, including preparing expert witnesses.
[18]
Therefore the application for a request for
further particulars must fail.
[19]
In the circumstances, I make the following order:
19.1 The application is
dismissed with costs.
L.
MPAMA, AJ
On
behalf of the plaintiff:
Adv JC Coetzer
Instructed
by
:
Lovius Block Inc.
Bloemfontein
On
behalf of the defendant
:
Adv. DR Thompson
Instructed
by
:
Raynard & Associates Inc
Bloemfontein