About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 146
|
|
A.S v Member of the Executive Council for the Department of Health KwaZulu-Natal (7630/2013P) [2023] ZAKZPHC 146 (28 November 2023)
FLYNOTES:
CIVIL PROCEDURE – Amendment –
Particulars
–
Medical
negligence claim – After ten days of evidence and with last
witness for MEC being cross-examined – Plaintiff
not
planning to lead further evidence on issues identified in
contentious paragraphs – Likely not impacting on final
decision – MEC would be prejudiced by granting of
application – Possibility that if application granted, some
of the MEC’s witnesses may have to be recalled so that
version purposefully not put to them could be so put –
Application to amend particulars refused.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
7630/2013P
In
the matter between:
A[…]
S[...]
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR THE
DEFENDANT
DEPARTMENT
OF HEALTH KWAZULU-NATAL
Coram
:
Mossop J
Heard
:
17 November 2023
Delivered
:
28 November 2023
ORDER
The
following order is granted
:
1.
The plaintiff’s application to amend her particulars of
claim
by the insertion of paragraph 16B and paragraphs 17.3.1 to 17.3.5, as
detailed in her notice of intention to amend dated
16 January 2023,
is refused.
2.
The costs of the application are to be paid by the plaintiff
but such
costs may only be taxed after delivery of the final judgment in the
trial.
JUDGMENT
MOSSOP
J
:
[1]
During the
early evening of 28 December 2010, the plaintiff gave birth to a
profoundly disabled boy (the minor child) at the East
Griqualand and
Usher Memorial Hospital at Kokstad, KwaZulu-Natal (the hospital). The
minor child has spastic quadriplegic cerebral
palsy. The trial that I
am presently hearing arises from an action instituted by the
plaintiff against the defendant for damages
arising out of the
alleged negligent conduct of the defendant’s servants at the
hospital relating to the birth of the minor
child. From my
understanding of those pleaded grounds of negligence,
[1]
they relate to conduct and events leading up to, and immediately
after, the birth of the minor child.
[2]
The trial
of the action commenced with the particulars of claim as originally
framed in place. Since the trial has commenced, it
has covered some
10 days of evidence in three separate tranches of hearings,
[2]
and has progressed to the precipice of finality, with the last
witness for the defendant in the witness box being cross examined.
[3]
The plaintiff now seeks to amend her particulars of claim and
consequently
delivered a notice in terms of Uniform rule 28(1) (the
notice of amendment). That elicited a notice of objection from the
defendant.
Accordingly, before me is an opposed application brought
in terms of Uniform rule 28(4) to amend the plaintiff’s
particulars
of claim. Mr Maritz SC, together with Mr Bodlani SC, were
instructed to move that application for the plaintiff and Mr Mullins
SC resisted that application for the defendant. I am indebted to
counsel both for their helpful submissions and for the congenial
way
in which the application was argued.
[4]
At the
outset, I caution myself that while the plaintiff has closed her
case, the defendant has not yet done so and the trial proceeds.
In
determining this application, I should therefore refrain from
expressing an opinion on the credibility of any of the witnesses
who
have thus far testified. This, as Willis J noted in
Randa
v Radopile Projects
,
[3]
does complicate the process of explaining why a particular decision
has been arrived at.
[5]
The law on the issue of amendments is well settled. Uniform
rule 28(10) grants a court the power:
‘…
at any stage before
judgment [to] grant leave to amend any pleading or document on such
other terms as to costs or other matters
as it deems fit.’
[6]
In
Robinson
v Randfontein Estates GM Co Ltd
,
[4]
Innes CJ stated that:
‘
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full enquiry. But within those limits the Court has a
wide discretion. For pleadings are made for the
Court, not the Court
for pleadings.’
The
court thus has a wide discretion to permit amendments but this
discretion must be exercised judicially.
[5]
This simply means that
the
decision should not be arrived at ‘capriciously but for
substantial reasons’
[6]
and that ‘there must be some grounds for its exercise, for a
discretion exercised on no grounds cannot be judicial’.
[7]
[7]
When
exercising such discretion, the well-followed approach postulated in
Moolman
v Estate Moolman
[8]
is of assistance:
‘
[The]
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or
unless such
amendment would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless
the parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which it is sought
to amend was filed.’
[8]
Thus,
prejudice to the opposing party is ‘the touchstone for the
grant or refusal of the application’.
[9]
[9]
The
primary goal of an amendment, frequently mentioned by the party
seeking it, is to ensure a proper ventilation of the true dispute
between the parties in order to permit the court to determine that
issue.
[10]
Notwithstanding
this laudable goal, the seeking of an amendment, nonetheless, remains
an indulgence, particularly once the trial
has commenced.
[11]
In this regard, Willis J in
Randa
[12]
expressed the view that:
‘
It
has long been my conviction that the commencement of a trial is the
fulcrum upon which the courts' stance in respect of applications
for
amendments to pleadings should be balanced. The further away the
parties are from the commencement of the trial, the easier
it should
be for a litigant to obtain an amendment and, conversely, the deeper
the parties are into trial and the nearer they may
be to obtaining
judgment, the more difficult it ought to be.
’
[10]
In paragraph 9 of the affidavit used in support of her application to
amend her particulars
of claim, the plaintiff, through the voice of
her attorney, explains the basis of her amendment:
‘
9.1
save in the minor respect alluded to below:
9.1.1
the amendment is founded upon the evidence already adduced by the
plaintiff and her witnesses at trial;
9.1.2
the plaintiff does not propose to adduce any further evidence in
support of the proposed amendment.
9.2
the plaintiff proposes, through the proposed amendment, to align her
pleadings to the evidence
adduced at the trial;
9.3
evidence relating to the post-natal care of [the minor child] relied
upon by the plaintiff
is documented in the hospital records and was
addressed in the report and evidence of Dr Yatish Kara at the trial.’
I
shall henceforth refer to this paragraph as ‘paragraph 9’.
[11]
The plaintiff’s notice of amendment is a formidable document,
comprising some 10
pages which contain 10 paragraphs crowded with
proposed amendments. This is best demonstrated by reference to the
new proposed
paragraph 17.4, which alone has 31 sub-paragraphs, some
of which also have their own sub-paragraphs.
[12]
But during argument, it appeared to me that some of the proposed
amendments within the
notice of amendment were not opposed by the
defendant and some were no longer persisted with by the plaintiff.
Given the convivial
way in which counsel presented their arguments
and interacted with each other, the court inquired of them whether
they could not
sit down together and identify which of the amendments
remained contentious and required a decision by the court, which were
not
opposed by the defendant, and which were no longer persisted with
by the plaintiff. Counsel very kindly agreed to do so and the
court
therefore stood down to allow this exercise to occur. On resumption,
counsel informed me that only the following paragraphs
in the notice
of amendment remained contentious and therefore necessitated a
decision by the court:
(a)
Paragraph 16B of the notice; and
(b)
Paragraphs 17.3.1 to 17.3.5 of the notice.
I
shall refer to these paragraphs as ‘the contentious
paragraphs’.
[13]
I will consequently not make further mention of the other amendments
mentioned in the notice
of amendment, as they will resolve themselves
by either not being pursued by the plaintiff or by being consented to
by the defendant
without further objection. The sole issue that this
judgment will now focus on will thus be whether the amendments
outlined in
the contentious paragraphs should be granted.
[14]
The contentious paragraphs respectively read as follows:
‘
16B.
Following the delivery of [the minor child] by caesarian (sic)
section [in] a severely compromised state in consequence
of what is
set out in paragraph 16A above [,] [the minor child] was provided
with sub-optimal resuscitation which fell short of
the proper and
reasonable standards for such resuscitation.’
[13]
and
’
17.3.
They failed to:
17.3.1
manage the resuscitation of [the minor child] immediately following
his birth in a proper and reasonable manner;
17.3.2
implement appropriate and correct resuscitation methods on respect of
[the minor child] immediately after his birth;
17.3.3
ameliorate or limit the damaging effects of the brain injury and/or
the complication;
17.3.4
take any or any reasonable steps to prevent the brain injury or
damage occasioned by the brain injury from becoming
permanent;
17.3.5
manage the immediate post-natal period appropriately or in accordance
with proper standards.’
[15]
The basis of the defendant’s objection to the amendment as a
whole, prior to it being
whittled down to the contentious paragraphs,
was twofold:
(a)
firstly, it
contended that many of the amendments sought were simply not
necessary and, if granted, would result in evidence being
incorporated into the pleading, something that is neither desirable
nor permitted;
[14]
and
(b)
secondly, notwithstanding what the plaintiff stated in paragraph 9,
no evidence
had actually been led on the issues identified in the
contentious paragraphs during the plaintiff’s case. The
delivery of
the notice of amendment was therefore not an attempt to
synchronise the pleadings with the evidence that had already been
led.
In this regard, the defendant contends that it was never the
plaintiff’s case that events after the birth of the minor child
caused, or contributed, to his present condition. The defendant goes
further and suggests that the plaintiff consciously chose
not to lead
this evidence when she notionally had the opportunity to do so.
[16]
By virtue of the allegation that no evidence was led as contended for
in the contentious
paragraphs, it follows that the first ground of
objection cannot apply to the contentious paragraphs, but the second
ground of
objection may well apply. That ground of objection must
therefore be carefully considered.
[17]
During her
case, the plaintiff, inter alia, presented the evidence of an expert
witness, Dr Yatish Kara (Dr Kara). He is the witness
referred to by
the plaintiff in paragraph 9.
[15]
While he was being led by the plaintiff’s erstwhile counsel, Mr
Gajoo SC, and was holding forth on the topic of the perfusion
of
fluids and glucose and nutrition immediately after an injury, Mr
Mullins rose and objected to that line of questioning for the
following reason:
‘
MR
MULLINS
: M’Lord, I do not want to
interrupt this too much but there is nothing pleaded about any damage
sustained
after the birth, or glucose issues.’
Plaintiff’s
erstwhile counsel responded, in part, as follows:
‘
MR
GAJOO
: … All the witness is
doing is commenting about the likelihood of further damage. It has
not
been pleaded specifically as I recall but it is encompassed
within his report, he deals with it as part of his report. He is
simply
explaining what he has said in his report as far as that is
concerned.’
The
court asked Mr Gajoo whether he intended amending the plaintiff’s
particulars of claim to allow this evidence to be led.
Counsel was
initially uncertain and the court stood down and granted him an
opportunity to take instructions and to consider his
options. Upon
returning, the court was advised as follows:
‘
MR
GAJOO
: M’Lord, thank you, we
are not going to persist in the amendment.’
[18]
That, however, was not the end of the matter. Dr Kara later went on
in his evidence in
chief to again testify about hypoglycaemia, which
prompted the following objection from Mr Mullins:
‘
MR
MULLINS
: M’Lord, I just want it noted
that my silence is not some indication that I am going to accept the
amendment
in due course. This evidence is not – if there is
going to be an amendment in due course to suggest that postnatal care
may
have caused the injury.’
Counsel
for the plaintiff responded by saying that:
‘
MR
GAJOO
: M’Lord we have
accepted that. We are simply dealing with the joint minute and he is
explaining
what was agreed on … .’
[19]
In the face of Mr Mullins’s implacable objection to this
evidence being led, the
plaintiff did not lead it, whether through Dr
Kara or through any other witness. In my view, the position adopted
by Mr Mullins
was correct. The particulars of claim made no
allegation about any injury sustained by the minor child after his
birth, nor did
they allege any issues arising out of hypoglycaemia or
any complication arising from a want of glucose.
[20]
In fact, the possibility of a postnatal injury causing, or
contributing, to the minor child’s
condition was, in effect,
ruled out by the evidence of another witness called by the plaintiff,
namely Dr Ebrahim. He expressed
himself as follows when cross
examined by Mr Mullins:
‘
DR
EBRAHIM
: Well, we know that in my opinion the baby
entered labour without hypoxic injury. There may have been a trace
that
was of doubt that was category 2, which in my opinion was not an
indication of damage. It was an indication that damage might occur,
and we know that the baby was born with severe hypoxic ischemic
encephalopathy, which means that the baby suffered hypoxia. Now,
the
hypoxia could have happened before labour, during labour or after
labour. Now, since the baby was born hypoxic, it removes
the
postnatal period as the time when the hypoxia occurred. We are left
with the labour and before labour and we have no reason
to suspect
why a healthy mother with a 4kg baby would enter labour with a baby
that has got brain damage from hypoxia. The baby
might have had some
evidence of compromise but there was no injury as yet. There was no
damage as yet. There was no irreversible
factor at that point. So the
conclusion is that it happened from the time of the onset of labour
until the time baby was born.’
[21]
The content of the contentious paragraphs is at odds with the
evidence of Dr Ebrahim.
[22]
A consequence of the election made by the plaintiff not to effect the
amendment and lead
the evidence was that when Dr Hofmann, a medical
practitioner who attended at the birth of the minor child, gave his
evidence for
the defendant, no questions were put to him on the
issues raised in the contentious paragraphs.
[23]
It is therefore difficult to understand how the proposed amendment,
as contained in the
contentious paragraphs, could constitute an
attempt by the plaintiff to align her pleadings with the evidence
led. Certainly, no
attempt was made in argument to identify when that
evidence had been led.
[24]
The
proposed amendment could, perhaps, if generously viewed, be
considered as an attempt to amend to enable that evidence to be
led.
But that is not the plaintiff’s expressed intent. She has
unequivocally stated in her affidavit, in her heads of argument,
and
in argument, that she intends leading no further evidence on the
issues identified in the contentious paragraphs. Why the amendment
is
sought therefore is not clear nor is it apparent how it will
contribute to the resolution of the true issues between the parties.
In
Benjamin
,
[16]
the court held that:
‘
Where
a proposed amendment will not contribute to the real issues between
the parties being settled by the Court, it is, I think,
clear that an
amendment ought not to be granted. To grant such an amendment will
simply prolong and complicate the proceedings
for all concerned and
must, in particular, cause prejudice to the opposing party who will
have to devote his energy and expend
both time and money in dealing
with an issue, the resolution of which may satisfy the needs (or
curiosity) of the party promoting
it but which will not contribute
towards the adjudication of the genuine dispute between the
parties
.’
[25]
The trial is long outstanding, and it has been two years since the
first witness testified
in the matter. I am aware that the plaintiff
intends to apply to re-open her case, which may prolong proceedings.
However, this
is intended to allow her to lead evidence on a very
discrete issue, namely whether she felt her baby moving in the run up
to her
going into labour. Mr Mullins, very fairly, indicated during
argument that he would have no objection to this occurring. And it
appears also to be agreed that the plaintiff’s expert witness,
Dr Kara, will have to be re-called to give evidence on a document
that came to hand at the eleventh hour relating to blood tests
performed upon the minor child shortly after his birth. But these
are
very limited issues upon which evidence will be led and should not
unduly prolong the trial.
[26]
I have
considered the fact that there has been a considerable delay in
seeking the proposed amendment. This delay is acknowledged
by the
plaintiff, who states in her heads of argument that some explanation
is required for the delay.
[17]
I have carefully read the founding affidavit in support of the
amendment. I regret that I have found no such explanation therein.
I,
nonetheless, caution myself that a delay in seeking an amendment is
itself not a reason to refuse it.
[18]
[27]
The fact that no evidence was led on the issues contained in the
contentious paragraphs
did not occur through happenstance, but
occurred because of a decision that was consciously taken regarding
the presentation of
that evidence. Even if the application to amend
was to be granted, there is every possibility that it will have no
impact on the
final decision in the light of the plaintiff’s
decision not to lead any further evidence on the issues identified in
the
contentious paragraphs.
[28]
I accept that the decision not to lead this evidence was a decision
that may have been
taken by the plaintiff’s erstwhile counsel
and that her new counsel may not regard himself as being bound by a
decision that
he believes may not be in her best interests. But her
new counsel, Mr Maritz, repeatedly assured me in argument that no
evidence
would be led on the issues covered by the amendment. As no
evidence was ever led on those aspects, the amendment becomes an
exercise
in futility, in my view.
[29]
I also take
the further view that the defendant would be prejudiced by the
granting of the application. The type of prejudice identified
in
Benjamin
applies with equal force to the facts of this matter. Coupled to this
is the possibility that if the application is granted, some
of the
defendant’s witnesses may have to be recalled so that the
version, which was purposefully not put to them, could be
so put. The
inconvenience and prejudice would be heightened. Sight, finally, must
also not be lost of the fact that the plaintiff
is indigent and the
litigation is being conducted on her behalf on a contingency basis.
She is in no position at this stage to
meet any costs order that may
be granted in terms of Uniform rule 28(9),
[19]
and the defendant cannot therefore at this stage be compensated with
the granting of a costs order. The costs order that I intend
granting
has been crafted to cater for the plaintiff’s impecuniosity.
[30]
In the exercise of my discretion, it seems to me that it would not be
in the interests
of justice to permit the amendment.
[31]
In the circumstances, I grant the following order:
1.
The plaintiff’s application to amend her particulars of claim
by the insertion
of paragraph 16B and paragraphs 17.3.1 to 17.3.5, as
detailed in her notice of intention to amend dated 16 January 2023,
is refused.
2.
The costs of the application are to be paid by the plaintiff
but such
costs may only be taxed after delivery of the final judgment in the
trial.
________________________
MOSSOP
J
APPEARANCES
Counsel
for the applicant
:
Mr NGD
Maritz SC with Mr AM Bodlani SC Instructed
by:
: Sakhela
Incorporated
54 Stewart Drive
Baysville
East London
Locally represented by:
J Leslie Smith and
Company Incorporated
332 Jabu Ndlovu (Loop)
Street
Pietermaritzburg
Counsel
for the respondent
: Mr
S R
Mullins SC
Instructed
by
: Norton
Rose Fulbright South Africa
Incorporated
3 Pencarrow Crescent
La Lucia Ridge
Durban
Locally represented by:
Cajee Setsubi Chetty
Incorporated
195 Boshoff Street
Pietermaritzburg
Date
of argument:
: 17
November 2023
Date
of judgment
: 28
November 2023
[1]
Twenty
grounds of negligence are pleaded in the particulars of claim,
divided into two tranches of allegations. The first tranche,
paragraph 17.1 of the particulars of claim, details five grounds of
general allegations of negligence. The second tranche, paragraph
17.2, itemizes 15 more specific allegations of negligence.
[2]
Three days of evidence over the period 22 to 24 November 2021; five
days of evidence over the period 25 to 29 July 2022; and
two days of
evidence over the period 11 to 12 August 2022.
[3]
Randa v
Radopile Projects CC
2012
(6) SA 128
(GSJ) para 17.
[4]
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
at 198.
[5]
Embling
v Two Oceans Aquarium CC
2000
(3) SA 691
(C) 694G-H.
[6]
R v
Zackey
1945 AD 505
at 513, quoting with approval from
In
re Taylor
(4 Ch. D. 157).
[7]
Merber
v Merber
1948
(1) SA 446
(A) at 452-453, quoting with approval from
Ritter
v Godfrey
[1920] 2 KB 47.
[8]
Moolman
v Estate Moolman and another
1927
CPD 27
at 29.
[9]
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
1989 (4) SA 940
(C)
at
957I-J.
[10]
Media
24 (Pty) Ltd v Nhleko and another
[2023] ZASCA 77
para 16.
[11]
Minister
van die Suid-Afrikaanse Polisie en ‘n ander v Kraatz en ‘n
ander
1973
(3) SA 490
(A)
at 512E-H;
Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co
(Pty) Ltd and others
1978
(1) SA 914
(A)
and 928D.
[12]
Randa v
Radopile Projects CC
2012
(6) SA 128
(GSJ)
para
4.
[13]
The
reference to the minor child in square brackets has been inserted
into the contentious paragraphs to anonymize his identity.
The
further word and punctuation mark appearing in square brackets are
missing from the proposed amendment but need to be inserted
to allow
the proposed amendment its proper meaning. This appears to be common
cause.
[14]
Media
24 (Pty) Ltd v Nhleko and Another
[2023]
ZASCA 77 para 18.
[15]
At
sub-paragraph 9.3 thereof.
[16]
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
1989 (4) SA 940
(C) at 958A-E.
[17]
Krogman
v Van Reenen
1926
OPD 191
at 194-195.
[18]
Bankorp
Limited v Anderson-Morshead
1997
(1) SA 251
(W) 253E-F.
[19]
That portion of Rule 28 reads: ‘
(9)
A party giving notice of amendment in terms of subrule (1) shall,
unless the court otherwise directs, be liable for the costs
thereby
occasioned to any other party.’