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[2021] ZAGPJHC 101
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M[....] in her capacity as Mother and Natural Guardian of M[....] v Member of the Executive Council for Health, Gauteng Provincial Government (37420/2013) [2021] ZAGPJHC 101 (22 July 2021)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
:
37420/2013
DATE
:
22
nd
JULY 2021
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
M[...]
,
L[...], in her capacity as
Mother and Natural
Guardian for and on behalf of:
M[…]
,
T[…]
B[…]
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE COUNCIL FOR
HEALTH,
GAUTENG PROVINCIAL
GOVERNMENT
Defendant
Coram:
Adams
J
Heard:
20
July 2021 – The ‘virtual hearing’ of
the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
22
July 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email and by
being
uploaded to the
CaseLines
system of the GLD. The date and time
for hand-down is deemed to be 12:30 on 22 July 2021.
Summary:
Civil
procedure – application to amend defendant’s plea in
terms of Rule 28(4) of the Uniform Rules – delictual
claims for
damages based on professional negligence – whether amendment
will introduce excipiable plea, which would be bad
in law –
defendant is entitled to plead a development of the common law, which
is at variance with the present legal position
– defendant
granted leave to amend plea
ORDER
(1)
The
defendant is granted condonation of the late delivery of his replying
affidavit.
(2)
The
defendant is granted leave to amend his plea as set out in his notice
of intention to amend dated the 9
th
of June 2020.
(3)
The
defendant shall effect this amendment within ten days from date of
this order.
(4)
There
shall be no costs order relative to this application for leave to
amend, as well in relation to the defendant’s application
for
condonation for the late delivery of his replying affidavit.
JUDGMENT
Adams
J:
[1].
A
central issue in this opposed application by the defendant for leave
to amend his plea relates to whether or not the proposed
amendment of
the plea would render same excipiable. The plaintiff contends that
the proposed amended plea would be susceptible
to an exception on the
basis that it would not be disclosing a valid and legally sustainable
defence. In her notice of objection
to the proposed amendment, the
plaintiff states that ‘[t]he defendant's proposed amendment is
bad in law, alternatively,
vague and embarrassing in consequence
whereof the amendment, if allowed, would render the plea excipiable.’
This is the general
tenet of the plaintiff’s objection to the
intended amendment.
[2].
So,
for example, the plaintiff’s objection to certain portions of
the proposed amended plea, which would allege a defence
based on the
so-called ‘Public Healthcare defence’, is formulated as
follows:
‘
3.1
The
Defendant refers, in paragraphs 9.7.1, 9.7.2, 9.10, 9.13, 9.15, 9.17,
9.19 and 9.21 of the proposed amendment to its alleged
ability to
render services and provide items being of “an acceptable
quality”.
3.2
The
aforesaid reference to such services and Items being of "an
acceptable quality" Is not a valid defence in the law,
as it
currently stands, In that the Defendant is required to plead and
prove, for its defence to succeeds, that the services and
devices
required by the minor child that are allegedly available at no or
lesser costs, can be rendered and supplied at the same
or higher
standard than what is available in the private healthcare system.
3.3
Insofar
as the references (referred to in paragraph 3.1 above) to such
services and items being of “an acceptable quality”
is in
conflict with the reference in paragraphs 9.4, 9.8.2 and 9.23.2 to
“the same or higher standard”, the averments
pleaded are
contradictory to what is pleaded in the paragraphs referred to in
paragraph 3.1 above and are, therefore, vague and
embarrassing.’
[4].
The
defendant applies for leave to amend his plea in accordance with
Uniform Rule of Court 28(4). The plaintiff opposes the application
on
the basis of the objections raised in her notice of objection.
Plaintiff also opposes the application on the basis that, in
bringing
the said application, the defendant is
mala
fide
, which is demonstrated by the long
delay in bringing same, coupled with the fact that there had been a
few false starts. As already
alluded to, the intended amendment is
aimed, in essence, at introducing a defence based on the ‘Public
Healthcare defence’,
in addition to defences based on a request
by the defendant that the plaintiff should be compensated not in a
lump sum, but in
kind or in instalments. The proposed amendment
therefore pleads that the common law should be developed to make such
defences available
to defendants, such as the present defendant.
[5].
In
its amended form, the plea broadly sets out the defendant’s
defence and his request for a development of the common law.
The
manner in which the common law should be developed, as pleaded by the
defendant in his proposed amended plea, may very well
be at variance
with the way in which the common law has already been developed by
other similar cases. An example of such a variance
is contained in
the extract above. It is in such cases that the plaintiff contends
that the plea would be excipiable as not being
based on the law as it
presently stands or as it has been developed to date. There is, in my
view, no merit in this contention.
The point simply is that the
defendant’s intention is to plead a further development of the
common law. The objection is
therefore misguided and therefore stands
to be rejected.
[6].
This
point applies to all of the other possible grounds of exception
raised by the plaintiff.
[7].
It
is trite that a court should endeavour to look benevolently instead
of over-critically at a pleading, and it must be looked at
as a
whole. If there is any uncertainty in regard to a pleader's intention
an excipient cannot avail himself thereof unless he
shows that upon
any construction of the pleadings the claim is excipiable. In that
regard see:
Amalgamated
Footwear & Leather Industries Jord
an
& Co Ltd
[1]
.
[8].
Amendments
will always be allowed unless the application to amend is
mala
fide
, or unless such an amendment would
cause an injustice to the other side which cannot be compensated by
costs. In other words, unless
the parties cannot be put back for the
purposes of justice in the same position as they were when the
pleadings which it is sought
to amend were filed.
In
casu
, I do not believe that the
defendant, in bringing this application for leave to amend, is acting
mala fide
.
I say so, despite the fact that, as correctly pointed out by the
plaintiff, there appears to have been unnecessary delays in the
prosecution and finalisation of the application for leave to amend. I
am however satisfied the explanations given for the delay
by the
defendant’s attorney are acceptable.
[9].
Importantly,
I reiterate my view that the defendant simply wishes to bring the
pleadings in line with the issues in dispute between
the parties,
hence the application for leave to amend. The reality of the matter
is that the development of the law, as proposed
by the defendant in
this matter and other cases before various other courts in the land,
is an important issue and one which should
be ventilated during the
trial. I therefore do not believe that the application is
mala
fide
.
[10].
I
am therefore of the view that the defendant should be granted leave
to amend. There is no merit in the plaintiff’s objection
to the
proposed amended plea.
[11].
There
was also an application for condonation by the defendant for the late
delivery of his replying affidavit. The plaintiff opposed
the
application for condonation and filed an answering affidavit. I am
satisfied that the defendant made out a case for condonation.
In any
event, during the hearing of the main application on the 20
th
July 2021, Mr Coetzer, Counsel for the plaintiff,
confirmed that she is not persisting with her opposition to the
condonation application.
That was, in my view, the right thing to do.
I therefore granted the defendant’s application for condonation
during the hearing
of the main application.
Costs
[12].
The
general rule in matters of costs is that the successful party should
be given his costs, and this rule should not be departed
from except
where there are good grounds for doing so, such as misconduct on the
part of the successful party or other exceptional
circumstances. See:
Myers
v
Abramson
[2]
.
[13].
The
defendant, in applying for leave to amend his plea, was asking for an
indulgence from the court. This means that the defendant
is liable to
pay the cost of the application for leave to amend.
[14].
The
plaintiff, on the other hand, should pay the cost of the opposition
to the application. This cost order would however be cancelled
out to
a greater or lesser extent by the cost order to which the defendant
is entitled. There is a further aspect which I should
consider in
relation to the award of costs and that relates to the delay by the
defendant to bring this application for leave to
amend.
[15].
I
am of the view that no order as to cost shall be fair, reasonable and
just to all concerned. Therefore, in the exercise of my
discretion I
intend granting no order as to costs.
Order
Accordingly,
I make the following order:-
(5)
The
defendant is granted condonation of the late delivery of his replying
affidavit.
(6)
The
defendant is granted leave to amend his plea as set out in his notice
of intention to amend dated the 9
th
of June 2020.
(7)
The
defendant shall effect this amendment within ten days from date of
this order.
(8)
There
shall be no costs order relative to this application for leave to
amend, as well in relation to the defendant’s application
for
condonation for the late delivery of his replying affidavit.
L
R ADAMS
Judge
of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON: 20
th
July 2021 – in a ‘virtual hearing’ during a
videoconferences on the Microsoft Teams digital platform
JUDGMENT
DATE: 22
nd
July 2021 – judgment handed down electronically
FOR
THE PLAINTIFF/
RESPONDENT: Advocate
Martin Coetzer
INSTRUCTED
BY: Wim
Krynauw Attorneys, Johannesburg
FOR
THE DEFENDANT/
APPLICANT: Adv
V J Chabane
INSTRUCTED
BY: The
State Attorney, Johannesburg
[1]
Amalgamated
Footwear & Leather Industries Jordan & Co Ltd
,
1948 (2) SA 891
(C) at 893
[2]
Myers
v Abramson
,
1951(3) SA 438 (C) at 455