Tyibilika v Member of the Executive Council for the Department of Health, Eastern Cape Province (579/2013) [2021] ZAECBHC 38 (30 November 2021)

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[2021] ZAECBHC 38
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Tyibilika v Member of the Executive Council for the Department of Health, Eastern Cape Province (579/2013) [2021] ZAECBHC 38 (30 November 2021)

OF INTEREST
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE NO. 579/2013
In the matter
between:
ASANDA BEAUTY
TYIBILIKA
Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE
DEPARTMENT OF HEALTH,
EASTERN CAPE
PROVINCE
Defendant
Practice –
Amended Rule 37A
–
Case
Management has ushered in a new era that requires practitioners and
litigants to be mutually concerned with and responsible for
meeting
the objectives of case management.  Gone are the days of
technical point taking or practitioners adopting a supine attitude
when it comes to trial matters proceeding by simply waiting for the
other to do all the gearing up for trial regardless of who bears
the
onus or who is
dominus
litis
.
Rule 37A (2) (c) instead behoves the parties on either side to act
professionally
and in the mutual interest of promoting effective case management so
that trials run when they are supposed to, and that their completion
is expedited. Both are also enjoined to
address
the problems
that may arise in finalising cases.  It is mutual trial
readiness that case management aspires to – Wasted costs and blame
apportioned between the parties
in
casu
.
JUDGMENT IN
RESPECT OF COSTS ARISING
FROM THE REMOVAL
OF THE MATTER
FROM THE TRIAL
ROLL ON 16 NOVEMBER 2021
HARTLE J
[1]
The
abovementioned action was enrolled for hearing on quantum on 16
November 2021.
[1]
[2]
The
matter served before Goosen J at a trial roll call hearing on 12
November 2021. He issued a directive confirming that the matter
was
ready to proceed to trial on the allocated trial date.  It
appears from a note endorsed on the file for the benefit of the
trial
judge however that despite the order issued by him on the morning of
12 November 2021, he had subsequently been approached
by the State
Attorney representing the defendant who had suggested a contrary
view.  The note suggests further that the order
had been taken
by the plaintiff’s representatives in the absence of the defendant
despite a request by them to stand the matter
down in order to obtain
the defendant’s instructions.  Also noted by my colleague was
the defendant’s concern that she wished
to appoint experts to
counter those filed by the plaintiff, hence her reservation that the
matter was trial ready.
[3]
Under
these circumstances Goosen J deferred to the trial court to consider
the merits of the defendant’s contentions raised in chambers
regarding the question of trial readiness.
[4]
On the
morning of the trial Mr. Mtshabe who appeared for the plaintiff
insisted that the plaintiff was ready to proceed on trial.
[2]
Mr. Sishuba who appeared for the defendant argued
conversely however that the matter was not trial ready and should not
have been endorsed as such in the first place.  Mr. Sishuba
requested me to issue a declarator to the effect that the matter
was
“not trial ready”, which would occasion an obvious removal of the
matter from the trial roll, with the plaintiff to pay the
wasted
costs occasioned by the matter’s unnecessary enrolment,
alternatively unwarranted certification of trial readiness whereas
it
was far from ready for adjudication according to the defendant.
After hearing the parties’ submissions, I ruled that the
matter be
removed from the trial roll, but I reserved the question of costs.
[5]
The
expectation regarding what is to happen at trial roll call - the
culmination of the judicial case management trajectory, is set
out in
the “Practice directive on judicial case management, Eastern Cape
Division”
[3]
as follows:
“
1.     This
Practice Directive is issued pursuant to the amendment of the Rules
of Court set out in Government
Gazette 42497, R842 promulgated on 31
May 2019.
2.
The amendment introduces,
inter alia,
rule 37A,
which, in turn, introduces Judicial Case Management as part of the
Uniform Rules of Court (the Rules).
3.
In order to facilitate the introduction of Judicial Case Management,
and to regulate matters
pending further directives which will, in due
course be issued, the following procedures shall apply throughout the
Division:
3.1         The
primary responsibility to manage a case and prepare same
expeditiously
for trial remains with the parties and their legal
representatives, upon whom it is incumbent to comply with the Rules.
3.2         In
terms of rule 37A (1) Judicial Case Management as envisaged by rule
37A
shall apply to the following categories of cases:
3.2.1       all
damages claims against the Road Accident Fund; and
3.2.2       all
damages claims founded on alleged medical negligence.
3.3
The categories of matters set out in paragraph 3.2 above shall only
be enrolled for trial in accordance
with the provisions set out in
rule 37A
3.4
In respect of all matters other than those set out in paragraph 3.2
above, the provisions of rule 37 shall
apply and such matter shall be
enrolled for trial by the Registrar in accordance with rule 3 of the
Rules Regulating the Conduct
of the proceedings of the Eastern Cape
Division published in
GN
R3289
of
12 September 1969.
3.5
All civil matters enrolled for hearing (whether in accordance with
rule 37A or otherwise) shall be subject to
a weekly roll call that
shall henceforth be held before a judge (in open court) at each seat
of the Division on Friday at 09h00 four
(4) weeks prior to the week
in which the matter is enrolled.
3.6
The purpose of the roll call shall be to ensure that the parties have
complied with the Rules and that
the matter is ready to proceed to
trial on the allocated trial date.
3.7
In respect of those matters to which rule 37A does not apply, the
parties shall:
3.7.1   be
required at the roll call to:
(a)
satisfy
the Judge that they have substantially complied with the provisions
of rule 37 of the Rules and that the matter is ripe for
adjudication
on the trial date;
(b)
deal
with any outstanding matters relating to trial-readiness;
(c)
indicate
what steps have been taken to narrow or limit the issues in dispute;
and
3.7.2  file
a minute of the pre-trial conference dealing with the matters
envisaged in rule 37(6) which minute shall clearly
identify the
issues to be tried.
3.8
Only practitioners with right of audience in the High Court shall
appear at the roll call, and shall do
so appropriately robed.
3.9
The record of the roll call process shall be included in the trial
file.
3.10   In
respect of those matters enrolled pursuant to rule 37A, the roll call
shall serve as final certification of trial-readiness.
The parties
shall be obliged to file a minute recording compliance with any
outstanding directives and such further agreements reached
by the
parties which relate to the conduct of the trial.
3.11
If at the roll call hearing it appears that a party has not complied
with the provisions of rule 37 or 37A the Judge
concerned may direct
that a further conference be convened and that a minute be filed. In
such event the matter may be set down for
a further roll call
hearing. The Judge may in addition issue such further orders as may
be required to facilitate compliance with
the Rules and bring the
matter to trial readiness.
3.12
If the matter has been settled prior to the roll call hearing, the
parties will be required to present a draft order
detailing the
settlement and, where appropriate, affidavits and other documents
relevant to any existing contingency fee agreement.
The Judge then
presiding may if he/she is satisfied, finalize the matter in
accordance with the agreement or, in appropriate cases,
defer issuing
such order until the terms of the settlement and/or contingency
agreement shall be considered.
3.13
These Directives replace all previous Directives relating to Judicial
Case Management, which are hereby withdrawn,
and shall come into
effect on 01 July 2019.”
(Emphasis
added.)
[6]
It is
also necessary to consider the import of the Uniform Rule of
application herein.  Rule 37A provides as follows:
“
37A.   Judicial Case
Management.
—
(1) A
judicial case management system shall apply, at any stage after a
notice of intention to defend is filed—
(
a
) to such categories of
defended actions as the Judge President of any Division may determine
in a Practice Note or Directive; and
(
b
) to any other
proceedings in which judicial case management is determined by the
Judge President, of own accord, or upon the request
of a party, to be
appropriate.
(2
) Case management through
judicial intervention—
(a) shall be used in the
interests of justice to alleviate congested trial rolls and to
address the problems which cause delays in
the finalisation of cases;
(b) the nature and extent of
which shall be complemented by the relevant directives or practices
of the Division in which the proceedings
are pending; and
(c) shall be construed and
applied in accordance with the principle that, notwithstanding the
provisions herein providing for judicial
case management, the primary
responsibility remains with the parties and their legal
representatives to prepare properly, comply
with all rules of court,
and act professionally in expediting the matter towards trial and
adjudication.
(3) The provisions of rule 37
shall not apply, save to the extent expressly provided in this rule,
in matters which are referred for
judicial case management.
(4) In all matters designated to
be subject to judicial case management in terms of subrule (1) (a) at
any stage before the close
of pleadings, the registrar may—
(
a
) direct compliance
letters to any party which fails to comply with the time limits for
the filing of pleadings or any other proceeding
in terms of the
rules; and
(
b
) in the event of
non-adherence to the directions stipulated in a letter of compliance,
refer a matter to a case management judge
designated by the Judge
President who shall have the power to deal with the matter in terms
of the practice directives of the particular
Division concerned.
(5) (a) Notwithstanding the
allocation of a trial date, a case that is subject to judicial case
management shall not proceed to trial
unless the case has been
certified trial ready by a case management judge after a case
management conference has been held, as provided
for in subrule (7).
(b) A
case management judge shall not certify a case as trial ready unless
the judge is satisfied—
(i) that the case is ready for
trial, and in particular, that all issues that are amenable to being
resolved without a trial have
been dealt with;
(ii) that the remaining issues
that are to go to trial have been adequately defined;
(iii) that the requirements of
rules 35 and 36 (9) have been complied with if they are applicable;
and
(iv) that any potential causes of
delay in the commencement or conduct of the trial have been
pre-empted to the extent practically
possible.
(
c
) A case management
judge may order directions on the making of discovery where the judge
considers that such directions may expedite
the case becoming trial
ready.
(6) In every defended action in a
category of case which has been identified in terms of subrule (1)
(a) as being subject to judicial
case management in which any party
makes application for a trial date following the close of pleadings,
the registrar shall issue
a notice electronically to the parties, at
the addresses furnished in terms of rules 17 (3) (
b
) or 19 (3)
(
a
), in respect of the holding of a case management
conference.
(7) The notice by the registrar
in terms of subrule (6) shall inform the parties (
a
) of the
date, time and place of a case management conference in the matter to
be presided over by a case management judge; (
b
) of the name
of the case management judge, if available; (
c
) that they are
required to have held a pretrial meeting before the case management
conference at which the issues identified in subrule
(10) in relation
to the conduct and trial of the action must have been considered;
and (
d
) that the plaintiff is required. not less than two days
before the time appointed for the case management conference, to—
(i) ensure that the court file
has been suitably ordered, secured, paginated and indexed; and
(ii) deliver an agreed minute of
the proceedings at the meeting held in terms of paragraph (c)
,
alternatively, in the event that the parties have not reached
agreement on the content of the minute, a minute signed by the party
filing the document together with an explanation why agreement on its
content has not been obtained.
(8) The minute referred to in
subrule (7) (d) (ii) shall particularise the parties’ agreement or
respective positions on each of
the issues identified in subrule (10)
and, to the extent that further steps remain to be taken to render
the matter ready for trial,
explicitly identify them and set out a
timetable according to which the parties propose, upon a mutually
binding basis, that such
further steps will be taken.
(9) (
a
) In addition to the
minute referred to in subrule (7) (d) (ii), the parties shall deliver
a detailed statement of issues, which shall
indicate—
(i) the issues in the case that
are not in dispute; and
(ii) the issues in the case that
are in dispute, describing the nature of the dispute and setting
forth the parties’ respective
contentions in respect of each such
issue.
(
b
) A case management
judge may, upon considering the statement by the parties referred to
in paragraph (a), direct that appearance
by one or all of the parties
is dispensed with.
(10) The matters that the parties
must address at the pretrial meeting to be held in terms of subrule
(7) are as follows—
(
a
) The matters set forth
in rules 35, 36 and 37 (6);
(
b
) the soliciting of
admissions and the making of enquiries from and by the parties with a
view to narrowing the issues or curtailing
the need for oral
evidence;
(
c
) the time periods
within which the parties propose that any matters outstanding in
order to bring the case to trial readiness will
be undertaken;
(
d
) subject to rule 36
(9), the instruction of witnesses to give expert evidence and the
feasibility and reasonableness in the circumstances
of the case that
a single joint expert be appointed by the parties in respect of any
issue;
(
e
) the identity of the
witnesses they intend to call and, in broad terms, the nature of the
evidence to be given by each such witness;
(
f
) the possibility of
referring the matter to a referee in terms of section 38 of the Act;
(
g
) the discovery of
electronic documents in the possession of a server or other storage
device;
(
h
) the taking of evidence
by video conference;
(
i
) suitable trial dates
and the estimated duration of the trial; and
(
j
) any other matter
germane to expediting the trial readiness of the case.
(11) Without limiting the scope
of judicial engagement at a case management conference, the     case
management
judge shall—
(
a
) explore settlement, on
all or some of the issues, including, if appropriate, enquiring
whether the parties have considered voluntary
mediation;
(
b
) endeavour to promote
agreement on limiting the number of witnesses that will be called at
the trial, eliminating pointless repetition
or evidence covering
facts already admitted; and
(
c
)
identify and record the issues to be tried in the action.
(12) The case management judge
may at a case management conference—
(
a
) certify the case as
trial ready;
(
b
) refuse certification;
(
c
) put the parties on
such terms as are appropriate to achieve trial readiness, and direct
them to report to the case management judge
at a further case
management conference on a fixed date;
(
d
) strike the matter from
the case management roll and direct that it be re-enrolled only after
any noncompliance with the rules or
case management directions have
been purged;
(
e
) give directions for
the hearing of opposed interlocutory applications by a motion court
on an expedited basis;
(
f
) order a separation of
issues in appropriate cases notwithstanding the absence of agreement
by the parties thereto;
(
g
) at the conclusion of a
case management conference, record the decisions made and, if deemed
convenient, direct the plaintiff to
file a minute thereof;
(
h
) make any order as to
costs, including an order
de bonis propriis
against the
parties’ legal representatives or any other person whose conduct
has conduced unreasonably to frustrate the objectives
of the judicial
case management process.
(13) The record of the case
management conference, including the minutes submitted by the parties
to the case management judge, any
directions issued by the judge and
the judge’s record of the issues to be tried in the action, but
excluding any settlement discussions
and offers, shall be included in
the court file to be placed before the trial judge.
(14) The trial judge shall be
entitled to have regard to the documents referred to in subrule (13)
in regard to the conduct of the
trial, including the determination of
any applications for postponement and issues of costs.
(15) Unless the parties agree
thereto in writing, the case management judge and the trial judge
shall not be the same person.
(16) Any failure by a party to
adhere to the principles and requirements of this rule may be
penalised by way of an adverse costs
order.”
(Emphasis added)
[7]
It is
clear from the provisions above, and from the various forms employed
in this division to facilitate the mechanism of case management,
both
judicially and via the registrar, that the protocol has ushered in a
new era that requires practitioners and litigants to be
mutually
concerned with and responsible for meeting the objectives of case
management.  Gone are the days of technical point
taking or
practitioners adopting a supine attitude when it comes to trial
matters proceeding by simply waiting for the other to do
all the
gearing up for trial regardless of who bears the onus or who is
dominus
litis
.
Rule 37A (2) (c) instead behoves the parties on either side to act
professionally
and in the mutual interest of promoting effective case management so
that trials run when they are supposed to, and that their completion
is expedited. Both are also enjoined to pre-empt and
address
the problems
that may arise in finalising cases.  Further, although templates
and forms are tools employed by this division to achieve the
aims of
case management, it is not the perfunctory responses or merely going
through the motions that meet that end.  Parties
must through
their continuing efforts engage earnestly with each other, the case
management judge, and the court to promote meaningful
access to
justice and the effective use of the court’s resources.
[4]
[8]
Submissions
concerning the trial readiness of the present matter were made from
the bar.
[5]
[9]
In
brief it was contended on behalf of the defendant that the matter had
firstly been improperly set down.  Secondly, it was
suggested
that the matter could not be trial ready because the pleadings, “have
not yet closed”.  In support of this contention
Mr. Sishuba
pointed to the fact that the defendant had filed a late amendment to
her plea introducing the “public healthcare defence”
to which the
plaintiff still had time to replicate and the parties time still to
file their respective expert notices and summaries
based on the
amended defence.
[6]
(The
defendant also prays in the amended plea that any damages awarded to
the plaintiff are to be paid in periodic instalments
over a period of
five to eight years, which may also entail the development of the
common law.)
[7]
Thirdly, and
assuming that the matter had been properly set down, the defendant
claimed that she had requested that the action be
postponed.  In
this respect it was recorded that the plaintiff’s attorneys had
been advised in writing that the issues for
determination raised by
the amendment are similar to those which in that week were the
subject of adjudication by my colleague Griffiths
J in the matter of
Andiswa Noyila v MEC for Health, Eastern Cape Province (Bhisho case
no. 36/2017), the hearing of which was contemporaneously
underway in
East London at the Tribunal, the idea being that the Noyila matter be
disposed of first.
[8]
I
was informed that this letter had attracted no reply and indeed the
plaintiff’s local attorney appeared visibly surprised
when in court
he was shown the letter to which he had purportedly not furnished a
response.
[10]
Further,
a general objection was raised to the effect that one of the
plaintiff’s notices in terms of rule 36 (9)(a) and (b) in
respect
of Dr Rob Campbell were not compliant with those sub-rules, both in
respect of the main purpose of sub-rule (9) as well as
the
dies
prescribed therein.
[11]
Although
Mr. Mtsabe indicated that the plaintiff was ready to proceed on
trial, he did not vociferously oppose Mr. Sishuba’s request
that
the matter be removed, provided that the defendant pay the wasted
costs occasioned by such removal.
[9]
[12]
He
pointed out however that, as far as the plaintiff was concerned, the
matter had been properly enrolled and had been confirmed trial
ready
by the State Attorney acting on the defendant’s behalf in the trial
roll call checklist itself.
[10]
He further asserted that the plaintiff’s expert reports had been
filed timeously and took into account the defendant’s
proposed
amendment, even if it was not perfected until after trial roll call.
(This assurance however misses the defendant’s
unique argument that
because of her new defence raised, the pleadings have been
“re-opened” and the parties therefore
still
have time
to file their expert notices and summaries.)  He added that the
plaintiff did not intend to take any of the steps envisaged
in rule
28 (8) post amendment, this removing any encumbrances to the matter
proceeding.
[13]
Turning
to the first ground upon which question of trial readiness was
challenged Mr. Sishuba suggested in this respect that the plaintiff
had simply issued her notice of set down dated 23 July 2021 advising
that the matter would be heard on “15 November 2021” (
sic
)
without any certification by a judge that the matter was trial ready
and without first holding the requisite pre-trial conference.
[11]
[14]
Although
I could not find any directive in the court file certifying the
matter trial ready (in respect of the separated issue of
quantum), or
the registrar’s notice of enrolment on the trial roll, it is in my
view improbable that the trial date was allocated
by the registrar in
the absence of the requisite case management procedures having been
followed.
[12]
In the
file I found trial preparation checklists for certification of trial
readiness (Forms 1(a)), as well as pre-trial minutes,
suggesting that
the customary pre-trial protocols must have been adopted.  The
plaintiff could therefore not have acted independently
in filing a
notice of set down of the matter but would have done so only after
receipt of the registrar’s notice of allocation
of a trial date.
In any event the enrolment upon trial, on the basis of a Judge’s
certificate of trial readiness to get to
even that point, would have
been conditional upon the matter being finally certified trial ready
at roll call.
[13]
[15]
There
is therefore no merit in the assertion that the matter was
prematurely enrolled, but if there was in the first place any valid
basis for the defendant to be suggesting that the set down was
unprocedural, or improper, or that she had been blindsided by the
enrolment, one would have expected her to have volubly complained or
raised a formal challenge to the filing of the plaintiff’s
notice
of set down.  This technical objection appears to have been
raised as an afterthought.
[16]
The
next question concerns the impact of the defendant’s late amendment
on the status of the proceedings.
[17]
The
defendant gave notice of her intention to amend her plea by the
introduction of the public healthcare defence on 23 September
2021
but did not perfect her amendment until 12 November 2021.  The
delivery of the amended plea seems to have occurred after
the parties
appeared before Goosen J at trial roll call, but its absence was
given limited recognition to in the trial roll call
checklist in the
sense that the parties recorded that the defendant would attend to
its filing.
[18]
The
effect of rule 28 (5) is that if a proposed amendment to a pleading
is not objected to, the party’s demur in this respect is
taken to
mean that he/she consents to the proposed amendment.  The party
seeking the amendment thereby acquires the right to
amend, but the
actual amendment of the pleadings takes place only when the amendment
is effected within the stipulated time in accordance
with sub-rule
(7), that is within ten days after the expiration of the initial
period of ten days.
[14]
The
other side to the coin is that a party who has consented to the
amendment and allowed it to be incorporated (by not objecting),
is
not entitled thereafter to argue that the court should disregard
it.
[15]
[19]
The
plaintiff in this instance indeed accepted the inevitably of the
matter proceeding on the basis of the defendant’s amended plea
and
took steps to prepare her case for trial along this basis.
[20]
Reading
between the lines, however, there seems to have been no communication
between the parties regarding the obvious impact of
the amendment on
the trial readiness of the matter.  Whereas Mr. Mtshabe asserted
that the plaintiff had no intention of filing
any further pleadings
or reacting formally to the amendment, the impression is gleaned that
the defendant was unaware of the plaintiff’s
attitude towards the
late amendment or of the fact that she was co-incidentally preparing
her case to meet the defendant’s amended
defence foreshadowed in
her notice of intention to amend her plea.
[21]
It
appears from the court file that the plaintiff, no doubt in response
to the late amendment, filed not one, but two, expert reports
in
October 2021 already to counter the suggestion that the defendant is
well placed to provide care-in-kind to the plaintiff or to
make
payments on a periodic basis instead of a lumpsum payment as is the
traditional manner in which quantum is ordered to be paid
by the
courts of our country.  For some or other reason those same
reports were filed again on 11 November, giving the impression
that
they were being filed “late” in relation to the trial date of 16
November 2021.  The defendant’s argument however
is not that
the expert notices and reports were filed “out of time” in
relation to the trial date, but rather that their existence
necessitated the defendant
responding
to them (Sic) by filing expert reports of her own in substantiation
of her new defence.  What was suggested is that she would
be
prejudiced if she did not have an opportunity to file her own expert
reports to “counter” the views held by the plaintiff’s
experts
in this regard.
[22]
This
is somewhat ironic however since the defendant bears the onus to
adduce evidence to substantiate the argument raised by her for
the
development of the common law.
[16]
(Even in respect of a mitigation of healthcare costs defence she
would also have an evidential burden to counter the plaintiff’s
evidence that her damages claimed are reasonable.)
[17]
One would have imagined therefore that if the defendant was serious
about pursuing her amended defence at the trial that she would
firstly have delivered her amendment early and, secondly, have
garnered the written views of experts who would support her argument
that the common law ought to be developed
in
casu.
She
should also have been in a position already to file formal notices in
terms of rule 36 (9) (a), if not in terms of sub-rule (b),
well in
time before the trial date.
[18]
Indeed, I imagine that some consultation with these experts and
vital witnesses would have preceded the crafting of the
defendant’s
notice of intention to amend, leaving her and her representatives in
no doubt as to the challenges ahead of her and
how much work was
required to prepare for trial on the basis of her amended plea.
[19]
Although litigating parties are certainly entitled to the running of
dies
that
prompt the next step it must not be lost sight of (within the context
of the new case management system) that such entitlement
will be
constrained and or must be attenuated or adjusted where late
amendments are sought to be introduced after the matter has
already
been enrolled for trial. The party seeking to amend must certainly
consider how the amendment will affect the trial proceeding
and be
open about such an impact, especially when it comes to the issue of
tendering costs.  In this respect the defendant on
the one hand
seemed to require an indulgence by having asked the plaintiff to
agree to a postponement of the trial, but on the other
was not
prepared to own that she was the author of the disruption. She should
indeed have offered the wasted costs that would be
occasioned by
accommodating her in this respect to lay a basis for the development
of the common law.
[23]
Even
so, evidently no discussion ensued between the parties concerning how
the scope of the litigation had been changed, if at all,
by the now
perfected amendment or how this might impact the trial proceeding,
neither was Goosen J brought up to speed regarding
the recent
developments or how this would affect matters. Although the plaintiff
asserted that she was fully ready to run, it helps
not a jot for one
party to be prepared and the other clearly not. It is mutual
readiness that case management aspires to.
[24]
Instead
of approaching the matter from the angle of the parties’
obligations to professionally case management the trial - the duty
at
the core of mutually getting a matter to a state of trial readiness,
the defendant adopted a technical approach in assessing the
status of
the matter.
[25]
Mr.
Sishuba referred the court to Natal Joint Municipal Pension Fund v
Endumeni Municipality
[20]
in
which the concept of
litis
constestatio
is
explained as follows:
“
The
origin of the concept of
litis contestatio
is
the formulary procedure of the Roman law in which the litigants
appeared before the praetor, who formulated the issues that the
judge
had to decide. Once the issues had been formulated the stage of
litis
contestatio
was reached.
[21]
In
Government of the Republic of South Africa
v Ngubane
[22]
Holmes JA said:
‘
In modern practice
litis
contestatio
is taken as being synonymous with
close of pleadings, when the issue is crystallised and joined … And
in modern terminology, the
effect of
litis
contestatio
is to “freeze the plaintiff's
rights as at that moment”.’
There is no problem with this formulation when parties
abide by their pleadings and conduct the trial accordingly.
Frequently, however,
they do not do so because other issues arise
that they wish to canvass and either formally, by way of an amendment
to the pleadings,
or informally, as in the present case, the scope of
the litigation is altered. Here the defendant sought to add new
issues specifically
relating to the validity of the amendment that
introduced the proviso. Up until then the parties were at one that
the proviso was
in force and available to be relied on by the Fund,
subject to the issues around its interpretation. If the plaintiff’s
rights
were frozen at the close of pleadings the basis would have
been that the proviso was in force. It would make a mockery of the
principles
of
litis contestatio
to permit Endumeni to depart
from its previous stance by challenging the validity of the proviso,
but to bind the Fund to a factual
situation at the close of pleadings
that had altered by the time that Endumeni sought to challenge the
validity of the proviso.”
[26]
He
also referred the court to the provisions of rule 29 (1).  This
sub-rule dictates the relevant scenarios in which pleadings
are
considered closed.  This occurs when:
“
(a)
either party has joined issue without alleging any new matter, and
without adding any further pleading;
(b)
the last day allowed for filing a replication or subsequent pleading
has elapsed and
it has not been filed;
(c)
the parties agree in writing that the pleadings are closed and such
agreement is filed
with the registrar; and
(d)
the parties are unable to agree as to the close of pleadings, and the
court upon the
application of a party declares them closed.”
[27]
In
casu
,
he submitted that the pleadings could not be regarded as closed for
purposes of assessing the question of trial readiness.
Rather
he suggested that the amendment re-opened the pleadings and that they
would remain open until after expiry of the appropriate
dies
.
The effect of this for present purposes, so he reasoned, meant not
only that the plaintiff still had time to file a replication
to the
amended plea, but that it remains open to her and the defendant to
still file expert notices and reports within 60/30 and
120/90 days
respectively after “the close of pleadings” which date, according
to him, is one still in the future.
[28]
His
underpinning for this view, namely that we are dealing with a fresh
litis
contestatio
so to speak, and a new anticipated moment of close of pleadings, is
the
dictum
in Natal Joint Municipal Pension Fund to the following effect:
“
The answer is that when pleadings are re-opened by
amendment or the issues between the parties altered informally, the
initial situation
of
litis contestatio
falls
away and is only restored once the issues have once more been defined
in the pleadings or in some other less formal manner.
That is
consistent with the circumstances in which the notion of
litis
contestatio
was conceived. In Roman law, once
this stage of proceedings was reached, a new obligation came into
existence between the parties,
to abide the result of the
adjudication of their case. Melius de Villiers
[23]
explains the situation as follows:
‘
Through litis contestation an action acquired
somewhat of the nature of a contract; a relation was created
resembling an agreement
between the parties to submit their
differences to judicial investigation …'
When the parties decide to add to
or alter the issues they are submitting to adjudication, then the
‘agreement’ in regard to those
issues is altered and the
consequences of their prior arrangement are altered accordingly.
Accordingly, when in this case they chose
to reformulate the issues
at the commencement of the trial, a fresh situation of
litis
contestatio
arose and
the rights of the Fund as plaintiff were fixed afresh on the basis of
the facts prevailing at that stage.”
[24]
[29]
It is
unnecessary in my view for me to consider whether the amendment to
the plea has in fact introduced a fresh situation of
litis
constestatio
in the manner envisaged by Wallis JA in Natal Joint Municipal Pension
Fund.
[25]
The issue of
the extent of the quantum was always in dispute on the pleadings.
The defendant by her amended plea has
simply sought to introduce a
different manner of payment and requests the court to develop the
common law so as to allow the quantum
to be paid periodically or in
instalments and/or to deliver services in kind.
[30]
Whilst
I accept that this produces an angle that was not there before and a
novel approach requiring the common law to be developed,
I cannot
agree from a case management perspective that the mere filing of the
amended plea altered the fixed date envisaged in rule
29 (1).
In any event, it appears that the court in Natal Joint Municipal
Pension Fund was concerned with a different issue,
namely the stage
at which the plaintiff’s rights in that instance were frozen.
The issue of relevance
in
casu
- from a practical point of view, is when the plaintiff could take
the next procedural step of setting a matter down for trial.
Clearly that moment has come and gone, which is how the plaintiff got
to the point of being allocated a trial date in the first place.
[31]
The
provisions of rule 28 dictate the process when an amendment is
introduced.  In this instance the defendant did not strictly
observe the provisions of sub-rule 7, but that is now water under the
bridge.  The plea in amended form has been delivered.
The
plaintiff is strictly afforded time to respond to the amendment, but
if the parties had bothered to engage with each other the
defendant
would have learnt that the plaintiff has no intention of formally
reacting to the amended plea.  The plaintiff’s
response was to
deliver the two expert reports dealing with the novel issues raised
by the amended plea to counter the defendant’s
argument that a
basis exists i
n
casu
to develop the common law.
[32]
The
defendant ought to have recognised this and got on with the job of
filing her own expert reports to lay the basis for the development
of
the common law.
[26]
Had
she done so, the parties would not have been in the position in which
they found themselves when the matter was called
on 16 November 2021.
Contrariwise, if she felt that time constraints were against her, she
ought to have pursued a formal application
to postpone the trial if
she felt that the plaintiff was being unreasonably obtuse to her
situation.
[33]
Both
parties are in my view somewhat to blame for the predicament.
The defendant could not have divined that the plaintiff was
not going
to formally react to her amended plea. The plaintiff should have said
something about the defendant getting on with perfecting
her
amendment if she felt aggrieved by this formal step not having been
taken, or have indicated that she was indeed not going to
make
capital of the late amendment.  At the very least the parties
should, from a case management perspective, have pertinently
discussed the way forward and not left it to the surmise of each
other concerning what was to ensue and when.  Both of them
have
an obligation to prepare properly and timeously and to meaningfully
input issues or any uncertainty that may still exist between
them at
trial roll call (if not earlier), using the customary mechanisms
available to them to ensure that judicial resources are
not wasted,
which is but one of the purposes of case management.  Parties
should not litigate carelessly or distinct from their
obligation to
meaningfully embrace case management.  The two key objectives of
case management in my view are to get cases through
the system as
expeditiously as possible, and to minimize the costs impact to the
litigants.
[34]
I
repeat my view indicated above that the filing of the defendant’s
amended plea ought not to have altered the fact that the pleadings
were closed ages ago in this matter (from a case management
perspective) and indeed this was the premise for the allocation of
the
trial date in the first place.  The position is that when a
pleading is amended after the traditional close of pleadings this
does not automatically alter the fact that the stage of close of
pleadings obtained in the first place.
[27]
[35]
In the
ordinary course a party amending his pleadings and putting the other
party out is responsible for any delays or consequential
costs
occasioned by an amendment.  I accept that the amendment is an
important one to the defendant and that it has become a
constitutional imperative for the State to consider and pursue
alternative means of making reparation in cases of medical
negligence.
[28]
However, that
does not mean that she, or any other State party for that matter, is
to be given a free pass and/or falls to be regarded
as exempt from
the ordinary rules of practice or the parties’ mutual obligation to
bring their part in professional case management.
[29]
[36]
It is
unfortunate in this instance that the defendant sought to pass off
her late reliance on the public healthcare defence as anything
but an
indulgence.
[37]
It is
necessary briefly in closing to have regard to the provisions of rule
36 (9) (a) and (b) concerning the filing of expert notices
and
reports since the advent of the new case management protocol.
The recently amended sub-rule provides as follows:
“
(9) No person shall, save with
the leave of the court or the consent of all parties to the suit, be
entitled to call as a witness
any person to give evidence as an
expert upon any matter upon which the evidence of expert witnesses
may be received unless—
(
a
) where the plaintiff
intends to call an expert, the plaintiff shall not more than 30 days
after the close of pleadings, or where
the defendant intends to call
the expert, the defendant shall not more than 60 days after the close
of pleadings, have delivered
notice of intention to call such expert;
and
(
b
) in the case of the
plaintiff not more than 90 days after the close of pleadings and in
the case of the defendant not more than 120
days after the close of
pleadings, such plaintiff or defendant shall have delivered a summary
of the expert’s opinion and the reasons
therefor:
Provided that the notice and
summary shall in any event be delivered before a first case
management conference held in terms of rules
37A (6) and (7) or as
directed by a case management judge.”
[38]
The
very fact that the sub-rule behoves the parties to exchange expert
notices and summaries before the first case management conference
suggests that the
dies
run from the date when the pleadings have traditionally closed.
It is rare I daresay that parties at present and especially
in damage
claims founded on the alleged medical negligence of public hospitals
strictly follow these timelines and file all their
reports before the
first case management conference but the important thing in my view
is that if they are speaking to one another
there should be no
misgivings about their respective intentions which are subjected to
scrutiny at the various levels of case management.
With the
question being pertinently posed in checklists and the obligation on
those appearing at trial roll call to make appropriate
submissions
regarding the matter’s final certification of trial readiness it is
hard to imagine a situation where there would not
be extensive
engagement between litigants concerning these issues. (Indeed, in a
scenario where the State is requesting the court
to develop the
common law one would expect that such engagement would be an absolute
imperative.) Often the reports are filed out
of time according to the
strict computation of time limits, but invariably the parties seek
each other’s consent to file reports
later, the ultimate emphasis
being on getting to the point where joint minutes can be obtained.
[39]
Concerning
the defendant’s claimed request for a postponement, it is in
dispute whether the request for the postponement came to
the
attention of the plaintiff’s attorneys at all.  The parties
were not in agreement that the exchange of correspondence
between
them bearing on this aspect be disclosed to the court, but I cannot
discern any malice on the part of the plaintiff’s attorneys
in this
respect.
[40]
However,
if the parties were speaking to each other as they ought, the
plaintiff may well have been inclined to allow the defendant
the
benefit of testing the waters so to speak concerning the ability of
the Eastern Cape Health Department to provide health care
services in
kind and to see how the court might be inclined to come to the
defendant’s assistance regarding the possibility for
delayed or
periodical payments. The request itself should not have been
perceived to be unreasonable, but that should in my view
have come
with an appropriate tender of wasted costs.
[41]
Regarding
the last ground of the defendant’s challenge to the trial readiness
of the matter, I do not find it a compelling argument
that the notice
and/or summary falls short for want of compliance with rule 36 (9)(a)
and (b).
[30]
In any
event it seems to me to be churlish to suggest this as a basis for
the lack of trial readiness when the parties have
not meaningfully
engaged with each other concerning more critical issues impacting on
this determination.
[42]
As I
said before, the plaintiff was also remiss in my view in engaging
meaningfully with the defendant concerning the true state of
trial
readiness of the matter. It wasn’t a choice of hers to shun the
mutuality that professional case management requires. I intend
to
reflect the court’s displeasure in this respect in the costs order
which I make below.  On the other hand, it was the defendant’s
tardiness and lack of appreciation of her own state of unpreparedness
that was causal to my order removing the matter from the roll,
which
conduct contributed in greater measure to the fact that the matter
could not proceed on the trial date.  I am further
not impressed
that instead of conceding a need to have the matter postponed, the
defendant instead sought to raise the technical
objections which she
did to avoid responsibility for the wasted costs once it appeared
that a postponement was necessary and inevitable.
[43]
In the
result I issue an order in the following terms:
1.
The
matter is removed from the trial roll.
2.
The
defendant is liable for 80% of the wasted costs occasioned by the
removal of the matter from the trial roll, the full costs complement
to include the costs of second counsel.
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING:
16 November 2021
DATE OF JUDGMENT:
30 November 2021*
*Judgment delivered
electronically on this date by email to the parties.
APPEARANCES
:
For the
plaintiff:   Mr. N R Mtshabe and Ms. T  Mduba
instructed by Dudula Attorneys care of Mlonyeni & Lesele
Inc.,
King William’s Town (ref. Mr. E Simaya.)
For the
respondent: Mr. M H Sishuba instructed by The State Attorney, East
London (ref. Mr B Tongo.)
[1]
A merits judgment in favour of the plaintiff was delivered on 21 May
2019.
[2]
The matter was ostensibly enrolled for hearing on the printed trial
roll for 15 November 2021, but my clerk was informed by one
of the
parties that this was a mistake.  The matter was called again
on 16 November 2021 when the parties appeared before
me.
[3]
This Directive was issued by the Judge President of the Eastern Cape
Division on 25 June 2019.
[4]
This was the expectation in paragraph 1 of the Eastern Cape Joint
Rules of Practice even before the advent of case management.
The provision remains of application and enjoins the parties to
remain in constant communication and co-operation right up to the
date of the trial.
[5]
Ideally a substantive application for the removal (or a
postponement) of the matter ought to have been made by the defendant
because
there was no narrative before me of the relevant events
bearing specifically on the question of costs.  Instead, I had
to
trawl through the court file to glean what had supposedly
happened, and when, to supplement the information provided by
counsel.
There were also conflicting “versions” offered to
me from the bar as to what had conduced to the state of trial
unreadiness
and more importantly who was responsible therefor, which
“dispute” I realised would not be capable of being resolved in
the
customary fashion. I am however mindful of the fact that the
very objective of case management and of the requirement that civil
matters be subjected to trial roll call four weeks before the
allocated hearing date, are measures among others to expedite the
finalisation of trials and that a robust approach is called for to
assess whether the parties have substantially complied with
the
Uniform Rules and the matter is in fact ripe for adjudication on the
trial date.  The tenor of the provisions of Rule
37A, read
together with Case Management Directive of this division and the
questions posed to the parties in the relevant checklists
filed in
anticipation of the trial roll call hearing, make it plain that the
primary responsibility is on the litigating parties
to manage the
case and prepare for trial. The Judge concerned should therefore be
able to rely on their assurances endorsed in
the trial minutes, or
recorded in the checklist(s), or given orally at the trial roll call
hearing, as to the state of trial readiness
and to accept these at
face value.  This should therefore eschew the need for
unnecessary applications when situations arise,
as they will,
requiring some introspection into the question of trial readiness
and who or what conduced to that state especially
if a punitive
costs order is being sought.  An overly formal approach will
obviously retard the objectives of case management
and add to the
costs of the litigation. in the result I dealt with the matter
practically as a preliminary objection by the defendant
to the trial
proceeding, if not as a “further roll call hearing” such as is
envisaged in the Case Management Practice Directive
albeit such
hearing had perforce to be entertained at the doors of the trial
court.   I also had to accept at face value
the suggestion
that the defendant’s interests had not been properly represented
at the roll call hearing by her “absence”.
[6]
The “Public Health Care Defence” requires a development of the
common law. MEC for Health & Social Development, Gauteng
v DZ
obo WZ (“DZ”)
2018 (1) SA 335
(CC) at paras [44] – [59].
[7]
DZ
Supra
at paras [24] and [25].
[8]
The matter of Noyila ran for two weeks from 16
November 2021 and then stood adjourned until March next year.
[9]
Since I was not shown the letter, it is uncertain
whether the defendant tendered wasted costs.
[10]
Two checklists appear from the file, the last one dated 9 November
2021.  It was signed by both the plaintiff and the defendant’s
attorneys in support of the submission that “the matter is trial
ready”.  The checklist was filed together with the parties’
Joint Practice Note (also signed by both sets of attorneys) but
rather unfortunately suggests a perfunctory dealing with the matter
because it related the names of the expert witnesses who would
testify in respect of the
merits
, whereas the merits have
already been disposed of by way of a judgment and order of this
court dated 21 May 2021.  It is regrettable
that parties are
not applying their minds to the true objective of case management,
but rather are simply going through the motions
at trial roll call
hearings. It is significant that absolutely no mention is made in
either as to a necessary, or even possible,
postponement.
[11]
See rule 37A quoted above which sets out the pre-requisites
applicable to the enrolment of matters for trial.
[12]
Since 1 July 2019 stringent case management processes have been in
place in this Division.  The registrar is obliged to wait
for a
judge’s certification before any action is enrolled for hearing.
[13]
See paragraph 3.10 of the Practice Directive on Judicial Case
Management.
[14]
Van
Heerden v Van Heerden
1977 (3) SA 455
(W) at 457G – 458A; Fiat SA
(Pty) Ltd v Bill Troskie Motors
1985 (1) SA 355
(O) at 358 (C).
[15]
Presto Parcels v Lalla 1990 (3) SA 287 (E).
[16]
DZ
Supra
at [20] to [23]; MSM obo KBM v Member of the
Executive Council for Health, Gauteng Provincial Government (“MSM”)
2020 (2) SA 567
(GJ) at paras [23] to [36].
[17]
DZ and MSM
Supra
.
[18]
The defendant should also ideally have filed a notice
in terms of rule 16A
.
MSM
Supra
at paras [10] to [15].
[19]
MEC for Health & Social Development, Gauteng v DZ obo WZ Supra
at paras [20] and [23].
[20]
2012 (4) SA 593
(SCA) at para [14].
[21]
JAC Thomas Textbook on the Roman Law, Chapter VII on the formulary
process. P van Warmelo An Introduction to the Principles of
Roman
Civil Law at 278, para 733.
[22]
Government of the Republic of South Africa v Ngubane
1972 (2) SA 601
(A) at 608D-E.
[23]
Melius de Villiers The Roman and Roman Dutch Law of Injuries 236.
[24]
Supra
at para [15].
[25]
Supra
.
[26]
DZ
Supra
at
[36] and [57] to [59].
[27]
Potgieter v Sustein (Edms) Bpk
1990 (2) SA 15
(T) at 20C.
[28]
MSM
Supra
.
[29]
In MEC for Health, Gauteng Provincial Government v PN
2021 (6) BCLR
584
(CC) at para [26] the Constitutional Court reaffirmed this
principle that High Courts have the power to develop the common law

and that the MEC for Health can,
where the issue of damages has
not yet been finalized
, amend his/her plea to request that the
common law be developed (assuming a proper factual foundation exists
therefor), whether
the action was issued, or the merits decided
before DZ.
[30]
It was open to the defendant to rely on the provisions of paragraph
2 (c) of the Joint Rules of Practice if she felt aggrieved
by the
summary of either expert relied upon by the plaintiff.