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[2018] ZAGPPHC 59
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Marasiro v Member For The Executive Council For Health Gauteng (41629/2014) [2018] ZAGPPHC 59 (6 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case No. 41629/2014
6/3/2018
In
the matter between:
MARASIRO, RUDO
PRESCILLA
APPLICANT
and
MEMBER FOR THE EXECUTIVE
COUNCIL
RESPONDENT
FOR HEALTH GAUTENG
JUDGMENT
MILLAR
AJ
1.
The
applicant applied to compel the respondent to deliver a proper
response to a request for further particulars for purposes of
trial,
in terms of rule 21 of the uniform rules of court.
2.
The
main action, in which the applicant is the plaintiff and the
respondent the defendant, is one for damages arising out of the
alleged negligence of the respondent and its employees at the time of
the birth of the applicant's minor child.
3.
The
minor child is profoundly disabled and will never be able to live
independently. The outcome of action is accordingly one of
great
importance to the applicant and to the interests of the minor child.
4.
The
main action was set down for trial and pursuant thereto the
respondent delivered three expert medico legal reports shortly before
the trial. It is the contents of these reports that prompted the
applicant to request further particulars for trial.
5.
The
present application is the result of attempts over the period June
2016 to September 2016 on the part of the applicant to obtain
the
particulars she sought. A first request was delivered on 2 June 2016
and a reply delivered on 28 September 2016. The reply
was inadequate
and so on 30 September 2016, the applicant delivered a further
request in which she set out which of the particulars
she asserted
had been properly replied to and which not.
6.
The
particulars still sought, in the main relate to the identity of
persons who treated the minor or wrote or completed forms which
comprise the medical records relating to the birth of the minor
child. So, for example paragraph 2 of the request read:
" Defendant is required to
identify which of the above personnel completed (wrote down) the
following entries appearing in
the records, as this information does
not legibly appear therein. For ease of reference, the page number of
the documents bundle
is noted and
a
paginated copy
thereof is attached hereto to avoid confusion. If the person who
completed the entry is not the same as the signatory
to the entry,
the name of the person who completed the entry and also the person
who signed the entry is requested. If different
persons are involved,
a
clear
indication of each entry is required. Plaintiff will accept clear
handwritten notes in red pen/marker alongside respective
entries, in
order to avoid confusion."
7.
The
applicant went so far as to draw the respondent's attention to the
specific requests where particulars had not been forthcoming
and even
provided an indication as to why those particulars were necessary -
for example in paragraph 5.6 of the request stating
"
The relevance of the question is that such observations are
indicative of the important issue of 'neonatal encephalopathy"
8.
The
respondents reply to this detailed request
was:
“
Th
e particularity sought therein amounts to evidence. It is accordingly
refused .”
9.
The
purpose of requesting further particulars for trial is
"(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 a/legations"
see
Thompson v Barclays Bank D.C.O
1965
(1) SA 365
0N) at 369 C-D.
10.
Furthermore
it was held in
Schmidt Plant hire
(Pty) Ltd v Pedrelli
1990 (1) SA 398
(D) at 402 -403 that"...
the
Court is entitled in an enquiry such as the present to go beyond the
pleadings and look at the matter forming part of the record
such as
expert witnesses' summaries and even (as in this case) evidence at an
earlier hearing which forms part of the record, since
the pleadings
alone do not necessarily contain sufficient to determine whether
a
party may be taken by surprise and
what the other party intends to prove in the circumstances referred
to in Thompson's
case
supra.
Not to have regard to matter such
as
expert summaries filed of record
wherein information sought may be adequately set out would, in my
view, be an unduly blinkered
approach and not
a
proper application of the test in
Thompson's case since such summaries might well remove the element of
surprise and show what is
sought to be proved."
11.
I
am of the
view
that
the identity of parties to documents, particularly where those
documents, the medical records in the present case, are to be
considered and tested with reference to expert evidence, are not
matters for evidence in the sense asserted by the respondent.
Even if
they were, it would still not entitle the respondent to refuse to
furnish the particulars sought.
(Annandale
v Bates
1956 (3) SA 549
0N) at 551.)
12.
In its reply to the first request, the
respondent did provide some of the particularity sought, which seems
to me to overlap with
what was not furnished and it is for that
reason difficult to imagine what prejudice there could be to the
respondent in furnishing
all the particulars requested.
13.
The
respondent has provided no cogent reason as to why some of the
particulars were furnished and others, of the same nature, not.
It
contented itself to simply state that the applicant must prove the
averments of negligence in the main action.
14.
The
applicant argued for the granting of a punitive costs order in this
application. The various previous punitive orders granted
against the
respondent in the same matter, amounting to hundreds of thousands of
Rand were argued, point to ma/a
tides
and a course of conduct. While that
may be, it is not something to be taken into account in the present
application. The respondent
did reply to the request albeit in a
manner that was unsatisfactory to the applicant. The fact that some
of the particulars were
furnished in the first reply to my mind
militates against a finding of ma/a
tides.
15.
The
respondent failed to file any heads of argument or a practice note in
this matter. There was furthermore no appearance for the
respondent.
Counsel for the applicant informed me that heads of argument dated 24
January 2018 had been delivered to his attorney
on 28 February. He
also attempted, this morning and shortly before the matter was
called, to contact counsel, the author of the
heads who he was
informed was on an airplane flight. Calls to the attorney went to
voicemail. In my view the applicant should not
have to bear the costs
of an opposed application in consequence of the tardiness of the
respondent.
16.
In
the circumstances I make the following order:
16.1
The
respondent is ordered to furnish the particulars sought by the
applicant in paragraphs 2 to 6 (including their respective
sub-paragraphs)
of the request for further particulars for trial
dated 30 September 2016.
16.2
The
particulars referred to in paragraph 1K.1 above are to be delivered
within 10 days of the service of a copy of this judgment
upon the
respondent.
16.3
In
the event of non-compliance, the applicant is granted leave to apply
to this court on the same papers, duly supplemented, for
further
relief.
16.4
The
respondent is ordered to pay the costs of this application on the
scale as between attorney and client.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
6MARCH 2018
JUDGMENT
DELIVERED ON:
6 MARCH 2018
COUNSEL
FOR THE APPLICANT: ADV B
STEYN
INSTRUCTED
BY:
GARY AUSTIN INC.
REFERENCE:
MR G AUSTIN
COUNSEL
FOR THE RESPONDENT: NO APPEARANCE
INSTRUCTED
BY:
MOTHLE JOOMA SABDIA INC.
REFERENCE:
MR T MOTHLE