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[2015] ZAGPPHC 207
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Netcare Pretoria One (Pty) Ltd v Roelofse (50314/2007) [2015] ZAGPPHC 207 (3 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
50314/2007
In the matter
between:
NETCARE PRETORIA
ONE (PTY)
LTD
..........................................................;....................
APPLICANT
AND
MARIA ELIZABETH
ROELOFSE
......................................................................................
RESPONDENT
In Re:
MARIA ELIZABETH
ROELOFSE
............................................................................................
PLAINTIFF
AND
DR F DE V
THERON
...................................................................................................
FIRST
DEFENDANT
DR JM
DIPPENAAR
...............................................................................................
SECOND
DEFENDANT
NETCARE PRETORIA
ONE (PTY)
LTD
................................................................
THIRD
DEFENDANT
DRS MYBURG AND
OOSTHUIZEN
INC
..........................................................
FOURTH
DEFENDANT
ME STELLA-MARIA
BOTHA (PREVIOUSLY
NEL)
............................................
FIFTH
DEFENDANT
JUDGMENT
WEBSTER J
1. This application
was brought on unopposed bases in the unopposed motion court. The
applicant seeks an order in the following
terms:
“
1.
The respondent/plaintiff’s action against the applicant/third
defendant brought under the above case number be dismissed;
2. Directing the
respondent/plaintiff, alternatively the respondent’s/plaintiff’s
attorneys of record to pay the costs
of this application;
3. Directing the
respondent/plaintiff to pay the costs of the action in favour of the
third defendant"
2. The respondent
instituted an action against the applicant and four other defendants
in the amount of R1 062 368.52 plus interest
and costs during October
2007. The claim arose from injuries suffered by the respondent when
she fell from a theatre bed on 5 November
2004.
3.
The deponent to the founding affidavit, Sandra Sithole, stated that
she is the attorney for the applicant in this application
and third
defendant in the main action. According to her affidavit the only
progress made in the main action from date of institution
until the
plaintiffs attorneys of record, Groenewald van Dyk Attorneys withdrew
in February 2011 was that the plaintiff applied
for a trial date and
was allocated 25 November 2011 as the trial date. The applicant’s
attorneys were informed by MacRobert
Attorneys acting for the other
defendants on 31 January 2011 that the plaintiff had passed away.
Applicant’s attorneys established
that the executrix was who
was appointed to administer the estate of the plaintiff was Margareth
Hanelore Bronkhorst. Applicant’s
attorneys were informed that
the beneficiaries of the estate are consulting attorneys
“
...to
obtain legal
advice regarding the merits of proceeding with the claim."
4.
Subsequent thereto and on 10 November 2011 Adams and Adams Attorneys
informed the applicant’s attorneys that
“
...they
had been instructed by the family of the plaintiff to advise them
with regard to the continuation of the matter and requesting
a
removal of the matter from the trial roll of 25 November 2011".
5.
On 6 March 2012 a letter from Adams and Adams Attorneys confirmed
that their “client” wished to proceed with the
action.
They undertook to take all the necessary steps in preparation for
trial. They also made it known that they were
“
...preparing
a notice of amendment so as to make provision for the plaintiffs
demise”.
No
action was seemingly taken in this regard.
6. Eight months
later a pre-trial conference was convened on 6 November 2012 and on 7
November 2012 an order to compel was granted
in favour of the
defendants in the main action. To date there has not been compliance
with this order nor has there been any progress
in the matter.
7. The applicant
based its request to have the plaintiffs action dismissed on the
following grounds:
“
37.1
Non-compliance with the court order of
7
November 2012
compelling the plaintiff to discover;
37.2
Alternatively, on the basis that there is no claim for the third
defendant to answer to because the plaintiff is non-existent
and
there has been no notice to substitute the executor for the plaintiff
since the plaintiff’s death on 22 October 2010.
Furthermore,
the final liquidation and distribution account has been lodged and
the executrix would have been discharged of her
functions thus
rendering her functus officio and having no locus standi to pursue
the action in her capacity as the executrix of
the plaintiffs
estate.”
8. On a
consideration of the premises set out above, the court is of the view
that the applicant is entitled to the relief set out
in the Notice of
Motion.
9. The following
order is accordingly granted:
IT IS ORDERED:
1. THAT the
respondent/plaintiff’s action against the applicant/third
defendant brought under case number 50314/2007 be and
is hereby
dismissed;
2. THAT the
respondent/plaintiff, alternatively the respondent/plaintiffs
attorneys of record pay the costs of this application;
3. THAT the
respondent/plaintiff pay the costs of the action in favour of the
third defendant.
G. WEBSTER
JUDGE IN THE HIGH
COURT