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[2014] ZAFSHC 92
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Meredith v Grobler (3589/2005) [2014] ZAFSHC 92 (12 June 2014)
12FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 3589/2005
In
the matter between:
JANET
LEE
MEREDITH
.........................................................................................................
Plaintiff
and
DR
STEPHEN
GROBLER
.......................................................................................................
Defendant
JUDGEMENT:
LEKALE, J
HEARD
ON:
30 MAY 2014
DELIVERED
ON:
12 JUNE 2014
INTRODUCTION
AND BACKGROUND
[1]
This is an exception against defendant’s special plea of
unreasonable and prejudicial delay in the prosecution of an action
on
essentially the ground that such a plea does not set out sufficient
facts to sustain the same.
[2]
The plaintiff issued summons against the defendant on the 19
th
August 2005 for damages in the amount R1 160 000,00 arising
from alleged medical negligence. Defendant defends
the action
and pleadings got closed in January 2006 after the defendant’s
general plea was served during December 2005.
[3]
In March 2006 defendant served a rule 35 notice on plaintiff’s
attorneys but they failed to oblige and eventually withdrew
as her
attorneys of record on the 27
th
June 2006. Defendant, thereafter, attempted in vain during July
2006 to serve an application to compel the plaintiff to comply
with
the notice in question.
[4]
On the 13
th
June 2012 plaintiff’s present attorneys placed themselves on
record. On the 28
th
May 2013 plaintiff’s attorneys served an application for trial
dates on defendant’s attorneys. Defendant, thereafter,
served a special plea herein on plaintiff’s attorneys on the
5
th
September 2013. On the 6
th
February 2014 plaintiff’s attorneys, on their part, delivered
an exception to the special plea in question.
[5]
After hearing the exception on the 30
th
May 2014 I was left in doubt as to whether or not same was delivered
timeously within the time limited by Rule 23(1) of the Uniform
Rules
of Court. I, therefore, caused a letter to be directed to the
parties inviting inputs on the issue. The parties
have
gratefully since obliged effectively pointing out that
the relevant period was extended by agreement.
DISPUTE
[6]
The parties are at variance on whether or not the special plea
discloses a defence with the plaintiff contending that the same
lacks
sufficient facts to sustain the special defence raised in that the
facts proving serious prejudice have not been disclosed.
On his
part the defendant maintains that the special plea meets the
prerequisites for the relevant defence.
CONTENTIONS
FOR THE PARTIES
[7]
Ms Letzler, for the plaintiff, submits that insofar as the defendant
avers, in the relevant pleading, that he is seriously prejudiced
by
the delay in that he has to testify on an incident which occurred in
the period 28
th
August 2002 to 1
st
October 2002 without alleging why testifying on such an incident
would be prejudicial to him the special plea does not disclose
a
defence.
[8]
On behalf of defendant, Mr Joubert painstakingly points out
that the special plea contains all the three averments recognised
by
law as necessary to sustain the defence of unreasonable and
prejudicial delay in prosecuting an action insofar as
it,
inter
alia
, alleges that the defendant is
seriously prejudiced by the delay in that he has to testify about a
surgical procedure which was
performed during 2002.
APPLICABLE
LEGAL PRINCIPLES
[9]
The parties are correctly
ad idem
that, for the relevant plea to be sustained, the defendant needs to
prove that there was an inordinate or unreasonable delay in
the
prosecution of the action, that the delay in question was inexcusable
and that the defendant is likely to be seriously prejudiced
thereby.
(See:
Cassimjee v The Minister of Finance
2014 (3) SA 198
(SCA).)
[10]
The duty on the plaintiff, as the excipient, is to show that the
relevant pleading discloses no defence on every construction
that can
reasonably possibly be placed on it.
See:
First National Bank of Southern
Africa Ltd v Perry NO and Others
2001 (3) SA 960
(SCA) at 965C – D.)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[11]
The question in the instant matter is, in my judgment, whether or not
the allegations contained in the special plea are such
as to sustain
the same if and when they are eventually proved at the trial of the
matter. In other words the issue is whether or
not the elements or
pre-requisites of the relevant plea or defence are apparent from the
impugned pleading.
(Compare:
Grant v Plumbers (Pty) Ltd
1949(2)
SA 470 (O) )
[12]
It is common cause between the parties that the cause of defendant’s
grief, as set out in the relevant pleading, is the
alleged abuse of
process by the plaintiff in delaying to prosecute the action
resulting in the defendant having to give evidence
on technical
surgical procedures more than 11 years later. All the
aforegoing can be gleaned from the impugned pleading.
[13]
The plaintiff feels that the fact that the defendant has to testify
about an incident long after its occurrence is not
per
se
prejudicial and that the defendant
needed to assert more in order to sustain the conclusion that he is
seriously prejudiced.
In my view the question as to whether or
not the defendant is seriously prejudiced by the delay involved does
not arise for determination
in the present proceedings and falls to
be dealt with at the hearing of the special plea itself. As Mr
Joubert correctly
and effectively points out, the material facts
(
facta probanda
)
that must be proved, as opposed to the
facta
probanti
a necessary to prove the same,
are sufficiently set out in the relevant pleading insofar as the
prerequisites of the relevant defence
are apparent from the pleading
itself.
(See:
Makgae v Sentraboer (Koöperatief)
Bpk
1981 (4) SA 239
(T) at 245D.)
[14]
I am, thus, satisfied that all the material facts or issues (facta
probanda) that the defendant needs to prove in order to
sustain his
special plea are apparent
ex facie
the relevant pleading.
ORDER:
[15]
The exception is dismissed with costs.
______________
L.
J. LEKALE, J
On behalf of
plaintiff: Adv M Letzler
Instructed
by:
Houghton
Harper Inc
c/o
Mthembu Van Vuuren
BLOEMFONTEIN
On
behalf of defendant: Adv Salie Joubert SC
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN