SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: 8617/2019
In the matter between:
O[...] S[...] N[...] OBO R[...] J[...] Applicant/ Plaintiff
and
MOEGAMAT SHADLEY CHILWAN Respondent/ Defendant
______________________________________________________________________
ORDER
______________________________________________________________________
PARKER, AJ:
1. The application for leave to file the expert report of Mr Anton Krause, an
Occupational Health and Safety Specialist, is granted.
2. The further conduct of the hearing be managed through a case flow management
meeting convened on a date to be agreed.
3. Costs stand over for later determination to the end of the merits hearing.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
[1] This opposed interlocutory application brought by the plaintiff to obtain leave of
the court in terms of rule 27(1) for the extension of time for the filing of an expert report
by Mr. Anton Krause, who is an Occupational Health and Safety Specialist, as
contemplated i n terms of rule 36(9) of the Uniform Rules of Court. The application is
opposed by the defendant on several grounds.
[2] The issues for determination are:
2.1 Whether the applicant has demonstrated good cause;
2.2 Whether there is a bona fide explanation for the delay;
2.3 Whether the order the court intends to grant will prejudice the respondent,
and,
2.4 Who bears the costs?
[3] The applicant instituted action against the respondent when the entrance gate to
the premises of the respondent became dislodged and toppled directly over and on top
of the applicant's minor child. The applicant pleaded that the incident was wrongfully
and negligently caused by the respondent in that he, inter alia, failed to take reaso nable
precautions to ensure that the gate was safe for use by members of the public. The trial
commenced on 18 February 2025 and one witness testified. An inspection in loco was
conducted on the same day. The trial was postponed for a further hearing to 25 March
2025, on which date, and, at the request of the respondent, the parties agreed that a
witness for the respondent would lead evidence as she would leave the country and
would not be available when required to testify. On this basis , the court heard t he
evidence of Ms. Van Rhyn.
[4] At the inspection in loco, the respondent drew the attention to a position where a
bracket had been present at the time of the incident, shown by various holes in the
puller where the gate normally closes. Ms. Van Rhyn's testimony was that she was not
present when the incident occurred , however she led evidence on the use of the gate,
which was generally observed as dangerous. It was also her testimony that she denied
that there was a bracket in place as pointed out at th e inspection in loco. Rather, she
testified that there was a stopper in place which was mounted at the bottom of the wall
at the end of the gate trap.
[5] Following this, a decision was taken by the applicant to procure an expert opinion
since there was conflicting evidence regarding the stabilizing features which were in
place at the time of the incident. The applicant believes that an expert would provide the
court to understand the issue arising, more so, the crucial question as to whether the
gate wa s dangerous and if so, what the reasons were for such a determination. The
expert could similarly opine on the precautions that could have been in place to ensure
that the gate was safe.
[6] Of relevance to the application are two rules. One is Rule 36 ( 9) of the Uniform
Rules of Court which was amended in 2019 1. The thrust of the rule is that no person
shall, save with the leave of the court or the consent of all parties to a suit , be entitled
to call as a witness any person to give evidence of an expert nature, unless the party
intending to call the expert complies with the requisite time periods specified in the rule,
including a summary of the expert's opinion and the reasons t herefore. Provided that
the notice and summary shall in any event be delivered before a case management
the notice and summary shall in any event be delivered before a case management
conference held in terms of Rules 37A (6) and (7) or as directed by the judge.
1For the purposes of this interlocutory application the full extent of rule 36(9) will not be set out, however
the relevant provisions are 36(9) a (I) and (ii).
[7] As a result of the evidence led by Ms. Van Rhyn , the applicant addressed a letter
to the respondent to obtain consent to file the report of Mr. Krause, which consent was
denied. The respondent is of the view that the decision to appoint an expert was late
and more so because the applicant has to demonstrate good cause whi ch includes a
full explanation for the default and further, be bona fide. Further, the purported expert
report provided is unnecessary because if the applicant believes that the evidence is
such that the admission which has been made by the two witnesses t hat the gate was
dangerous, there is no need to call an expert witness. Nevertheless, the safeness or not
of the gate and the sufficiency of the stabilizing features was central to the case. The
evidence of Ms. Van Rhyn did not change the applicant's case and it did not change
what the applicant knew it had to prove. Accordingly, the applicant's explanation is not
reasonably advanced since nothing in the evidence has changed anything in respect of
the pleaded case.
[8] The respondent's view with regard to the explanation tendered as to why it was
not anticipated that expert evidence would be needed , was not enough. I will elaborate
further on this aspect when dealing with the applicant's averments regarding their
financial constraints.
[9] The applicant attributes the respondent's denial to give consent to the filing of the
expert's report due to the findings of the expert levelled against the respondent.
[10] In turning to the applicability and extent of Rule 36(9)(a), the applicant referred
to the impracticalities of the new timelines which was addressed in the Gauteng Local
Division, Johannesburg, where, in terms of its Practice Directive 6.6, provides for
extended time periods which parties must comply with in all matters where expert
notices and summaries must be delivered 2. Thus , the applicant argues it would be
notices and summaries must be delivered 2. Thus , the applicant argues it would be
2 The practice note provides that whenever it appears on reasonable grounds that the time periods were
filing and exchanging of expert notices and the reports are in the circum stances of the case inadequate
subject to the directives in paragraph 6.15 of the manual the parties may by agreement concluded within
30 days of close of pleadings vary the times for compliance.
unfair to preclude a party from calling expert evidence upon his or her failure to comply
strictly with the rule3.
[11] The applicability of the second rule and without citing the full extent of Rule 27, in
Du Plooy v Anwes Motors (EDMS) Bpk4 and Wapnick & Another v Durban City Garage
& Others5. The rule affords the court a wide discretion4 in instances where the parties
are not able to reach an agreement. The court may upon application or notice and on
good cause shown, make an order extending or abridging any time period prescribed by
the rules or by an order of court, including taking st eps in connection with any
proceedings of any nature whatsoever upon such terms as the court deems meet .6 This
includes any extension as to the recalling, varying or cancelling of results of the expiry
of any time so prescribed or fixed; whether such results flow from the terms of any order
from these rules .7 The court may on good cause shown, condone any noncompliance
with these rules.8
[12] The applicant is required to show that it has good cause and have tendered an
explanation for the default to e nable the court to understand how it occurred9 and
further that the explanation tendered is bona fide and not patently unfounded .10 The
applicant relied on certain references in the transcribed record.11 The explanation for the
default was not accepted by the respondent in keeping with Ingosstrakh v Global
Aviation12 Further, that the application is brought at a very late stage of the proceedings
and was not considered prior to the evidence of Ms. Van Rhyn.
3 Coopers SA (Pty) Ltd v Deutsche Gesel lschaft Fũr Schädings bekämfung mbH 1967(3) SA 352(A) at
373D-H
4 1983(4) SA 212 (O) at 216H-217A
5 1984(2) SA 414 (D) at 423H-424B
6 Rule 27(1)
7 Rule 27(2)
8 Rule 27(3)
9 Silber v Ozen Wholesalers (Pty)Ltd 1954 (2) SA 345(A) at 353A
10 Ingosstrakh v Global Aviation 2021 (6) SA 352 (SCA) at 360 D-E
11Transcript: as to the use of the words "dangerous ", and “stopper”
12Supra para [21]
[13] Applicant has made a submission that nothing prevents the respondent from
filing their own expert report if they deem it necessary. The various objections raised by
the respondent particularly that at the case management stage , the applicant had not
indicated that it was intending to call an expert witness. Applicant countered this due to
the financial constraints of client and having accepted the brief on a contingency basis ,
it was not in a financial position to finance the litigation. This argument was rejected as
the respondent argues that applicant has now nevertheless , found the finances to do
so.
[14] In researching a definition of "good cause", I agree with the submissions made by
the applicant that the courts have refrained from attempting to formulate an exhaustive
definition of what constitutes "good cause." It makes sense to do so because it would
hamper the ex ercise of the court’s discretion.13 I do not believe that the applicant had
intentions of delaying the trial, as it simply would make no sense to do so.
[15] It is trite that in the ordinary course , where party is responsible for a
postponement, that the party should bear the wasted costs .14 The respondent is
cognizant that if the costs of the application or the wasted costs of the postponement of
the further trial are awarded against the applicant, the danger exists that the respondent
run the risk that it will not be compensated for , by such an order for costs, thus adding
to the possible prejudice suffered by the respondent. The authorities have shown that
the indulgence sought must not prejudice t he other party in a way that cannot be
compensated for by a suitable order as to postponement and costs. Hence , it may be
appropriate under these circumstances for costs to stand over for later determination.
[16] Rule 36(9 ) (a) as amended anticipates t hat a plaintiff who decides it requires an
expert on the basis of pleadings is to be done shortly after the close of pleadings.
expert on the basis of pleadings is to be done shortly after the close of pleadings.
Ordinarily, a plaintiff is not therefore entitled to wait to hear what the evidence is led by a
defendant's witness before decid ing whether to appoint an expert. It was only because
13 Ibid Silber at 353A
14Persadh and Another v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SE) at 459G
Ms. Van Rhyn was interposed that the applicant happened to hear her evidence before
it closed its case.
[17] In following the Constitutional Court in Pickfords 15 reinforced that condonation is
not a mere formality and good cause must be shown.
“. Courts are afforded a wide discretion in evaluating what constitutes ‘good
cause’ so as to ensure that justice is done. Ultimately, the overriding
consideration is the interests of justic e, which must be considered on the facts of
each case.”
[18] Pickfords,16 also in applying the overriding consideration of the interests of
justice, which must be considered on the facts of each case.
“Factors germane to this enquiry may include the exten t and the cause of the
delay; the effect of the delay on the administration of justice and other litigants;
the reasonableness of the explanation for the delay; the issue(s) to be raised in
the matter; and the prospects of success”.
[19] After carefully considering the submissions made by both counsels, and on
consideration of all the facts, and in the exercise of the court’s wide discretion and the
interest of justice considerations under section 34 of the right of access to courts, it is
reasonable to conclude that the applicant has succeeded on having shown good cause.
There are times such as this matter, when procedural errors should not be allowed to
obstruct substantive justice, even when those errors are solely caused by that party
seeking condonation, on good grounds having been demonstrated. I am not of the view
that the applicant was reckless or had an intentional disregard of the rules of court.17 I
also cannot disregard the importance of the matter for the applicant, and the respondent
and the applicant's prospect of success and the importance of the issue to be
15Competition Commission of SA v Pickfords Removals SA (Pty) Ltd 2021 (3) SA 1 (CC) at para [54]
16 Ibid
17Junkeeparsad v Solomon (37003/2019, 37456/2019) [2021] ZAGPJHC 48 (7May 2021) at para [6]
determined. These are all relevant factors .18 Under the prevailing submissions to refuse
a litigant to instruct an expert is such that rule 36 (9) discriminates against litigants who
do not have the financial means to instruct experts. I reiterate that it is in the interest of
justice to condone the late delivery of the notice in terms of Rule 36(9) (a) and (b) where
it appears that a refusal may lead to injustice
[20] I agree that it could surely not have been the purpose of the amended rule to
exclude litigants without the financial means to file expert reports at a later stage,
bearing in mind that we are still at liability stage, we have not even reached the
quantum hearing. Giv en the evidence led thus far and the contradictory nature of the
evidence in relation to the stabilizing features that an expert would be necessary not
only for the benefit of the parties but ultimately for the benefit of this court.
[21] I do not accept that the applicant's expert evidence is an attempt to tailor the
evidence since the respondent is still at liberty to cross examine the expert and
therefore, it is too early to say it was tailored.
[22] As for costs, respondent argued that the applicatio n is to be dismissed with costs
to be awarded against the applicant, including the wasted costs of the postponement
brought about by this application. The applicant argued that the objections raised were
purely a technical grounded opposition, was unreason able, and the respondent should
have accepted the invitation when it requested same. The respondent however, at the
get go, refused to give it consideration, and therefore, the costs brought about by this
application, if successful , are directly attributab le to the respondent's conduct in its
unreasonable opposition to the filing of the expert report , especially since the applicant
made various attempts to procure the consent . I deem it prudent to make a
determination on costs later.
[23] Accordingly, it is ordered:
determination on costs later.
[23] Accordingly, it is ordered:
18 Ferris s v First Rand Bank Ltd 2014 (3) SA 39(CC) at 43G-44A
1. The application for leave to file the expert report of Mr Anton Krause, an
Occupational Health and Safety Specialist is granted.
2. The further conduct of the hearing be managed through a case flow
management meeting convened on a date to be agreed.
3. Costs stand over for later determination to the end of the merits hearing.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for Applicant: Adv E Benade
Instructing Attorney: Daneil Botha, Holly Wynne (DSC Attorneys)
Counsel for Respondent: Adv D G Whitcomb
Instructing Attorney: Hannes Stimie (Stimie Attorneys)