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[2013] ZAWCHC 197
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Van Den Heever v Netcare Cape (Pty) Ltd and Another (21453/10) [2013] ZAWCHC 197 (8 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 21453/10
DATE:
08 NOVEMBER 2013
In
the matter between:
MICHAEL
DAVID VAN DEN
HEEVER
.................................................
Plaintiff
In
his representative capacity on behalf of
Pierre
van den Heever
And
NETCARE
CAPE (PTY)
LTD
........................................................
Defendant
DR
DEON
SMITH
...........................................................................
Third
Party
JUDGMENT:
8 NOVEMBER 2013
LE
GRANGE, J
[1]
This is an application by the Defendant to permit the joinder of Dr.
Smith (the Respondent) as a Third Party in an action. The
Application
is premised on the provisions of Rule 13(3)(b) of the Uniform Rules
of Court which provides that, after close of pleadings,
a third party
notice may only be served with leave of the court.
[2]
In the present instance, the Plaintiff instituted action against the
Defendant and the summons was served on 22 December 2010.
[3]
The action between the Plaintiff and the Defendant arises from
post-natal nursing services which were rendered, or ought to
have
been rendered, by the nursing staff of the Defendant’s hospital
to the Plaintiff’s son Pierre during the period
9 to 10 July 1997. The Plaintiff alleges that Pierre developed Group
B Streptococcus (“GBS”) septicaemia
and GBS meningitis
and various sequelae and complications thereof and maintains the
damage which Pierre (and, in the premises,
the Plaintiff) sustained
was caused by the negligent conduct of the professional nursing staff
of the Defendant. The Plaintiff
seeks to hold the Defendant liable
for such damages.
[4]
Defendant’s Plea, filed on 6 April 2011, sets out the grounds
on which it defends the action. The Pleadings had closed
on 4 May
2011.
[5]
The Notice of Motion to join the Respondent as a Third Party was
served on him on 14 January 2013. In resisting the relief sought
the
Respondent raised a number of grounds, inter alia that a case for
condonation and joinder had not been made out. The Respondent
also
sought an order to strike out the annexure ‘CB1’ attached
to the Defendant’s founding affidavit on the basis
that the
relevant annexure was not incorporated either by reference or
otherwise into the founding affidavit and constitutes irrelevant
hearsay evidence.
[6]
Mr. A La Grange, SC who appeared on behalf of the Defendant argued
the Defendant has prima facie established that the Respondent
is a
joint wrongdoer in respect of the Plaintiff’s damages as
contemplated in the Apportionment of Damages Act 34 of 1956.
Moreover, according to him the facts alleged by the Defendant, as
mentioned in the outline in the draft annexure to the Third Party
Notice, if established at the trial, is sufficient to entitle the
Defendant to succeed with its relief sought. He also relied on
the
dictum in Niemand v SA Eiendomsbestuur SWD (Edms) Bpk en ‘n
Ander
1985 (2) SA 7
10 (C) at 712, for the proposition that it is not
necessary in this instance to make out a prima facie case in the
founding papers
to be successful in this application.
[7]
The Defendant, in respect of the explanation for its failure to
timeously deliver the notice to the Respondent, admitted that
it did
consider the possibility of joining the Respondent prior to the close
of pleadings, but the argument advanced by
Mr. La
Grange was that “the issue required significant and extensive
further investigation due to the complex nature
of the Plaintiff’s
claim against the Defendant, and particularly the issue of
causation”. It was also contended that
although the
Defendant’s legal representatives attended a number of
consultations with the various experts during October
to November
2012, “it was only during the final consultation with Professor
Smith on 6 December 2012 that it was finally
concluded that Dr Smith
should be joined as a third party on the grounds as identified in the
draft Annexure to the Third Party
Notice”.
[8]
Mr. La Grange also submitted that it would be in the interest of
justice to join the Respondent as joint wrongdoer in these
proceedings in order to scrutinise the involvement and actions of the
Respondent as the paediatrician who was appointed to manage
the
immediate post natal care of the Plaintiff’s son in order to
avoid a multiplicity of actions. Furthermore, it was argued
that the
Respondent will not suffer any real prejudice if he is joined in
these proceedings.
[9]
Ms T Dicker SC appeared on behalf of the Respondent. The Respondent’s
opposition is essentially based on three main grounds.
Firstly, the
founding affidavit of the Defendant contains no satisfactory facts to
show sufficient cause why it should be excused
from compliance with
the Court Rules. Secondly, the Defendant in the founding affidavit
failed to set out the nature and extent
of the further investigations
it undertook, why it took so long and what information came to light
which it deemed relevant in
finally making the decision to join the
Respondent. Thirdly, the averments in annexure ‘CB1’
attached to the Defendant’s
founding affidavit should be struck
out on the basis that they constitute irrelevant hearsay evidence.
According to the Respondent
the Defendant has failed in support of
the vague and unsubstantiated allegations made against him to annex
supporting affidavits
to its papers.
[10]
Before dealing with these grounds it is perhaps convenient to have
regard to Rule 13(3)(b). In the past the sub-Rule had been
subject to
some judicial scrutiny. The approach the courts adopted has been
succinctly set out in Erasmus Superior Court Practice
at B1-110 and
the cases referred to therein. In applications of this nature Niemand
v SA Eiendomsbestuur SWD (Edms) Bpk en ‘n
Ander
1985 (2) SA 710
(C) at 712 adopted the test as formulated in Wapnick and Another v
Durban City Garage and Others
1984 (2) SA 414
(D) at 424B – C,
where the following was held:
“
Whilst
I am not prepared to say that it is a sine qua non to the success of
the application that the applicant should make out a
prima facie case
on the merits, I do believe it correct to state that it is in general
required of such an applicant to furnish
a satisfactory explanation
for his failure to give the notice before close of pleadings and to
make out a prima facie case against
the person he seeks to sue by
alleging facts which, if established at the trial, would entitle him
to succeed.”
[11]
In Mercantile Bank Ltd v Carlisle & Another
2002 (4) SA 886
(W)
at 889 C – D a different view was expressed and the following
approach was adopted:
“
It
is difficult to see why it should not be a sine qua non to the
success of such an application that the applicant should make
out a
prima facie case on the merits, in the sense of alleging facts, which
if established at the trial, would entitle it to succeed.
An
applicant in this situation ought normally (I am prepared to say
always) to attach a draft third party notice and annexure in
which
his cause of action against the third party is set out, and to
confirm or adopt those allegations under oath. If no prima
facie case
is made out in those allegations (i.e. the claim as set out in the
notice and annexure is excipiable in that it does
not disclose a
cause of action), it is inconceivable that a court would permit the
third party joinder. Accordingly, I would, at
the very least, expect
an applicant to set out a prima facie case in the sense described
above, whether in his founding affidavit
or in the draft third party
notice and annexure”
[12]
At paragraph F, the court continued to qualify what it meant by prima
facie case and absence of excipiability and states the
following:
“
The
prima facie case, or absence of excipiability, must of course be
weighed in the light of the totality of the available facts.
The
applicant may, for instance, present a technically correct pleading,
whereas the common cause facts as they emerge from the
affidavits may
make it clear that the case against the third party, if pleaded
according to those facts, could never succeed.
To that extent, the
prima facie case, or absence of excipiability, must be qualified by
having regard to the totality of the facts.
In this exercise, it
must be borne in mind that the purpose of the Rule is to prevent a
multiplicity of actions (MCC Contracts
(Pty) Ltd v Coertzen and
Others
1998 (4) SA 1046
(SCA) at 1049J – 1050A), the Court is
given a wide discretion (Wapnick v Durban City Garage (supra at
423E)), and a lenient
approach is called for. Accordingly, if on the
totality of the facts, the case against the third party is totally
unfounded, the
joinder would be refused. It must be a clear case,
for it is the function of the trial Court to decide disputes, and
joinders
should in my view not be refused save in the clearest of
cases.”
[13]
In Pitsiladi and Others v ABSA Bank and Others
2007 (4) SA 478
(SE),
the sub-Rule came under scrutiny again. The court considered the
Wapnick, Niemand and the Mercantile Bank cases (supra) and
came to
the conclusion that it was unable to agree with the finding in the
Mercantile Bank case that ‘the application must
fail if the
applicant’s third party notice, which at this stage of the
proceedings before leave for its late filing has been
granted is
basically in draft form, is excipiable.’
[14]
Despite the notion expressed in the Wapnick and Niemand cases, that
establishing a prima facie case is not a sine qua non for
a
successful application under the sub-rule, the requirement to
establish a prima facie case was nonetheless considered in the
Pitsiladi case and at page 484 E the court expressed the following
views:-
“
To
establish a prima facie case for purposes of Rule 13(3)(b) means that
the applicant’s case on the merits must not be totally
unfounded, and should be based on facts mentioned in outline, which,
if proved, would constitute a claim. (Wapnick v Durban City
Garage
(supra at 424A). In my view, and unless the Court is satisfied on a
conspectus of all the facts that the applicant’s
case is
clearly without merit, factual and legal issues raised by an
application in terms of sub-rule (3) are rather to be determined
at
the trial or left to be addressed in the pleadings which the third
party is entitled to file in terms of Rule 13.”
[15]
In considering whether the applicant has made out a prima facie case,
the court in Pitsiladi took into account the transcript
of the
evidence in a criminal trial including all the affidavits filed in
support of the application. It came to the conclusion
that the
Respondent has not gainsaid the factual allegations and the
documentation put up by the defendant in support of its claims
against the respondent and found that the defendant’s claims
were not unfounded. (Pitsiladi supra at 486 E)
[16]
What is evident from the abovementioned decisions is that the court
has a wide discretion, to be exercised judicially upon
a
consideration of all the facts and dependent upon what is fair to
both sides in deciding if to grant applications under this
sub-Rule.
Moreover, the court should not lightly refuse leave in terms of the
sub-rule because such refusal might result in a multiplicity
of
actions. On the other hand, leave should not be granted as a mere
formality when the applicant seeks an indulgence because he
failed to
join the third party prior to the close of pleadings when that would
have been possible. Furthermore, as stated in the
Pitsiladi case
supra at 482 H ‘it must be accepted that where the applicant’s
case against the third party is undoubtedly
without any merit, the
granting of leave to join the third party would be pointless and be
prejudicial to the plaintiff, whose
claims would be unnecessarily
delayed, and to the proposed third party, who would unnecessarily
become a party to the proceedings
and incur costs’.
[17]
Moreover, even though in the Wapnick, Niemand and Pitsiladi cases the
view was expressed that it may not be essential for an
applicant to
make out a prima facie case on the merits, the general requirements
seems to be that an applicant under this sub-rule,
firstly, had to
furnish a satisfactory explanation for his/her failure to issue the
notice before the close of pleadings and, secondly,
had to make out a
prima facie case against the person it seeks to join by alleging
facts which, if established at the trial, would
entitle him/her to
succeed. In the present instance these two requirements, which in my
view is the correct approach to adopt,
have sharply come into focus
again in particular whether the Defendant has indeed made out a prima
facie case against the Respondent
whom it seeks to join as a Third
Party.
[18]
Turning then to the facts of the present matter. The Defendant’s
right of action against the Respondent is in the main
based upon the
allegation that the Plaintiff’s wife was at the relevant times
a patient and under the care of Dr. R Cheifittz,
an obstetrician and
gynaecologist and by accepting the appointment by Dr Cheifittz ,
alternatively the Plaintiff’s and or
his wife as attending
paediatrician, the Respondent owed Pierre alternatively the Plaintiff
as father and natural guardian of Pierre,
a duty of care to take all
reasonable, required and necessary steps and/or measures to treat
Pierre in accordance with the skill,
care and diligence reasonably
expected of a specialist paediatrician which he allegedly failed to
do.
[19]
The reasons for the delay in joining the Respondent were recorded in
the founding affidavit by the attorney for the Defendant
in
paragraphs 5-6 as follows.
“
5.
Although the possibility of joining Dr Smit was considered prior to
close of pleadings, the issue required significant and extensive
further investigation due to the complex nature of the Plaintiff’s
claim against the Defendant, and in particular the complexities
surrounding the issue of causation. Only after a number of medical
experts were consulted, the latest of whom was Professor Johan
Smith
on 6 December 2012, did it come to light that there are in fact
grounds upon which to join Dr Smith as a third party to this
action,
which grounds have been set out in the Annexure to the Third Party
Notice. A copy of the Defendant’s draft Annexure
to the Third
Party Notice is attached hereto marked “CB1”.
6.
Dr Smith was accordingly not joined to this action as a third party
within the time period provided for in the Uniform Rules
of Court,
and this application could not be brought at an earlier stage, as the
on-going investigations had to be completed to
establish whether such
a joinder is in fact necessary to protect the Defendant’s
rights and interests, whereafter I had to
obtain instructions from my
client as to whether to pursue the joinder of Dr Smith as a third
party to this action.”
[20]
The Respondent has filed an extensive answering affidavit setting out
his response why the Defendant’s reasons to justify
their late
delivery of the Third Party Notice are inadequate, vague and
insufficient and why no prima facie case has been made
out against
him on the merits. At paragraph 7 of the answering affidavit the
following is inter alia recorded:
“
7.3
Defendant states that it considered the possibility of joining me
prior to the close of pleadings but elected not do so as the
issue
required significant extensive further investigation particularly
regarding causation.
7.4
Defendant fails to state what further investigations it undertook,
which medical experts were consulted, what grounds came to
light and
why it took nearly two years for this process to take. Defendant
provides no explanation as to why this process could
not have been
completed prior to or shortly after the close of pleadings.
7.5
Defendant provides no details of the relevance of the input of the
various medical experts, including Prof Johan Smith, who
was only
consulted on 6 December 2012. No explanation is provided regarding
why he was consulted at such late stage.
7.6
The grounds detailed in annexure “CB1” to the founding
affidavit must have been within Defendant’s knowledge
at the
time that it filed its plea. Defendant has at all times been in
possession of the hospital records and its legal representatives
clearly consulted with the nursing staff who were involved at the
relevant time.
7.7
Defendant’s attorneys of record (Norton Rose) in fact contacted
me in February 2012 and asked me to consult with them
regarding this
matter and in particular, regarding what caused and contributed to
the deterioration of baby Pierre van den Heever’s
(Pierre’s)
condition.
7.8
On 1 March 2012, Norton Rose addressed a letter to me in which they
inter alia requested me to confirm when I would be available
to
consult with them. A copy of the letter is annexed hereto marked
“DS1”.
7.9
At this stage I had already consulted with Plaintiff’s
attorneys of record, MacRobert Inc., and at their request provided
them with an affidavit regarding my views on certain aspects
regarding what caused and/or contributed to the deterioration of
Pierre’s condition. I accordingly advised Norton Rose that I
would consult with them but as I had already consulted with
MacRobert
Inc., I would prefer to do so in the presence of Plaintiff’s
legal representatives. They were amenable to this
and a consultation
was arranged for 24 May 2012. The day of the scheduled consultation
Norton Rose cancelled the consultation
due to the unavailability of
the attorney and counsel dealing with the matter as they were
apparently both involved in another
matter which required their
urgent attention and included consulting with witnesses from out of
town. They undertook to reschedule
the consultation, which they
never did.
7.10
It is apparent form annexure “DS1” that as at 1 March
2012 Norton Rose had already consulted with the nurses who
were on
duty at the hospital on 9 and 10 July 1997 and that certain of the
grounds detailed in annexure CB1” are contradicted
by the
contents of annexure “DS1”. In particular, it is clearly
stated that their understanding was that I was contacted
by Sister
Coldicott on 10 July 1997, after she had established that Pierre’s
condition had deteriorated. No mention is made
of any contact with
me prior to 10 July 2007. This belies, inter alia, the allegations
in paragraph 12 of annexure “CB1”.”
[21]
The Respondent also denied the allegation in the draft annexure to
the Third Party’s Notice that he had received a telephone
call
at or about 15h18 on 9 July 1997 from sister L Quelch advising him of
Pierre’s birth and requesting him to review him,
and stated
that if indeed he had received such call he would have attended
thereto as soon as possible. He stated that he had only
become aware
of and met with Pierre and his mother on the morning of 10 July 1997.
Sister L Quelch, who would be the obvious person
to confirm the
correctness of any entries made in the nursing notes on 9 July 1997,
could not be contacted and her evidence established;
it was confirmed
that she was last registered with the SA Nursing Council in 2006. The
Respondent stated that to the extent that
it may be contended by
Sister Quelch that she had made a call to his rooms on the above
date, and left a message regarding Pierre,
such could not be gainsaid
considering his receptionist at that time had since passed away. In
the light of the above Mr Smith
concludes that he cannot lead such
evidence at the trial and that he is prejudiced as a result thereof.
He further claimed that
it was impossible to either prove or disprove
the allegations set out herein with reference to the telephone
records for two reasons:
if the records had existed, they would have
been destroyed by now; and even if records could be produced
confirming that he had
been telephoned by nursing staff at the
maternity ward on the morning in question (which is denied), such a
call could have related
to a number of patients in respect of whose
care he was responsible.
[22]
I am alive to the basic notion that factual disputes are better left
to the trial Court to decide or left to be addressed in
the
pleadings, which the Respondent is entitled to file in terms of sub
Rule 13 and that joinder should only be refused in the
clearest of
cases. However, the Respondent’s complaint that the Defendant
did not furnish a satisfactorily explanation for
its failure to
timeously issue its Third Party Notice before close of pleadings is
not without substance. The information detailed
in the annexure to
the Defendant’s Third Party notice must have been within the
Defendant’s knowledge before or at
the time pleadings were
closed. I say this because on the papers filed it is evident the
Defendant has at all times been in possession
of the hospital records
and its legal representatives clearly consulted with the nursing
staff members who were involved at the
relevant time. It may be so
that further investigation, particularly regarding causation, was
required, but for reasons only known
to the Defendant, it has failed
to inform this court, from whom it seeks an indulgence, what
information came to light which it
deemed relevant in finally making
the decision to join the Respondent. Furthermore, the Defendant
appears to rely on an opinion
expressed by Professor Smith at a
meeting on 6 December 2012. However, no report, statement or detail
is provided regarding why
Prof Smith concluded that the Respondent
should be joined as a third party to the action. This scant
information can hardly be
regarded as a satisfactorily explanation
for the Defendant’s failure to timeously file the Third Party
Notice.
[23]
I now deal with the question whether the Defendant made out a prima
facie case against the Respondent which, if established
at the trial,
would entitle the Defendant to succeed. In as much as an application
in terms of the sub-rule falls in the same category
as applications
for rescission of a default judgment, removal of bar, leave to defend
and extension for the fillings of pleadings
(Pitsiladi supra at 481
H), this approach clearly does not do away with the well-established
body of law in motion proceedings.
Although in Pitsiladi the court
came to the conclusion that it is unable to agree with the finding
that ‘the application
must fail if the applicant’s third
party notice, which at this stage of the proceedings before leave for
its late filing
has been granted is basically in draft form, is
excipiable.’ The views expressed in the Mercantile Bank case
that ‘An
applicant in this situation ought normally (I am
prepared to say always) attach a draft third party notice and
annexure in which
his cause of action against the third party is set
out, and to confirm or adopt those allegations under oath,’
were not criticised
and cannot be regarded as objectionable in
applications of this nature. In my view an applicant must accordingly
raise the issues
upon which it would seek to rely in the founding
affidavit and ought to confirm and adopt those allegations it relies
upon under
oath. If not, the Applicant needs to be open and frank
with the Court why it cannot do so. Moreover, as stated in
Swissborough
Diamond Mines v Government of the RSA
1999 (2) SA 279
(T) at 324 F –G ‘..it is not open to an applicant or a
respondent to merely annex to its affidavit documentation and
to
request the Court to have regard to it. What are required are the
identification of the portions thereof on which reliance is
placed
and an indication of the case which is sought to be made out on the
strength thereof. If this were not so the essence of
our established
practice would be destroyed.’
[24]
In this matter what is apparent from the founding affidavit is that
no supporting affidavit or reports have been filed by any
medical
practitioner, in support of this application to join the Respondent
as a third party, be it on the reasons for the delay
or the merits.
Of particular interest is that no confirmatory affidavit has been
filed by Prof Smith in respect of the information
which came to light
after the consultation with him on 6 December 2012. The Defendant
elected also not to tender an explanation
for the absence of such
supporting affidavits. In my view, in this instance, basic fairness
and the interest of justice at the
very least demands that the
Defendant should have filed a short report or synopsis by Prof. Smith
outlining why he is of the opinion
that the Respondent should be
joined as a third party on the merits.
[25]
On a conspectus of all the evidence and the averments made in the
annexure to the Third Party Notice be it only in draft form,
in the
absence of any supporting or confirmatory affidavits by Prof Smith or
any other medical practitioner consulted by the Defendant,
it is my
view there are insufficient facts to make out a prima facie case,
which if established at the trial, would entitle it
to succeed. To
view it any differently would be to allow non-observance of this
Court’s Rules as a mere formality.
[26]
I have given consideration to the notion that the Defendant should
perhaps be granted leave to amend its papers even though
this issue
was not raised by counsel. In this instance, the Defendant was made
aware by the Respondent of the deficiency in its
papers and in
particular, the absence of any supporting or confirmatory affidavits
by Prof Smith. As a result of the Defendant’s
persistence in
refusing to remedy these shortcomings, I am inclined not to grant
such an order. The defendant can start de novo
if it elects do so.
[27]
It follows that the Application cannot succeed. In the result the
following order is made:-
The
Application is dismissed with costs.
LE
GRANGE, J