hearing and both parties were legally represented.

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, BHISHO) CASE NO. 404/08 Date delivered: 25 March 2010 In the matter between: NOMTHAMDAZO LUCY MGUZULWA Plaintiff and ROAD ACCIDENT FUND Defendant J U D G M E N T NDENGEZI AJ: BACKGROUND [1] On the 28 th day of July 2009 this matter was set down for hearing on the 12 th day of March Indeed that day the matter was on the roll for hearing and both parties were legally represented.

2 2 [2] Counsel for Plaintiff Mr Bloem, requested that the matter be postponed sine die. He advanced the following reason for the postponement: (a) That the Defendant has not complied with Rule 36(9)(a) and b). [3] Rule 36(9)(a) provides that no person will, save with the leave of the court or the consent of all the parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he has (a) Not less than fifteen days before the hearing, delivered notice of his intention to do so, and (b) Not less than ten days before the trial, delivered a summary of the expert s opinions and his reasons for them. [4] The nature of expert evidence demands that the other party should be able to prepare to cross examine them and, if necessary, to allow his own expert witnesses to prepare in advance to counter their evidence.

3 3 [5] In the present matter the following happened: (a) A Clinical Psychologist Mr Ian Meyer examined the Plaintiff on the 15 th February (b)he compiled a report consisting of 42 pages. (c) An Industrial Psychologist Mr Hannes Swart compiled a report in respect of the Plaintiff on 03 rd March (d)this report consists of 18 pages. (e) On the 04th of March 2010 an actuarial report was prepared by Nlien Kambaran and Rlyadh Omardian. (f) The actuarial report consists of 5 pages. [6] It is obvious that these reports were out of time and not in compliance with Rule 36(9) at all since the matter was set down for 12 th March The contention of the Plaintiff is that since the Rule has not been complied with, he was compelled to ask for the postponement of the matter. The experts for Plaintiff would have to look at these reports and compare them with their reports. There should be

4 4 discussion between the experts to see whether they cannot meet each other. This is one of the purposes of Rule 36(9). [7] Plaintiff then contends that the Defendants are liable for costs since they failed to comply with the Rule and consequently the matter has to be postponed. They are the cause of the postponement. I may mention that I doubt that these reports constitute a summary as required by the rule. [8] The Defendant s Counsel does not deny that Rule 36(9) has not been complied with. His submission may be summarised as follows: (a) The Plaintiff has not proved or alleged that he has suffered prejudice as a result of non compliance. (b) The Plaintiff should have brought a substantive application for postponement. (c) The Plaintiff s real reason for asking a postponement is that they have seen the report of Psychologist Mr Meyer that it destroys the case for Plaintiff. (d)a party who seeks postponement has to tender costs.

5 5 THE LAW 1. It is true that a party who seeks postponement has to tender costs. However, it is not always so. The most important question is what is the reason or cause for seeking postponement. If the reason or cause for postponement is the Defendant s non compliance with the Rules, Plaintiff cannot be held liable for costs. 2. In the present matter the reason or cause for the Plaintiff to seek postponement is that the Defendant did not comply with Rule 36(9). The Plaintiff needs time to refer Defendant s expert reports to his experts. This is one of the objectives of the Rule. 3. The fact that the reports furnished by Defendant s experts are not favourable to Plaintiff s case, justifies the need for his experts to have a look and engage with Defendant s experts. The Defendant is himself to blame for this state of affairs, had

6 6 he complied with the Rule there would not have been this problem of postponement and costs. 4. In any event, in my view, the Defendants should have tendered costs for the postponement when it became clear he did not comply with the Rule and the matter had to be postponed. I am of the view that there was no need for a substantive affidavit requesting postponement in this matter. The facts are simple and speak for themselves. 5. On the date of hearing this matter was postponed sine die with costs reserved. I now make the following order for costs: (a) The Defendant is ordered to pay waisted costs of the 12 March S D NDENGEZI ACTING JUDGE OF THE HIGH COURT

7 7 Counsel for the Plaintiff : Advocate G H Bloem Attorneys for the Plaintiff : Mpambaniso Attorneys C/o S Z Sigabi & Ass King William s Town Counsel for the Defendant : Advocate A G Dugmore Attorneys for the Defendant: Bate Chubb & Dickson Inc East London Matter heard : 12 March 2010 Judgment delivered : 25 March 2010