- April 24, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Reasons for Orders: Practice Directive 61
In this matter, according to Mr. Siseho (on behalf of the defendant), there was a delay in the provision of the plaintiff’s hospital file and medical records by the Otjiwarongo State Hospital. They could not find the medical file and looked for it for some time. He avers that his office’s inability to and the long delay in the location of the plaintiff’s hospital file resulted in the delay in the Ministry’s provision of the defendants’ instructions to the Government Attorney for the timeous preparation and filing of the defendant’s plea.
A copy of the plaintiff’s medical file, as stated by Mr. Siseho, was only located and availed to the Government Attorney on 8 August 2022. This was already late as the defendants’ plea was due no later than 5 August 2022. Even after the plaintiff’s medical file and records were located, Mr. Siseho contends, they still could not provide the Government Attorney with the instructions for the preparation of the plea as the defendants still required the medical expert’s assessment of the records and the treatment complained of. The defendants only received the expert opinion at the end of September 2022, after the scheduled case management conference hearing on 21 September 2022.
As far as reasonable prospects of success of the defendants’ case were concerned, Mr Siseho asserted that the defendants will rely on the expert medical assessment of the plaintiff’s treatment and care complained of. According to the assessment, there was no medical negligence as alleged by the plaintiff. The defendants’ explanation of the treatment is that the plaintiff suffered from a rare pregnancy complication that resulted in the treatment and care rendered to her. The alleged physical abuse of the plaintiff was disputed.
In his supporting affidavit, counsel for the defendants, Mr Khupe, confirms that the non-compliance relating to the non-filing of a plea, was as a result of the Ministry’s challenges in obtaining the information on the plaintiff’s treatment and care, the subject of this civil action, from the Otjiwarongo State Hospital. Without the plaintiff’s medical file and medical records, the defendants could not assess the treatment complained of to provide the necessary instructions to their legal practitioners for the timeous preparation and filing of the defendant’s plea.
Mr. Khupe conceded that the delay in not promptly bringing the condonation application is his and cannot be faulted on the defendants themselves as it was a technical procedural issue. Mr. Khupe explained that he was unable to institute the interlocutory application promptly due to the overwhelming work pressure currently being experienced at the Government Attorney’s office, where he has been employed for more than 20 years now. The situation, according to Mr. Khupe, had not been as difficult as it is now.
Opposition
The plaintiff opposed the condonation application on the basis that it was without merit, did not comply with rule 56, did not meet all the requirements, and should therefore, be dismissed. The plaintiff, in her answering affidavit, asserted that there was a long delay in the defendants filing their condonation application and the explanation given is unconvincing and thus, unacceptable. No detailed and satisfactory explanation is given as to why it took them two months to seek condonation. A two-month delay is too long to be attributed to work pressure. The plaintiff insisted that the defendants had more than enough time to inform the court about their challenge and seek a solution that could have avoided this application. It is the plaintiff’s assertion that not only did the defendants fail to communicate to the court or the plaintiff about the alleged challenge(s) in obtaining the medical records, but they also failed to inform their own legal practitioners, as deduced from Mr. Khupe’s affidavit. This proves gross negligence and remissness on the part of the defendants and/or their legal representatives in litigating this matter and is fatal to their case.
USIKU J:
Analysis
Delay in filing condonation application
From the evidence, it was apparent to the court that the defendants were aware of their non-compliance with the court order dated 19 July 2022, at least by 11 August 2022 when they addressed a letter to the defendants referring to the non-compliance. In the court’s view, the condonation application was brought very late. A persuasive explanation was required to cure the lateness.
In their explanation for the delay, Mr. Khupe ascribes the delay to work pressure at the office. There is a lack of information about how the pressure of work prevented him from applying for an extension of time or for condonation as soon as the non-compliance had come to his attention. In addition, Mr Khupe does not deal with the issue as to what he did when he realized that the time period within which the plea was to be delivered was about to expire. Neither does he explain what he did as soon as he came to know that there was non-compliance.
Condonation
Usiku J proceeded with his assessment of the arguments by stating that:
‘[19] Where the non-compliance is time-related, the date, duration, and extent of any impediment to compliance, on which reliance is placed, must be spelled out. Condonation is not to be had merely for the asking. A full, detailed, and accurate account of the cause of the delay and its effect must be stated. The defendants’ explanation for the delay lacks a full description of what exactly happened during the period between 19 July 2022 and 5 August 2022 when the due date for delivery of the plea arrived and no plea was filed. The defendants’ explanation for the delay is therefore unsatisfactory.
[21] With regards to the prospects of success, the defendants merely stated that they rely on ‘JS3’, which is an attachment to the founding affidavit with the heading ‘Medical Report: Ms. Whitney Snyder.’ There was no indication on which aspects of that attachment the defendants rely for the submission that they have reasonable prospects of success. However, the defendants went on to further state that (a) the expert medical assessment of the plaintiff’s treatment and care complained of, is that there was no medical negligence, as alleged by the plaintiff; (b) the defendants’ explanation of the treatment is that the plaintiff suffered from a rare pregnancy complication that resulted in the treatment and care rendered to her; and (c) the alleged physical abuse of the plaintiff is disputed.
[22] The plaintiff, did not, in the answering affidavit, refute the above-mentioned allegations and as such, they remain unchallenged. In the grounds put forth as prospects of success, the defendants state that the plaintiff suffered from a rare pregnancy complication that resulted in the treatment rendered to her. If indeed the treatment rendered was in response to the plaintiff’s rare pregnancy complication and was justified in the circumstances, then the defendants have alleged a defense that qualifies as bona fide. Since the defendants’ version on this aspect was not challenged, they have satisfied the requirement for prospects of success.
[23] In Ekandjo NO v Van Der Berg (19/2004) [2008] NASC 20 (12 December 2008), the court cited the following dictum in TransNamib Holdings Ltd v Bernhardt Garoёb No. 26/2003 (unreported):
‘…On the other hand, is the interest of the defaulting litigant in maintaining and presenting his defense. If such a litigant demonstrates a potentially good defense on the merits, the Courts will normally be reluctant to let a default judgment pass without proper adjudication. Litigants have a constitutional right to a fair trial in the ‘determination of their civil rights and obligations’. (Article 12(1)(a) of the Constitution). In the adjudication of those rights and obligations, Courts of law have a fundamental duty to do justice between the parties by, inter alia, allowing them a proper opportunity to ventilate the issues arising from their competing claims or assertions. To the extent that that right is limited by the entry of default judgment if a litigant fails to comply with the procedures prescribed for the presentation of his or her case, a litigant who has shown substantive merits in his or her defense and good cause for the non-compliance will not be deprived of a just resolution in due course. In the absence of gross negligence or willful disregard of its rules, the Court will not shut its doors to a bona fide litigant with a good defense just because of his or her failure to comply with the Rules.’
In these circumstances, the court believed the defendants’ prospects of success were capable of and do tip the scales of the condonation in their favour. These prospects of success mitigated the poor explanation furnished by the defendants for the default.
In terms of costs:
…An applicant seeking condonation pays the costs occasioned by the application as he/she seeks the indulgence of the court. In addition, Usiku J believed that the remissness on the part of the defendants in complying with the court order dated 19 July 2022 and the poor explanation for the defendants warrant the granting of a costs order not limited in terms of rule 32(11).
As a result, the defendant’s application for condonation of failure to file their plea was granted and the automatic bar was uplifted. The defendants were ordered to pay the costs of the plaintiff, jointly and severally, the one paying the other to be absolved, but such costs were not to be capped in terms of rule 32(11).