CIVIL PRACTICE – APPLICATION FOR LEAVE TO FILE ADDITIONAL EXPERT WITNESS STATEMENTS

CIVIL PRACTICE – APPLICATION FOR LEAVE TO FILE ADDITIONAL EXPERT WITNESS STATEMENTS  

The plaintiff (the applicant herein) brought an application on 11 May 2020 seeking the relief that, firstly, the applicant be granted leave to file and serve an additional expert witness statement of Eugene Luwellin Camm and that such witness is to be declared as an expert in terms of rule 29 of the Rules of the High Court to be called as an expert at the continuation of the trial in terms of rule 93(5). Secondly, the witness, Leevi Krist Kapenda be declared as an expert in terms of rule 29 of the Rules of the High Court to be called as an expert at the continuation of the trial. Thirdly, a variation of the pre-trial order of 22 October 2020 in respect of paras 1 and 2 thereof be granted. And lastly, that condonation in respect of the non-compliance as far as it relates to the expert summary and rule 29 application be granted. The first defendant, who is the respondent herein, opposed the application. The second defendant elected to abide by the decision of the court.

PRINSLOO J considered the application and held that:

1. The plaintiff filed an extensive founding affidavit, but the deponent of the founding affidavit has no personal knowledge of the facts of the matter. As a result, the plaintiff fell into the trap of placing all its reliance on confirmatory affidavits, which was utterly unhelpful.
2. The founding affidavit of the plaintiff does not provide the court with any details with regards to its default to deliver its expert summaries and statements, especially if one considers the period that elapsed between the date of the pre-trial order (3 September 2020) and the date of the ruling on 9 December 2021, striking a similar application from the roll.
3. Held further that: the plaintiff did not comply with the multiple court orders to file its expert summaries and statements. None of these non-compliances were adequately explained in the founding affidavit. Therefore, I believe that it is not even necessary to consider the plaintiff’s prospect of success because of previous “flagrant” non-compliance with the rules, which demonstrates a “glaring and inexplicable” disregard for the processes of the court.

As a result, the plaintiff’s application dated 11 May 2022 was dismissed with costs.

The Government of the Republic of Namibia v Uupindi NAHCMD (6 July 2022)