NM v MEC for Department of Health, Eastern Cape Province

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: N Gqamana J
• Judgment Date: 20 July 2022
• Docket Number: 1150/2021
• Hearing Date: 15 June 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 2132 (ECGEL)

Gqamana J:

[1]

For convenience, the parties shall be referred to as cited in the main action. On 15 June 2022, I issued an order in favour of the applicant with the reasons to follow and below herein are such reasons.

2022 JDR 2132 p2

Gqamana J

[2]

The plaintiff, acting on behalf of her minor child caused summons to be issued against the defendant, MEC for department of Health, Eastern Cape Province for damages arising out of an alleged negligence by the defendant's employees who attended to the plaintiff during her admission and birth of her minor child at Frere hospital during November 2003. For present purposes, the plaintiff seeks an order in terms of Rule 35(3) of the Uniform Rule of Court, to compel the defendant to reply to her notice requesting further records as well as costs of such application.

[3]

The case made out by the plaintiff in the founding affidavit is that after pleadings were closed, a discovery affidavit was filed on behalf of the defendant on 17 January 2022. On receipt the defendant's discovery affidavit, the plaintiff held an opinion that the documents so discovered were incomplete and that the defendant was in possession of further documents. As a result, on 31 January 2022, the plaintiff's attorney served the defendant with a notice in terms of Rule 35(3) requesting copies of inter alia, the neo-natal records, histology, birth register, labour admission book, medical register and CTG scan taken during birth of the plaintiff's minor child. In terms of the aforesaid notice, the defendant was required to make available for inspection within 5 days of such notice the aforesaid documents or to state under oath within 10 days that same were not in her possession.

[4]

Rule 35(3) of the Uniform Rules reads:

"If a party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring such party to make same available for inspection in accordance with subrule (6), or to state on oath within 10 days that such documents or tape recordings are not in such party's possession, in which event the party making the disclose shall state their whereabouts, if known. "

2022 JDR 2132 p3

Gqamana J

[5]

There being no response to the plaintiff's Rule 35(3) notice, her attorney penned a letter on 15 January 2022, to the defendant's attorneys putting them on terms to comply with the aforesaid notice.

[6]

On 23 March 2022, the defendant was served with the application to compel her reply to the plaintiff's aforesaid Rule 35(3) notice.

[7]

In the opposing affidavit deposed to by the defendant's attorney of record, Mr Dlanjwa it is alleged that, the erstwhile attorney who was seized with the matter, Mr Ngwenya, responded to the plaintiff's attorney on 14 February 2022, and advised the latter that the...