Shivute v Kai-Brown Surgical Centre CC

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: H Angula DJP
• Judgment Date: 21 January 2022
• Docket Number: INT-HC-JOIN-2021/00014
• Hearing Date: 26 March 2021
• Court: Namibia Main Division (Namibia),Northern Local Division, Oshakati
• Citation: 2022 JDR 0139 (NmO)

Angula DJP:

Introduction:

[1]

Serving before court is an application for joinder brought by the applicant (plaintiff in the main action) to join the first respondent being Kai-Brown Surgical Centre CC, a close corporation duly established in terms of the close corporation

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Angula DJP

laws of the Republic of Namibia, as fifth defendant and Dr Erastus Dossy Kalangula as sixth defendant to the main action.

[2]

The parties in this matter waived their rights to present oral arguments and requested the court to decide the matter on their papers as filed on record.

[3]

For ease of reference, I will refer to the parties as cited in the joinder application and not the main action.

Brief background of the cause of action:

[3]

The applicant alleges that she was misdiagnosed by the fifth respondent who was in the employment of the second respondent as a locum doctor – (a doctor who works in the place of a regular doctor while the latter is on leave or absent) – at the facilities of the third respondent. The applicant further alleges that the said misdiagnosis resulted in her requiring an emergency surgery which was performed by the fourth respondent and/or the sixth respondent practicing in the name of the first respondent and at the facilities of the third respondent.

[4]

According to the applicant, she received negligent post-operative care at the hands of fourth and/or sixth respondents, which negligence was followed by a second surgery and the applicant alleges that she received the same negligent post-operative care after her second surgery as well.

[5]

First and second respondents use the facilities of the third respondent to conduct surgeries. Second respondent employed fifth respondent as a locum doctor. The applicant further alleges that the fifth respondent who was employed by the second respondent as a locum doctor, misdiagnosed her which resulted in the above mentioned operations. Applicant further alleges that, there exists a legal relationship amongst the respondents which has direct bearing on her cause of action and that such relationship can only be crystallised once the first and second respondents have been joined. The applicant contends that it is for these reasons that the first and second respondents should be joined as parties in the main action.

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Angula DJP

[6]

The first and second respondents opposed the application. Their opposing affidavits...