IN THE HIGH COURT OF SOUTH AFRICA

                                                                    Case No . 43/07

In the matter between:

THAPELO ALPHONSINA GWAMBE                                    1ST PLAINTIFF

MOHLAOLE JOHANNES GWAMBE                                     2ND PLAINTIFF






DATE OF HEARING                       :    02 FEBRUARY 2009
DATE OF JUDGMENT                      :    12 MARCH 2009

FOR THE PLAINTIFF                     :    Advocate G. Strydom
FOR THE DEFENDANT                     :    Advocate S.J.R. Mogagabe (with him
                                           Adv. K D Ramolefe)



[1]   On Tuesday, 14 October 2008, Defendant delivered a notice in terms of Rule 36 on
      Plaintiffs requesting that Plaintiffs’ minor child, "M", be examined by Dr Flemming, a
      neurologist, at 10h00 the subsequent day at Millpark Hospital, in Johannesburg. The
      Plaintiffs objected to this examination. Respondent then applied to Court on 17 October
      2008, for an order to compel the Plaintiffs to submit "M" to the said examination.

[2]   After listening to oral argument, the Court ordered both counsel to submit written heads
      of argument. On 2 December 2008 Defendant submitted its heads of argument whilst
      Plaintiffs submitted theirs on 29 January 2009. The application was then argued on 2
      February 2009.

Factual Background

[3]   The Plantiffs are husband and wife. Their claim for damages is a sequel to the
      unfortunate incident of July 2005 at Klerksdorp hospital where First Plaintiff gave birth to
      a cerebral palsy child, "M".

[4]   The trial started on 23 September 2008. The case was heard further on the following
      dates, 29 to 30 September and 16 to 17 October 2008. During these five days, nine
      expert witnesses testified on behalf of the Plaintiffs. They are Professor Cooper, a
      specialist paediatrician; Ms Bainbridge, an Occupational Therapist; Ms Donaldson, an
      Industrial Psychologist; Professor Versveld, an Orthopaedic Surgeon; Ms Jackson, a
      physiotherapist; Dr Grinkler, a Psychiatrist and Mr Brummer, an architect.

[5]      In the afternoon of Friday, 17 October 2008, whilst Mr Brummer was still busy giving
         evidence, the Defendant brought the application to subject "M" to another medical
         examination. On that day, Dr Strauss was not in court. For the whole day of Monday,
         20 October 2008, the Court was busy with Mr Brummer. However, Dr Strauss came to
         court for the first time on that Monday and was in court for the whole day. He only
         started to testify on Tuesday, 21 October 2008.

[6]      On behalf of Plaintiffs, Dr Strauss compiled a report which was served on Defendant
         more than three weeks before the start of the trial. This report is dated 13 August 2008.
         At page D.2771 paragraph 6 (of the report) he stated:-

                  “Comparison with the article of Strauss et al 
                  The research most relevant to "M"’s degree of disabilities appears to be the
                  recent work of Strauss et al . The authors provide life expectancies for adults
                  with cerebral palsy according to the level of gross motor function and feeding
                  ability. The authors estimated a life expectancy of 21.0 additional years for 15
                  year – old females who, like "M", could lift their heads in prone voluntarily and
                  consistently, and were fed orally by others. The life expectancy represents 32%
                  of the figure for females of the same age in the US general population, which is
                  similar to the estimate provided here for "M".”2

[7]      This 2008 research paper was not attached to Strauss’ report. According to Defendant,
         it was only availed when Strauss entered the witness box. However, the full citation of
         this work was set out by Strauss at item 7 page D.279 of his report.

         [8]      Dr Flemming, a neurologist, has filed a report dated 18 August 2008 on behalf of
                  the Defendant3.          Like Strauss, Flemming did not examine "M". He (Flemming)
  D.277 means page 277 of Exhibit D.
  The recent work of Strauss et al is the 2008 research
  See Pages E.135 to 140
       relied on two reports to come to his conclusion. These were reports from Dr
       Marus, a neurosurgeon and Professor Fritz, a neurologist. He attached two
       research papers to his report, one of them being Strauss’ 2007 research. He did
       not refer to Strauss’ 2008 paper.

[9]    One of the central points of dispute in this case is "M"’s life expectancy. Whether
       or not "M" can lift her head from prone position “voluntarily and consistently” will
       either be a positive or a negative factor to her life expectancy. I must emphasise,
       that in this judgment, the Court will not make any finding in that regard. This is an
       exercise which will be undertaken after the closure of the Defendant’s case.

[10]   When Plaintiffs objected to the request to have "M" examined by Flemming, they
       did so by means of a mere letter not through a formal notice.

The issues

[11]   The following issues call for decision in this application:-

       (a)    Is a party who objects against medical examination in terms of Rule 36(5)
              constrained to do so by means of a formal notice?;
       (b)    Is Plaintiffs’ objection fatally defective, merely on the ground that they did
              not specify under which sub-head in Rule 36(3) it falls? and

       (c)    On the merits, has applicant (defendant) made out any case for
               medical examination of "M" (again)?

The Law

[12]   I quote hereunder the relevant provisions of Rule 36

       “Inspections, examination and expert testimony

              (1)    -------------
              (2)    -------------
              (3)    The person receiving such notice shall within five days after the service
                     thereof notify the person delivering it in writing of the nature and grounds of
                     any objection which he may have in relation to:-
                          (a)        the nature of the proposed examination;
                          (b)        the person or persons by whom the examination is to be conducted;
                          (c)        the place, date or time of the examination;
                          (d)        the amount of expenses tendered to him;
              (4)    -------------
              (5)    If it appears from any medical examination carried out either by agreement
                     between the parties or pursuant to any notice given in terms of this rule, or by
                     order of a judge, that any further medical examination by any other person is
                     relevant to the assessment of such damages, any party may require a
                     second and final medical examination in accordance with the provision of this

[13]    All that subrule 3 requires is that the objecting party should “notify in writing” the author
        of the request for medical examination. This subrule per se, does not specify the mode
        of such notification, whether it should be through a formal notice or an ordinary letter.
        Erasmus4 is of the view that the notification should be a formal one. In practice
        however, it would be appropriate and desirable to resort to a formal notice which is filed
        with the Registrar.

[14]    In Selamolela v President VerseKeringsmaatskapy5 a mere letter was used to
        communicate the objection to the defendant. Although this question was not speicifically
        argued before the court and therefore not decided but the fact remains that an informal
        mode of notice had been given. In my view, the objection against the use of an informal
        notice in the present case is highly technical in nature and the Defendant has not
        suffered any prejudice as a result of such imperfect notice. The Court is of the opinion
        that this is a proper case where it should exercise its discretion in terms of its inherent
        powers, to condone the use of a letter.6

[15]    I turn now to deal with the question whether the objection violated Rule 36 (3). Erasmus,
        supra, at page B1 - 267 states:-

                “It is submitted that in this subrule the “nature” of the claimant’s objection
                means that he must specify in his notice whether his objection falls under para
                (a), (b), (c) or (d) or this subrule; ---------------“

  Superior Court Practice, Page B1/267
  1981 (3) S A 1099 (TPA)
  McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (WLD) at 643 B-F
The objection by the Plaintiffs was worded as follows:-

       “5.1   The Plaintiffs strongly object to any further examinations of the Plaintiffs’
              minor daughter "M" in terms of Rule 36 at this late point in time. Your
              notice in terms of Rule 36(1), (2) and (3) does not meet the requirements
              of Rule 36(2) as it is irregular and defective.”

              (My emphasis)

[16]   It is quite clear that this objection does not follow the setting as outlined by
       Erasmus. In my view, the reading of the objection reveals two grounds. The first
       is that it is late in the process of the trial. In other words, the trial has already
       progressed significantly. The second relates to the defective and irregular nature
       of the request. A perusal of paragraph 5.1 of Plaintiffs’ objection does not leave
       any room for doubt what their actual position is. In my view, Defendant also
       should have understood the impact of the objection. Courts of law should be
       weary of insisting on formality rather than substance. Although Plaintiffs did not
       specifically categorise their grounds under the various subheadings in subrule 3, I
       find that no material violation of this subrule occurred which could warrant any
       intervention. The Defendant has also suffered no prejudice.

The status of Defendant’s notice to Plaintiffs

[17]   This notice (of 14 October 2008) was served on Plaintiffs at 14h38. It required
       "M", who stays in Klerksdorp, to be in Johannesburg not later than 10h00 the
       subsequent day. Effectively, Plaintiffs were given less than twenty hours notice.
                  Ruled 36 (2) stipulates that not less than fifteen days notice has to be given. The
                  period which was given in this matter is unreasonably short. Defendant’s notice
                  is therefore irregular and fatally defective. On this ground alone, the present
                  application cannot succeed. Since there is a need to put this matter to rest once
                  and for all, I now proceed to consider the merits of the application.

          The need to subject "M" to another medical examination

          [18]    Rule 36(9) provides:-
                  “No person shall, save with the leave of the court or the consent of all 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 shall:-

                          (a) not less than fifteen days before the hearing, have delivered
                              notice of his intention so to do; and
                          (b) not less than ten days before the trial, have delivered a summary
                              of such expert’s opinion and his reasons therefore.”

          [19]    It is a fundamental principle of fairness in a suit that no party should be taken by
                  surprise during the trial. Every party should come to trial knowing the case which
                  it is likely to meet from its opponent. Where medical expert witnesses are
                  involved, no party is permitted to lead such evidence unless there was proper
                  compliance with Rule 36 (9)7. It is against this principle of fairness and timeous
                  disclosure that one should interprete Rule 36 (5).

           [20] The Rules do not contain any provision which specifies at what stage of the
                  trial a notice requiring plaintiff to submit to medical examination (in terms of
    Coopers (S.A.) Ltd v Deutsche Schädllingsbekämpfung MBH 1976(3) SA 352 (AD) at 371 C-F
       Rule 36 (5)) may be delivered. However, it should be borne in mind always
       that it is desirable that all parties come to trial knowing what the case of the
       opponent is.

[21]   In my view, the provisions of Rule 36(5) should therefore be invoked preferably
       before the commencement of the trial.           In some cases such medical
       examination may be undertaken during the course of the trial. In that event, if
       there is an objection from plaintiff, defendant must prove, amongst others, to
       the satisfaction of the court, that before the commencement of the trial, such
       examination was not necessary but the necessity thereof has just cropped up
       in the course of the hearing. If a need for such medical examination was there
       already (before the start of the hearing), the reason why such examination was
       not undertaken at that stage.

[22]   In my view, it could not have been the purpose of Rule 36 (5) to address
       issues during the course of the trial which could have been dealt with prior to
       the commencement of the hearing. If I am wrong in this reasoning, then we
       would have the following anomaly. A defendant does not subject plaintiff to
       medical examination before trial. Plaintiff files its own expert reports, and
       thereafter it (plaintiff) leads evidence. Defendant listens to all these witnesses.
       Thereafter defendant calls for medical examination in terms of Rule 36 (5).

[23]   In this hypothetical situation, the defendant has an advantage because before
       its own experts’ reports were compiled, it listened to viva voce evidence and
       even cross-examined plaintiff’s witnesses. Therefore, in its experts’ reports,
       defendant is in a better position to close the loopholes. Plaintiff did not enjoy
       this privilege. No doubt, a procedure such as this one would be prejudicial to a
       plaintiff. Ultimately, we would come across a situation where most parties to a
       personal injury suit would wish to be a defendant rather than a plaintiff.

[24]   In casu, Strauss’ report was served on defendant on 27 August 2008. Paragraph
       6 D.277 thereof states the basis upon which life expectancy was estimated.
       Reference is made to Strauss’ 2008 most important research. The words “lift
       head in prone voluntarily and consistently” appear in paragraph 6.              Any
       reasonable person would have examined "M" immediately to verify whether she
       could lift up her head from prone “voluntarily and consistently”. Defendant did
       nothing to probe that. It allowed the trial to run. It enjoyed the advantage of
       listening to viva voce evidence from five experts. It cross-examined them. Only
       then does it need Flemming to examine "M", something it should have done
       immediately upon receipt of Strauss’ report.

[25]   Counsel for Defendant submitted (on 2 February 2009) that the need to examine
       "M" again was prompted by the production of Strauss’ 2008 research paper in the
       witness box (by Strauss). I am unable to agree.       On 14 October 2008, and that
       was about a week before Strauss flew into South Africa, Defendant already
       intimated to Plaintiff its intention in this regard – to subject "M" to medical
       examination. What Defendant fails to explain is what prompted its request of 14

               October 2008. In my view, there is nothing, during the trial, which prompted this,
               apart from paragraph 6 D.277 which was there before the end of August 2008.

       [26]    Defendant decided (before commencement of trial) not to subject "M" to another
               medical examination. It must stand or fall by that decision. It cannot be allowed
               to approach court under the cloak of Rule 36 (5) at this stage. Apart from that, to
               allow this medical examination will lead to unnecessary delay.


       [27]    Plaintiffs have applied for an order of costs on the punitive scale against the
               Defendant. Unfortunately, the facts of this matter do not justify a punitive costs

       [28]    In the result, the following order is made:-

               The application by Defendant is dismissed with costs.


Attorneys for the Plaintiff:         Smit Stanton Attorneys
                                     Warren Street

Attorneys for the Defendant:         The State Attorney
                                     Justice Chambers
                                     44 Shippard Street


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