Ewert v Coetzer (HC-MD-CIV-ACT-OTH 2233 of 2016) [2019] NAHCMD 53 (31 January 2019)

Ewert v Coetzer (HC-MD-CIV-ACT-OTH 2233 of 2016) [2019] NAHCMD 53 (31 January 2019)

The plaintiffs have shown good cause as contemplated in Rule 93(5) because the failure to file the witness statement was due to the legal practitioner's fault, the defendant would not be prejudiced, and barring the plaintiff from testifying would not resolve the dispute but only delay finality. The court's discretion must be exercised to allow the plaintiff to give oral evidence in the interests of justice and fairness.

Citation
[2019] NAHCMD 53
Parties
First Plaintiff: Margaret Ewert; Second Plaintiff: Margaret Ewert (in her capacity as executrix in the estate of Bruno Rudolf Ewert); Defendant: Hennie Coetzer
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
31 January 2019
Case Number
HC-MD-CIV-ACT-OTH 2233 of 2016
Procedural Posture
Civil Action Other / Interlocutory Application for Leave to Give Oral Evidence After Late Filing of Witness Statement
Outcome
Application granted in part; plaintiff granted leave to give oral evidence; costs awarded to defendant.
Legal Topics
Case Management, Witness Statements, Condonation, Sanctions for Non Compliance, Good Cause Requirement
Source Language
English
Civil Procedure Case Management Witness Statements Condonation Sanctions for Non Compliance Good Cause Requirement

Case Brief

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Parties

Margaret Ewert

First Plaintiff

Margaret Ewert (in her capacity as executrix in the estate of Bruno Rudolf Ewert)

Second Plaintiff

Hennie Coetzer

Defendant

Procedural Posture

Civil Action Other / Interlocutory Application for Leave to Give Oral Evidence After Late Filing of Witness Statement

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to give oral evidence at trial after late filing of witness statement and dismissal of condonation application under Rule 93(5)
  2. 2 Whether the court should absolve the defendant from the instance due to lack of admissible evidence from the plaintiff

Ratio Decidendi

The plaintiffs have shown good cause as contemplated in Rule 93(5) because the failure to file the witness statement was due to the legal practitioner's fault, the defendant would not be prejudiced, and barring the plaintiff from testifying would not resolve the dispute but only delay finality. The court's discretion must be exercised to allow the plaintiff to give oral evidence in the interests of justice and fairness.

Court Disposition

Application granted in part; plaintiff granted leave to give oral evidence; costs awarded to defendant.

Orders

  • The plaintiff is, in terms of Rule 93(5), granted leave to give oral evidence at the trial of this matter.
  • The plaintiffs must pay the defendant’s costs of this application and the wasted costs for 02 July 2018.