A.S v Member of the Executive Council for the Department of Health KwaZulu-Natal (7630/2013P) [2023] ZAKZPHC 146 (28 November 2023)

A.S v Member of the Executive Council for the Department of Health KwaZulu-Natal (7630/2013P) [2023] ZAKZPHC 146 (28 November 2023)

The court found that the plaintiff had not led any evidence on the issues identified in the contentious paragraphs of the proposed amendment and had expressly stated that no further evidence would be led on those issues. The amendment was therefore not an attempt to align pleadings with evidence already led, but would instead introduce new issues at a late stage in the trial, potentially requiring the recall of witnesses and causing prejudice to the defendant. The court held that the amendment would not contribute to the resolution of the real dispute between the parties and would be an exercise in futility. The interests of justice did not support granting the amendment, and the...

Citation
[2023] ZAKZPHC 146
Parties
Plaintiff: A[...] S[...]; Defendant: Member of the Executive Council for the Department of Health KwaZulu-Natal
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 November 2023
Case Number
7630/2013P
Procedural Posture
Civil Procedure / Application to Amend Particulars of Claim During Ongoing Trial
Outcome
Plaintiff’s application to amend particulars of claim refused; costs of the application to be paid by the plaintiff, but only taxed after delivery of final judgment in the trial.
Judges
Mossop
Legal Topics
Amendment of Pleadings, Medical Negligence, Prejudice in Amendment, Judicial Discretion, Costs Orders
Civil Procedure Delict Amendment of Pleadings Medical Negligence Prejudice in Amendment Judicial Discretion Costs Orders

Case Brief

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Parties

A[...] S[...]

Plaintiff

Member of the Executive Council for the Department of Health KwaZulu-Natal

Defendant

Procedural Posture

Civil Procedure / Application to Amend Particulars of Claim During Ongoing Trial

Legal Issues

  1. 1 Whether the plaintiff should be permitted to amend her particulars of claim to include allegations regarding postnatal care and resuscitation of the minor child.
  2. 2 Whether the proposed amendment would prejudice the defendant or serve the interests of justice.
  3. 3 Whether the amendment aligns with evidence already led or would require recall of witnesses.

Ratio Decidendi

The court found that the plaintiff had not led any evidence on the issues identified in the contentious paragraphs of the proposed amendment and had expressly stated that no further evidence would be led on those issues. The amendment was therefore not an attempt to align pleadings with evidence already led, but would instead introduce new issues at a late stage in the trial, potentially requiring the recall of witnesses and causing prejudice to the defendant. The court held that the amendment would not contribute to the resolution of the real dispute between the parties and would be an exercise in futility. The interests of justice did not support granting the amendment, and the...

Court Disposition

Plaintiff’s application to amend particulars of claim refused; costs of the application to be paid by the plaintiff, but only taxed after delivery of final judgment in the trial.

Orders

  • The plaintiff’s application to amend her particulars of claim by the insertion of paragraph 16B and paragraphs 17.3.1 to 17.3.5, as detailed in her notice of intention to amend dated 16 January 2023, is refused.
  • The costs of the application are to be paid by the plaintiff but such costs may only be taxed after delivery of the final judgment in the trial.