G.E.P obo M.F.L v MEC for The Department of Health Gauteng Provincial Government (33632/2014) [2023] ZAGPJHC 535 (22 May 2023)

G.E.P obo M.F.L v MEC for The Department of Health Gauteng Provincial Government (33632/2014) [2023] ZAGPJHC 535 (22 May 2023)

The court held that the application for absolution from the instance was premature, as the plaintiff had not yet closed her case and further expert evidence was still to be presented. The plaintiff's cause of action was based on several periods of alleged negligence, not solely on the evidence of the gynaecologist. Granting absolution at this stage would deny the plaintiff a fair hearing and access to justice. The court found no basis to invoke Rule 39(20) to vary the established procedure, nor any constitutional inconsistency in Rule 39(6). The defendant failed to demonstrate that the rule infringed its constitutional rights, and the application was dismissed.

Citation
[2023] ZAGPJHC 535
Parties
Plaintiff: G.E.P obo M.F.L; Defendant: MEC for The Department of Health Gauteng Provincial Government
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 May 2023
Case Number
33632/2014
Procedural Posture
Interlocutory Application / Application for Absolution From the Instance Before Closure of Plaintiff's Case
Outcome
Application dismissed. Defendant's application for absolution from the instance and constitutional invalidity of Rule 39(6) are both refused.
Judges
Molahlehi
Legal Topics
Absolution From the Instance, Medical Negligence, Constitutional Challenge, Uniform Rules of Court, Access to Court
Civil Procedure Delict Absolution From the Instance Medical Negligence Constitutional Challenge Uniform Rules of Court Access to Court

Case Brief

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Parties

G.E.P obo M.F.L

Plaintiff

MEC for The Department of Health Gauteng Provincial Government

Defendant

Procedural Posture

Interlocutory Application / Application for Absolution From the Instance Before Closure of Plaintiff's Case

Legal Issues

  1. 1 Whether the defendant may apply for absolution from the instance before the plaintiff closes her case.
  2. 2 Whether Rule 39(6) of the Uniform Rules of Court is inconsistent with the Constitution.
  3. 3 Whether the plaintiff has made out a prima facie case at the stage of the application.

Ratio Decidendi

The court held that the application for absolution from the instance was premature, as the plaintiff had not yet closed her case and further expert evidence was still to be presented. The plaintiff's cause of action was based on several periods of alleged negligence, not solely on the evidence of the gynaecologist. Granting absolution at this stage would deny the plaintiff a fair hearing and access to justice. The court found no basis to invoke Rule 39(20) to vary the established procedure, nor any constitutional inconsistency in Rule 39(6). The defendant failed to demonstrate that the rule infringed its constitutional rights, and the application was dismissed.

Court Disposition

Application dismissed. Defendant's application for absolution from the instance and constitutional invalidity of Rule 39(6) are both refused.

Orders

  • The defendant’s application for absolution from the instance is dismissed.
  • The application to declare Rule 39(6) of the Uniform Rules of Court inconsistent with the Constitution is dismissed.