Gwambe and Another v Premier of the North- West Province (43/07) [2009] ZANWHC 3 (12 March 2009)

Gwambe and Another v Premier of the North- West Province (43/07) [2009] ZANWHC 3 (12 March 2009)

The court held that Rule 36(3) does not require a formal notice of objection to a medical examination; a written letter suffices. The plaintiffs' objection, though informal and not categorised under the sub-headings of Rule 36(3), was clear in substance and did not prejudice the defendant. The defendant's notice for medical examination was fatally defective for failing to comply with the fifteen-day notice requirement under Rule 36(2), having given less than twenty hours' notice. Furthermore, the defendant had ample opportunity to request the examination prior to trial but failed to do so, and its application at this late stage would unfairly prejudice the plaintiffs and cause unnecessary...

Citation
[2009] ZANWHC 3
Parties
Plaintiff: Thapelo Alphonsina Gwambe; Plaintiff: Mohlaole Johannes Gwambe; Defendant: The Premier of the North West Province
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 March 2009
Case Number
43/07
Procedural Posture
Civil Application / Application to Compel Medical Examination Under Rule 36
Outcome
Application dismissed with costs.
Judges
Gura
Legal Topics
Rule 36 Medical Examination, Notice Requirements, Expert Evidence, Procedural Fairness
Civil Procedure Rule 36 Medical Examination Notice Requirements Expert Evidence Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Thapelo Alphonsina Gwambe

Plaintiff

Mohlaole Johannes Gwambe

Plaintiff

The Premier of the North West Province

Defendant

Procedural Posture

Civil Application / Application to Compel Medical Examination Under Rule 36

Legal Issues

  1. 1 Is a party objecting to a medical examination under Rule 36(5) required to do so by formal notice?
  2. 2 Is the plaintiffs' objection defective for not specifying the relevant sub-head in Rule 36(3)?
  3. 3 Has the defendant made out a case for a further medical examination of the minor child?

Ratio Decidendi

The court held that Rule 36(3) does not require a formal notice of objection to a medical examination; a written letter suffices. The plaintiffs' objection, though informal and not categorised under the sub-headings of Rule 36(3), was clear in substance and did not prejudice the defendant. The defendant's notice for medical examination was fatally defective for failing to comply with the fifteen-day notice requirement under Rule 36(2), having given less than twenty hours' notice. Furthermore, the defendant had ample opportunity to request the examination prior to trial but failed to do so, and its application at this late stage would unfairly prejudice the plaintiffs and cause unnecessary...

Court Disposition

Application dismissed with costs.

Orders

  • The application by the defendant to compel a further medical examination of the minor child is dismissed with costs.