Millicent Molose obo Avile Molose v Member of the Executive Council for Health:Eastern Cape Province (1182/2017) [2019] ZAECMHC 16 (12 March 2019)

Millicent Molose obo Avile Molose v Member of the Executive Council for Health:Eastern Cape Province (1182/2017) [2019] ZAECMHC 16 (12 March 2019)

The court found that the defendant and its attorneys had received proper notice of the trial date and failed to act with the required diligence. The suspicions of fraud against the plaintiff's attorney were unsubstantiated and based on media reports and hearsay, which do not constitute objective evidence. The court held that the defendant's application for postponement was necessitated by its own failures and not by any misconduct on the part of the plaintiff or her attorney. The court exercised its discretion to postpone the matter sine die to allow the defendant time to investigate the fraud allegations, but made it clear that such allegations must be substantiated through proper legal...

Citation
[2019] ZAECMHC 16
Parties
Plaintiff: Millicent Molose obo Avile Molose; Defendant: Member of the Executive Council for Health: Eastern Cape Province
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
12 March 2019
Case Number
1182/2017
Procedural Posture
Civil Trial / Postponement Application After Merits Judgment; Quantum Undetermined
Outcome
The trial was postponed sine die for determination of quantum; the defendant was ordered to pay costs on an attorney and client scale.
Judges
Jolwana
Legal Topics
Medical Negligence, Postponement of Trial, Cerebral Palsy, Quantum of Damages, Attorney Ethics
Civil Procedure Delict Family and Children Medical Negligence Postponement of Trial Cerebral Palsy Quantum of Damages Attorney Ethics

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Parties

Millicent Molose obo Avile Molose

Plaintiff

Member of the Executive Council for Health: Eastern Cape Province

Defendant

Procedural Posture

Civil Trial / Postponement Application After Merits Judgment; Quantum Undetermined

Legal Issues

  1. 1 Whether the defendant's application for postponement of the quantum hearing should be granted.
  2. 2 Whether there was proper notice and conduct by the defendant's legal representatives regarding the set down of trial.
  3. 3 Whether allegations of fraud against the plaintiff's attorney have any bearing on the proceedings.

Ratio Decidendi

The court found that the defendant and its attorneys had received proper notice of the trial date and failed to act with the required diligence. The suspicions of fraud against the plaintiff's attorney were unsubstantiated and based on media reports and hearsay, which do not constitute objective evidence. The court held that the defendant's application for postponement was necessitated by its own failures and not by any misconduct on the part of the plaintiff or her attorney. The court exercised its discretion to postpone the matter sine die to allow the defendant time to investigate the fraud allegations, but made it clear that such allegations must be substantiated through proper legal...

Court Disposition

The trial was postponed sine die for determination of quantum; the defendant was ordered to pay costs on an attorney and client scale.

Orders

  • The trial is postponed to a preferential date to be arranged with the Registrar for the determination of quantum.
  • Mr van Schalkwyk (Deputy State Attorney) is to provide written reasons on or before 15 March 2019 as to why this case is to be regarded as a fraudulent claim.