Pentree Limited v Nelson Mandela Bay Municipality (3119/2013) [2017] ZAECPEHC 59 (12 December 2017)

Pentree Limited v Nelson Mandela Bay Municipality (3119/2013) [2017] ZAECPEHC 59 (12 December 2017)

The court found that although the defendant's Rule 36(9) notices regarding Mr Rode were filed late, both parties had previously filed numerous expert notices after the commencement of trial without objection. The criticisms by Rode were strictly rebuttal evidence to Falck's valuation and did not constitute surprise, as the plaintiff had ample notice and opportunity to prepare. The court held that expert witnesses are required to be impartial and that the integrity of their evidence is not compromised by consultation during cross-examination in these circumstances. The interests of justice required that the late filing be condoned, and any prejudice could be cured by postponement and...

Citation
[2017] ZAECPEHC 59
Parties
Plaintiff: Pentree Limited; Defendant: Nelson Mandela Bay Municipality
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
12 December 2017
Case Number
3119/2013
Procedural Posture
Civil Application / Interlocutory Application During Ongoing Trial; Application to Preclude Expert Evidence and Set Aside Notices as Irregular.
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
J W Eksteen
Legal Topics
Expert Evidence, Rule 36 Notices, Expropriation Act, Condonation of Irregular Steps
Civil Procedure Expert Evidence Rule 36 Notices Expropriation Act Condonation of Irregular Steps

Case Brief

Summary, issues, holding and outcome

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Parties

Pentree Limited

Plaintiff

Nelson Mandela Bay Municipality

Defendant

Procedural Posture

Civil Application / Interlocutory Application During Ongoing Trial; Application to Preclude Expert Evidence and Set Aside Notices as Irregular.

Legal Issues

  1. 1 Whether the defendant should be precluded from relying on the expert evidence of Mr Rode during cross-examination and as a witness due to late filing of Rule 36(9) notices.
  2. 2 Whether the delivery of the Rule 36(9) notices constitutes an irregular step that should be set aside under Rule 30(3).
  3. 3 Whether the late filing of expert notices causes incurable prejudice to the plaintiff.

Ratio Decidendi

The court found that although the defendant's Rule 36(9) notices regarding Mr Rode were filed late, both parties had previously filed numerous expert notices after the commencement of trial without objection. The criticisms by Rode were strictly rebuttal evidence to Falck's valuation and did not constitute surprise, as the plaintiff had ample notice and opportunity to prepare. The court held that expert witnesses are required to be impartial and that the integrity of their evidence is not compromised by consultation during cross-examination in these circumstances. The interests of justice required that the late filing be condoned, and any prejudice could be cured by postponement and...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application to preclude the defendant from relying on the evidence of Mr Rode and to set aside the Rule 36(9) notices is dismissed.
  • The costs of the application are awarded to the defendant, including the costs of two counsel.