Rossaak v Van Der Walt and Others (8185/06) [2008] ZAGPHC 308 (29 August 2008)

Rossaak v Van Der Walt and Others (8185/06) [2008] ZAGPHC 308 (29 August 2008)

The court found that both parties had initially agreed to proceed on the special plea of prescription, which, if successful, could have truncated the proceedings and saved costs. Upon re-evaluation, both parties agreed it was no longer convenient to proceed in this manner, as expert evidence would be required for both prescription and merits, making separation impractical. The court held that neither party could be faulted for the postponement, and that apportioning blame would be inappropriate. The discretion regarding costs must be exercised to avoid unfairly penalizing either party, especially in light of their agreement and the need for expert evidence. The court concluded that the...

Citation
[2008] ZAGPHC 308
Parties
Plaintiff: BVM Rossaak; Defendant: Prof. H Van Der Walt; Defendant: Drs Dubuisson, Bruinette & Kramer Inc; Defendant: Dr. T Slavak
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 August 2008
Case Number
8185/06
Procedural Posture
Civil Action / Costs Determination Following Postponement of Hearing on Special Plea of Prescription
Outcome
Costs of the hearing on 22 August 2008 are reserved.
Judges
N M Mavundla
Legal Topics
Special Plea of Prescription, Separation of Issues, Costs Discretion, Medical Negligence
Civil Procedure Delict Special Plea of Prescription Separation of Issues Costs Discretion Medical Negligence

Case Brief

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Parties

BVM Rossaak

Plaintiff

Prof. H Van Der Walt

Defendant

Drs Dubuisson, Bruinette & Kramer Inc

Defendant

Dr. T Slavak

Defendant

Procedural Posture

Civil Action / Costs Determination Following Postponement of Hearing on Special Plea of Prescription

Legal Issues

  1. 1 Should the costs occasioned by the postponement of the hearing on the special plea of prescription be awarded, reserved, or made costs in the course?
  2. 2 Is either party to blame for the postponement after both agreed it was no longer convenient to proceed on the special plea?
  3. 3 Does the separation of issues under Rule 33(4) serve the interests of justice in this matter?

Ratio Decidendi

The court found that both parties had initially agreed to proceed on the special plea of prescription, which, if successful, could have truncated the proceedings and saved costs. Upon re-evaluation, both parties agreed it was no longer convenient to proceed in this manner, as expert evidence would be required for both prescription and merits, making separation impractical. The court held that neither party could be faulted for the postponement, and that apportioning blame would be inappropriate. The discretion regarding costs must be exercised to avoid unfairly penalizing either party, especially in light of their agreement and the need for expert evidence. The court concluded that the...

Court Disposition

Costs of the hearing on 22 August 2008 are reserved.

Orders

  • The costs of the 22 August 2008 hearing are reserved.