IN THE NORTH WEST HIGH COURT, MAFIKENG
CASE NO: 319/2016
In the matter between:
MEC FOR HEALTH, NORTH WEST PROVINCE Applicant
and
DUMISANI, MR obo BM Respondent
In Re:
DUMISANI, MR obo BM Plaintiff
and
MEC FOR HEALTH, NORTH WEST PROVINCE Defendant
DATE OF HEARING : 06 MAY 2019
DATE OF JUDGMENT : 31 MAY 2019
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FOR THE APPLICANT : ADV. J.F MULLINS SC
with ADV. T PHEHANE
FOR THE RESPONDENTS : ADV. G SHAKOANE SC
with ADV. T MAKGATE
JUDGMENT
HENDRICKS J
Introduction
[1] On the 23rd March 2016, the plaintiff (respondent) instituted an action for
damages against the defendant (applicant) based on alleged medical
negligence. This action is defended and the defendant filed and served a plea on
31st August 2016, disputing the allegations and claim. The plea was later
amended. Pleadings were closed and pre-trial conferences were held in order to
get the matter trial ready. A trial date was applied for and granted. The matter
was set down for trial on 06th to 10th May 2019.
[2] During the second pre-trial conference which was held on the 19th September
2018, the parties agreed that they will both file Rule 36 (9) (b) summaries of their
respective expert’s reports. After an extension was agreed upon, the plaintiff’s
attorneys filed and served their expert summaries, designed and drafted by
plaintiff’s legal representatives.
[3] After receipt of plaintiff’s summaries, the defendant filed and served a notice in
terms of Rule 36 (4) on the 04th April 2019. The plaintiff, in reply to the
defendant’s Rule 36 (4) notice, stated that the information and documents sought
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are privileged and not relevant for the assessment of damages. Therefore, the
information and documents requested are denied.
[4] On the 16th April 2019, the defendant served and filed a notice in terms of Rule
35 (3) and (6) seeking the information and documents mentioned in plaintiff’s
summaries. During the subsequent third teleconference pre-trial, the plaintiff’s
legal representatives acknowledge receipt of the defendant’s Rule 35 (3) and (6)
notice. They reiterate their stance and persist in the denial of the information and
documents. The defendant (applicant) then launched the present application.
[5] In the Notice of Motion the applicant prays for an order in the following terms:
“1. Ordering the Plaintiff to deliver to the defendant the documents
mentioned in the defendant's Rule 35(3) and (6) notice,
particularly the following:
1.1. The documents which constitute the premise, source or
data on or from which the expert summaries are based
or drawn; and
1.2 The medical reports, hospital records, x-ray photographs
or other documentary information from the following
doctors of the Plaintiff:
1.2.1. Dr. S.C. Davis, an obstetrician;
1.2.2. Prof. E.J. Coetzee, an obstetrician and
gynaecologist;
1.2.3. Dr. C.C. Lombard, a paediatrician with experience in
neonatology;
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1.2.4. Prof. S. Andronikou, a diagnostic radiologist and
Professor of radiology; and
1.2.5. Prof. A. Nolte, Professor of nursing.
2. Granting the Defendant costs associated with the making of
this application.”
This application served before this Court on 06th May 2019.
[6] It was contended on behalf of the applicant that this application is intended to
compel the respondent to make available for inspection and the making of copies
of the aforementioned documents, based on the following reasons:
6.1. the respondent’s (plaintiff’s) claim is founded on the said information or
documents and medical or medico-legal reports of the experts mentioned;
6.2. the respondent (plaintiff) has since filed summaries of the said experts’
opinion and evidence based on such information or documents and
reports;
6.3 in such summaries, the respondent’s (plaintiff’s) attorneys or legal
representatives expressly make cross-reference to and have also
included excerpts from such experts’ documents and medical reports or
medico-legal reports; and
6.4 the said medical reports or medico-legal reports and other related
information or documents from the doctors or experts of the respondent,
form or constitute the premise, source or data on or from which the
respondent’s experts’ summaries filed of record, are based or drawn.
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[7] Rule 36 (8) states:
“36 (8) Any party causing an examination to be made in terms of
subrules (1) and (6) shall-
(a) cause the person making the examination to give a
full report in writing of the results of his examination
and the opinions that he formed as a result thereof
on any relevant matter;
(b) after receipt of such report and upon request furnish
any other party with a complete copy thereof; and”
Rule 36 (9) (b) states:
“36. (9) No person shall, save with the leave of the court or the
consent of all parties to the suit, be entitled to call as a
witness any person to give evidence as an expert upon
any matter upon which the evidence of expert witnesses
may be received unless he shall-
(a) not less than fifteen days before the hearing, have
delivered notice of his intention so to do; and
(b) not less than ten days before the trial, have
delivered a summary of such expert's opinion and
his reasons therefor.”
(emphasis added)
[8] In terms of Rule 36 (8) (a), a party causing an examination of a person or thing
may be required to give a full report in writing of the results of his examination
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and the opinion(s) that he formed as a result thereof on any relevant matter. In
terms of Rule 36 (8) (b) the party causing the examination to be conducted must
furnish the report thereof to the other party, upon request. Therefore, if a report
is required, Rule 36 (8) should be applied for. It is quite apparent that Rule 36 (9)
requires delivery of a summary of such experts’ opinion(s) and the reason(s)
therefor. It does not require that the report of the expert had to be disclosed. If
the whole report had to be disclosed in terms of Rule 36 (9), there would not
have been reference to a summary. If it was that Rule 36 (9) would be the same
as Rule 36 (8) (b), then Rule 36 (9) would be superfluous.
[9] In Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH 1976 (3) SA 352 (A), the following is stated:
“ ‘summary’ - (as an adjective) 'compendious, brief, dispensing with
needless details'; (as a noun) 'brief account, abridgement, epitome'.
‘opinion’ - Judgment or belief based on grounds short of proof';
'Formal statement by expert when consulted of what he holds to be
the fact'.
‘reason’ - '(Fact adduced or serving as) argument, motive, cause or
justification.'
In the context in which the phrase 'reasons therefor' is used in Rule
36 (9) (b) it means, or at least includes, the facts or data on which the
opinion is based. The facts or data would include those personally or
directly known to or ascertained by the expert witness, e.g., from
general scientific knowledge, experiments, or investigations
conducted by him, or known to or ascertained by others of which he
has been informed in order to formulate his opinions, e.g.,
experiments or investigations by others, or information from text-
books, which are to be duly proved at the trial. However, 'summary'
also governs 'his reasons therefor'; hence the testimony that the
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expert witness intends to give need not be fully set out in the
summary.
In deciding whether there has been due compliance with sub-rule
(9) (b), it is, in my opinion, relevant to have regard to the main
purpose thereof, which is to require the party intending to call a
witness to give expect evidence to give the other party such
information about his evidence as will remove the element of
surprise, which in earlier times (regarded as an element afforcing a
tactical advantage) frequently caused delays in the conduct of trials.
Indeed, all the sub-rules of Rule 36 were formulated with that
purpose in mind. Consequently, when summarising the facts or data
on which the expert witness premises his opinions, the draughtsman
should ensure that no information is omitted, where the omission
thereof might lead to the other side being taken by surprise when in
due course such information is adduced in cross-examination or
evidence.”
(emphasis added)
[10] The case of Coopers is distinguishable from the present case. The Coopers
case concerned a ruling that the summaries complied with Rule 36(9) and it was
found on appeal by the Appellate Division that it did not. The present case does
not concern a complaint that the summaries does not conform with the
requirements of Rule 36 (9). The reasons for the conclusions/opinions in the
summaries are not under attack, like in the Coopers case.
[11] Adv. Mullins SC, on behalf of the respondent, contended that an expert report
amounts to a witness statement and that it is privileged. He submitted that this
amounts to litigation privilege. In Competition Commission of South Africa v
Arcelormittal South Africa Limited and Others 2013 (5) SA 538 SCA the
following is stated in paragraph [20], [21] and [30]:
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“[20] Litigation privilege is one of two components of legal
professional privilege, the other being the privilege that
attaches to communications between a client and his attorney
for the purpose of obtaining and giving legal advice. Litigation
privilege, with which we are concerned in this case, protects
communications between a litigant or his legal advisor and
third parties, if such communications are made for the purpose
of pending or contemplated litigation. It applies typically to
witness statements prepared at a litigant's instance for this
purpose. The privilege belongs to the litigant, not the witness,
and may be waived only by the litigant.
[21] Litigation privilege has two established requirements: The first
is that the document must have been obtained or brought into
existence for the purpose of a litigant's submission to a legal
advisor for legal advice; and second that litigation was pending
or contemplated as likely at the time.
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[30] There is no reason to doubt that explanation. Moreover, our
courts have held that, subject to certain limited exceptions —
‘the statements in the affidavits of documents are
conclusive with regard to the documents that are . . .
in the possession . . . of a party giving the discovery . .
. as to the grounds stated in support of a claim of
privilege from production for inspection.’
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A court will therefore not lightly go behind averments in an
affidavit to the effect that the likelihood of litigation was
contemplated when the document was procured.”
[12] It was further submitted that this makes quite obvious and plain that
communications between a legal advisor and third parties, if such
communications are made for the purpose of litigation, are privileged. So too, are
reports produced by experts at the request of attorneys for the specific purpose
of litigation, covered by litigation privilege.
[13] I am in full agreement with the submission made by Adv. Mullins SC that expert
reports amount to litigation privilege. A report from an expert witness is in
essence the same as a statement from a lay person as a witness. Both are
covered by litigation privilege if they were obtained for purposes of litigation. This
explains why statements of witnesses are excluded from discovery schedules in
terms of Rule 35 (2).
[14] However, documents provided to the expert on which the expert relied for
purpose of arriving at the conclusions contained in his/her report are treated
differently. However privileged those documents might have been, that privilege
is lost once the expert’s report is provided to the other side in terms of Rule 36
(8). This is however different from where the report of the expert does not
contain information based on a document supplied by the attorney. Such report
of the expert is privilege unless the privilege is waived. There is no indication that
same is applicable in this matter.
[15] Adv. Shakoane SC, on behalf of the applicant, submitted that the applicant is
entitled to the expert reports mentioned in the summaries. This is based on the
fact that there is reference to these expert reports as the base or data for the
summaries and the privilege that might have been incurred, is waived. In
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Competition Commission of South Africa v Arcelormittal case, supra, the
following is stated:
“[33] Waiver may be express, implied or imputed. It is implied if
the person who claims the privilege discloses the contents of
a document, or relies upon it in its pleadings or during court
proceedings. It would be implied too if only part of the
document is disclosed or relied upon. For a waiver to be
implied the test is objective, meaning that it must be judged
by its outward manifestations, in other words, from the
perspective of how a reasonable person would view it. It
follows that privilege may be lost, as the English courts have
held, even if the disclosure were inadvertent or made in
error. Imputed waiver occurs when fairness requires the
court to conclude that privilege was abandoned. The
respondents contend that in this case the loss of privilege is
implied or to be imputed to the commission. The commission
submits that the bare references to the leniency application
in the referral affidavit did not amount to a waiver of privilege.
[34] I appreciate that a bare reference to a document in a
pleading, without more, may be insufficient to constitute a
waiver, whereas the disclosure of its full contents may
constitute a waiver. Where the line is drawn between these
extremes is a question of degree, which calls for a value
judgment by the court. When that line is crossed the privilege
attached to the whole document, and not just the part of the
document that was referred to, is waived. The reason is that
courts are loath to order disclosure of only part of a
document because its meaning may be distorted. But it must
also be so that it does not inevitably follow that because part
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of a document is disclosed, privilege is lost in respect of the
whole document. This would be so where a document
consists of severable parts and is capable of severance. I
turn to the facts here.”
[16] I am of the view that the respondent did not waive its privilege on the expert
reports in this matter. I am of the view that the applicant did not succeed in
making out a case for the relief prayed for in the Notice of Motion. The
application stands to be dismissed.
Costs
[17] Both parties were ad idem that the matter was not ready to proceed with on trial,
despite the fact that it was set down for a week. It is quite apparent from the
papers filed that this application could have been enrolled much earlier during
February 2019. This application was only served and filed on 16th April 2019,
shortly before the date of trial. Had it been filed earlier, perhaps it could have
been disposed of earlier and the trial would have commenced on the date on
which it was set down for it to commence. Be that as it may, in my view there is
no plausible reason why costs should not follow the result and be awarded in
favour of the respondent (plaintiff). As a result of the complexity of the matter and
its import to both parties, the costs of two counsel (senior and junior) are
warranted.
Order:
[18] Consequently, the following order is made:
18.1 The application to compel compliance in terms of the Rule 35 (3) and (6)
notice is dismissed with costs on a party-and-party basis. Such costs to
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include the costs consequent upon the employment of two counsel
(Senior and junior)
18.2 The matter (action) is postponed sine die in order to obtain a trial date
from the Registrar of this Court and/or the Judge President.
18.3 The defendant in the main action is ordered to pay the wasted costs
occasioned by the postponement on a party-and-party basis. Such costs
to include the costs consequent upon the employment of two counsel
(Senior and junior)
_______________
R D HENDRICKS
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
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