Pollmann and Another v Minister of Health and Social Services and Others (HC-MD-CIV-ACT-DEL-2023/01069) [2024] NAHCMD 216 (8 May 2024)

Flynote

Practice – Condonation – Alarmingly many condonation applications reflect need for transformation – High Court r 17(2) – Court has the primary responsibility to control and manage cases – Court should set transformation in motion through implementation of the law – Court may on application, made without delay, supported by evidence, on good cause shown, condone non-compliance with court order while considering, amongst others, the circumstances set out in r 56 – Requirements for good cause, both to be met on papers submitted, restated – Need not ‘prove’ a reasonable prospect of success or provide evidence of it, but court has discretion to condone non-compliance, and if essential information enabling court to assess prospects of success is not set forth, court may conclude a party did not show a reasonable prospect of success.

Case summary

The defendants seek condonation for their failure to file their consequential amended plea and their condonation application for their consequential amended plea as ordered, and they seek upliftment of the bar operative against them in respect of their consequential amended plea. The defendants abandoned their prayer for costs against the plaintiffs and tender the plaintiffs’ wasted costs limited to High Court r 32(11). Under the court order dated 26 September 2023, the consequential amended plea was due on 10 October 2023. The court, on three separate occasions, on 7 November 2023, 13 December 2023, and 14 February 2024, ordered the defendants to file their condonation application for their consequential amended plea, and they failed, on all three occasions, to do so. It was only after the court, on 13 March 2024, ordered the defendants to show cause why they should not pay certain costs of the plaintiffs, why their plea and defence should not be struck out with costs and why the matter should not proceed unopposed that the defendants filed their condonation application on 28 March 2024, more than five months after the consequential amended plea was due. The plaintiffs oppose the application on the basis that r 32(9) and (10) were not complied with and that good cause was not shown and pray that the application be dismissed with costs.

 

Held that in following a previous decision of the court, the application is determined on its merits despite non-compliance with r 32(9) and (10).

 

Held that the alarming number of condonation applications reflects a need for transformation, and the court, having the primary responsibility to control and manage cases, should set transformation in motion through implementation of the law.

 

Held that under r 54(3), the defendants are barred from delivering their consequential amended plea, but under r 56, the court may on application for relief from that adverse consequence, made without delay, supported by evidence, on good cause shown, condone the defendants’ non-compliance with the court order of 26 September 2023 while considering, amongst others, the circumstances set out in r 56.  

 

Held that both requirements for good cause must be met on the papers submitted by explaining the delay fully, in detail and accurately so that the court can clearly understand the reasons for it and showing a reasonable prospect of success on the merits.

 

Held that no explanation is provided for the defendants’ failure to file the consequential amended plea on 10 October 2023 and the condonation application by 24 November 2023 and even before that when the defaults occurred, and the remainder of the explanation is unreasonable, insufficient and lacks particularity, the application was not made promptly, the delay is substantial, the defendants and their legal practitioner intentionally disregarded various court orders, and the failure was caused by the defendants as well as their legal practitioner.

 

Held that while r 56(2) should not be interpreted to mean that an applicant must ‘prove’ that it has a reasonable prospect of success or provide evidence of its prospect of success, the court has the discretion to condone the non-compliance,  and it is advisable that such essential information as would enable the court to assess prospects of success be set forth and, if an applicant provides too little information for the court to assess its prospects of success, the court may conclude that it did not show a reasonable prospect of success.

 

Held that the defendants failed to show that they have a reasonable prospect of success.


REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK


RULING


Case number: HC-MD-CIV-ACT-DEL-2023/01069

Interlocutory case number: INT-HC-UPLIFBAR-2024/00168


In the matter between:


YVONNE POLLMANN

FIRST PLAINTIFF

RODNEY GAZZA POLLMANN


SECOND PLAINTIFF

and


THE MINISTER OF HEALTH AND SOCIAL SERVICES

FIRST DEFENDANT

DR. BITI

SECOND DEFENDANT

DR. FELIX MUTOMBO


THIRD DEFENDANT

Neutral citation:

Pollmann v The Minister of Health and Social Services (HC-MD-CIV-ACT-DEL-2023/01069) [2024] NAHCMD 216 (8 May 2024)


Coram:

DE JAGER AJ

Heard:

16 April 2024

Delivered:

8 May 2024


Flynote: Practice – Condonation – Alarmingly many condonation applications reflect need for transformation – High Court r 17(2) – Court has the primary responsibility to control and manage cases – Court should set transformation in motion through implementation of the law – Court may on application, made without delay, supported by evidence, on good cause shown, condone non-compliance with court order while considering, amongst others, the circumstances set out in r 56 – Requirements for good cause, both to be met on papers submitted, restated – Need not ‘prove’ a reasonable prospect of success or provide evidence of it, but court has discretion to condone non-compliance, and if essential information enabling court to assess prospects of success is not set forth, court may conclude a party did not show a reasonable prospect of success.


Summary: The defendants seek condonation for their failure to file their consequential amended plea and their condonation application for their consequential amended plea as ordered, and they seek upliftment of the bar operative against them in respect of their consequential amended plea. The defendants abandoned their prayer for costs against the plaintiffs and tender the plaintiffs’ wasted costs limited to High Court r 32(11). Under the court order dated 26 September 2023, the consequential amended plea was due on 10 October 2023. The court, on three separate occasions, on 7 November 2023, 13 December 2023, and 14 February 2024, ordered the defendants to file their condonation application for their consequential amended plea, and they failed, on all three occasions, to do so. It was only after the court, on 13 March 2024, ordered the defendants to show cause why they should not pay certain costs of the plaintiffs, why their plea and defence should not be struck out with costs and why the matter should not proceed unopposed that the defendants filed their condonation application on 28 March 2024, more than five months after the consequential amended plea was due. The plaintiffs oppose the application on the basis that r 32(9) and (10) were not complied with and that good cause was not shown and pray that the application be dismissed with costs.


Held that in following a previous decision of the court, the application is determined on its merits despite non-compliance with r 32(9) and (10).


Held that the alarming number of condonation applications reflects a need for transformation, and the court, having the primary responsibility to control and manage cases, should set transformation in motion through implementation of the law.


Held that under r 54(3), the defendants are barred from delivering their consequential amended plea, but under r 56, the court may on application for relief from that adverse consequence, made without delay, supported by evidence, on good cause shown, condone the defendants’ non-compliance with the court order of 26 September 2023 while considering, amongst others, the circumstances set out in r 56.


Held that both requirements for good cause must be met on the papers submitted by explaining the delay fully, in detail and accurately so that the court can clearly understand the reasons for it and showing a reasonable prospect of success on the merits.


Held that no explanation is provided for the defendants’ failure to file the consequential amended plea on 10 October 2023 and the condonation application by 24 November 2023 and even before that when the defaults occurred, and the remainder of the explanation is unreasonable, insufficient and lacks particularity, the application was not made promptly, the delay is substantial, the defendants and their legal practitioner intentionally disregarded various court orders, and the failure was caused by the defendants as well as their legal practitioner.


Held that while r 56(2) should not be interpreted to mean that an applicant must ‘prove’ that it has a reasonable prospect of success or provide evidence of its prospect of success, the court has the discretion to condone the non-compliance, and it is advisable that such essential information as would enable the court to assess prospects of success be set forth and, if an applicant provides too little information for the court to assess its prospects of success, the court may conclude that it did not show a reasonable prospect of success.


Held that the defendants failed to show that they have a reasonable prospect of success.

_______________________________________________________________


ORDER

_______________________________________________________________


1. The application under INT-HC-UPLIFBAR-2024/00168 is dismissed with costs limited to High Court r 32(11).


2. The matter under INT-HC-UPLIFBAR-2024/00168 is finalised and removed from the roll.


3. The defendants shall pay the plaintiffs' costs for the appearances of 7 November 2023, 13 December 2023, 14 February 2024 and 13 March 2024 jointly and severally, the one paying the other to be absolved.


4. The defendants' pleas dated 23 May 2023 and 28 March 2024 (insofar as those pleas are before the court) and the defendants’ defence are struck out with costs.


5. The matter under HC-MD-CIV-ACT-DEL-2023/01069 shall proceed unopposed.


6. The matter under HC-MD-CIV-ACT-DEL-2023/01069 is postponed to 5 June 2024 at 08h30 for a status hearing.


7. The plaintiffs shall file a status report on or before 30 May 2024 on the further conduct of the matter.











_______________________________________________________________


RULING

_______________________________________________________________


DE JAGER AJ:


Introduction


[1] The defendants are in default of filing their consequential amended plea which was due on 10 October 2023. The court, on three separate occasions, on 7 November 2023, 13 December 2023, and 14 February 2024, ordered the defendants to file their condonation application for the consequential amended plea. The defendants failed, on all three occasions, to do so. It was only after the court, on 13 March 2024, ordered the defendants to show cause why they should not pay certain costs of the plaintiffs, why their plea and defence should not be struck out with costs and why the matter should not proceed unopposed that the defendants filed their condonation application on 28 March 2024, more than five months after the consequential amended plea was due.


[2] Disturbingly, the defendants’ counsel submits the delay was not long. The alarming number of condonation applications detaining the court’s valuable time and resources reflects a need for transformation. The court, having the primary responsibility to control and manage cases,1 should set transformation in motion through implementation of the law.


[3] The defendants, in their notice of motion, seek condonation for non-compliance with the court orders dated 26 September 2023 and 14 February 2024 on the late filing of their consequential amended plea and their condonation application itself, upliftment of the bar operative against them in respect of their consequential amended plea, and costs if opposed. In their heads of argument, they seek condonation for non-compliance with court orders dated 26 September 2023, 24 November 2023, 31 January 2024 and 4 March 2024. There are no court orders dated 24 November 2023 and 4 March 2024. The relevant details of the court orders referred to are set out below. The defendants, wisely so, abandoned their prayer for costs against the plaintiffs and tender the plaintiffs’ wasted costs limited to High Court r 32(11).


[4] The plaintiffs oppose the application on the basis that r 32(9) and (10) were not complied with and that good cause was not shown. They pray that the application be dismissed with costs.


[5] The court follows QKR Namibia Navachab Gold Mine (Pty) Ltd v Kwala,2 in which it was concluded that r 32(9) and (10) do not apply to condonation applications and determines the application on its merits despite those rules not being complied with.


Background facts


[6] The background facts leading to the condonation application are as follows.


[7] The plaintiffs (Yvonne Pollmann and Rodney Gazza Pollmann) instituted action against the defendants (the Minister of Health and Social Services, Dr Biti and Dr Felix Mutombo) in March 2023.


[8] In the court order dated 26 April 2023, the defendants were ordered to file their plea on or before 23 May 2023. The plea was filed on 23 May 2023 at 16h43.


[9] The plaintiffs gave notice that they intend to amend their particulars of claim. The defendants did not object to that intention. The amended particulars of claim was filed on 26 September 2023 and includes the following allegations.


(a) The plaintiffs are married to each other. Dr Biti and Dr Mutombo, both medical doctors, are employed at Otjiwarongo State Hospital (the hospital).


(b) On 6 March 2022, at around 18h00, Ms Pollmann was admitted to the hospital’s maternity ward on account of excruciating abdominal pain and backache, which persisted until a caesarean section was performed on her on 8 March 2022 at 01h15. Notwithstanding the pain, Ms Pollmann was made to wait for 12 hours before the caesarean section was performed. The baby was not continuously monitored. Since Ms Pollman’s admission, no sonar was performed, no blood tests were performed, and her pleas for an emergency caesarean section were ignored.


(c) On 7 March 2022 at 17h20, Ms Pollmann was administered Cytotec orally and vaginally to accelerate the labour and/or contractions within two hours, failing which an emergency caesarean section would be performed. There was excessive dosing of the vaginal Cytotec. Ms Pollmann’s excruciating pain and backache led to the unborn baby releasing meconium. No induction of labour observations in terms of the frequency and duration of contractions was monitored.


(d) Nothing was done until 01h15 on 8 March 2022, when the caesarean section was performed, and the birth was registered as a ‘fresh stillbirth’. There was a prolonged period from the initial diagnosis of fetal distress to the delivery of a stillborn baby. No resuscitation was performed on the baby upon birth.


(e) Ms Pollman experienced severe and prolonged pain, excretion of blood and unknown fluids, bodily discomfort, and severe suffering. Immediately before and shortly after the birth and due to the prolonged delivery, the baby experienced suffocation, perinatal asphyxia, and severe brain damage.


(f) The negligence of the defendants’, alternatively, the first defendants’ employees, caused the damages sustained by Ms Pollman and the baby in that the caesarean section was not performed within two hours or as required from the time of administering the Cytotec (which had severe adverse consequences for Ms Pollmann and the unborn baby), the caesarean section was performed too late (which caused Ms Pollmann to experience severe and excruciating abdominal pain, backache, excretion of blood, bodily discomfort, pain and suffering, severe bodily harm and severe psychological pain and suffering), they acted without due and proper care and diligence, they failed to take reasonable steps to ensure the unborn baby would not sustain complications, bodily damages and injuries, they failed to act with reasonable professional skill, and they failed to resuscitate the baby upon birth.


(g) The plaintiffs claim N$1 000 000 for emotional shock and trauma, N$1 000 000 for inconvenience and discomfort, N$1 000 000 for loss of amenities, and N$1 000 000 for future medical expenses for psychological counselling to deal with the baby’s death.


[10] Under the court order dated 26 September 2023, issued in chambers and based on a joint status report, the defendants’ consequential amended plea had to be filed no later than 10 October 2023. The matter was furthermore postponed to 1 November 2023 for a case management conference.


[11] On 27 September 2023, after having heard counsel for the parties, the defendants were ordered to file their consequential amended plea no later than 18 October 2023 and the matter was postponed to 8 November 2023 for a case management conference. The parties are ad idem that the plea was due on 10 October 2023, not 18 October 2023. The court will, therefore, work on the date of 10 October 2023, not 18 October 2023.


[12] The defendants failed to file their consequential amended plea, and in a joint status report dated 3 November 2023, the parties sought a postponement to enable the defendants to file their condonation application.


[13] In the court order dated 7 November 2023, issued in chambers, the matter was postponed to 13 December 2023 so that the defendants could bring their condonation application no later than 24 November 2023.


[14] The defendants did not file their condonation application. In a status report dated 12 December 2023, the defendants sought an indulgence to enable their legal practitioners to consult them and engage the plaintiffs on a possible settlement as they were given an expert report by the plaintiffs on the basis whereof they sought a postponement to take settlement instructions.


[15] On 13 December 2023, the matter was postponed to 14 February 2024, and the defendants were ordered to file their condonation application no later than 31 January 2024.


[16] In a status report dated 9 February 2024, the plaintiffs reported that the parties had not engaged in settlement negotiations up to that point. The plaintiffs were no longer interested in settlement negotiations and wanted to move for default judgment.


[17] The defendants, in a status report dated 13 February 2024, reported as follows. No settlement offer was provided by the defendants. Their failure to do so and their failure to file a condonation application were blamed on the fact that Mr Siseho, who was responsible for providing instructions on civil matters, retired from the first defendant’s employ and all his matters were reassigned to colleagues who indicated they require more time to apply their minds to provide instructions on a possible settlement. The defendants sought a postponement to obtain instructions.


[18] On 14 February 2024, the plaintiffs were amenable to the defendants being granted a final postponement. The court expressed its displeasure with the way the matter was dealt with and cautioned the defendants that at the next court appearance, directions would be provided in accordance with the overriding objective of the High Court Rules. The court ordered the defendants to deliver their condonation application on or before 4 March 2024 and the matter was postponed to 13 March 2024.


[19] The defendants did not file their condonation application. The plaintiffs, in a status report dated 7 March 2024, indicated the defendants’ legal practitioners are still desirous to settle the matter and arranged to consult with their clients during the week of 11 to 15 March 2024 and would engage the plaintiffs during that week. The plaintiffs again wanted to move for default judgment.


[20] In the court order dated 13 March 2024, it was ordered that the defendants and their legal practitioners must show cause, on or before 28 March 2024, why the defendants should not be ordered to pay the plaintiffs' costs for the appearances of 7 November 2023, 13 December 2023, 14 February 2024 and 13 March 2024, why the defendants' plea should not be struck out with costs, why the defendants' defence should not be struck with costs, and why the matter should not proceed unopposed. The matter was furthermore postponed to 3 April 2024 for a sanctions hearing.


[21] The application now before the court was launched on 28 March 2024. The defendants’ consequential amended plea was also filed on 28 March 2024, but only to demonstrate their prospects of success.


[22] On 3 April 2024, the plaintiffs indicated their intention to oppose the condonation application. The court gave directions for the exchange of papers in the condonation application and the condonation application was postponed to 16 April 2024 for hearing.


The relevant law


[23] The law applicable to the condonation application at hand include the following.


[24] If a party fails to deliver a pleading within the time stated in the case plan order, as in the matter before the court, albeit a ‘court order’ and not a ‘case plan order’, that party is, under r 54(3), in default of filing such pleading and is, by that very fact, barred. The defendants are thus barred from delivering their consequential amended plea.3 It is pointed out that whereas the defendants’ plea was filed at 16h43 on 23 May 2023, it was filed late.4


[25] The court may, on application for relief from the adverse consequence brought about by r 54(3), supported by evidence, on good cause shown, condone the defendants’ non-compliance with the court order of 26 September 2023.5 Under r 56(1), the court should consider various circumstances set out therein. That list is, however, not exhaustive.


[26] The Supreme Court, in Solsquare Energy (Pty) Ltd v Lühl,6 said it was trite that ‘once there has been non-compliance, an applicant should without delay apply for condonation and comply with the rules’. With reference to Balzar v Vries,7 the Supreme Court drew attention to the settled position that to succeed with a condonation application, it is required to meet the two requirements of ‘good cause’, which entail establishing a reasonable and acceptable explanation and satisfying the court that there are reasonable prospects of success. The Supreme Court also referred to Beukes and Another v South West Africa Building Society (SWABOU) and Others,8 where it said an applicant has to make a case ‘on the papers submitted’ to explain the delay and failure to comply with the rules and the explanation must be full, detailed and accurate for the court to clearly understand the reasons for it. Regarding the factors relevant to determining a condonation application, the Supreme Court referred to Arangies t/a Auto Tech v Quick Build9 wherein the position was summarised as follows:


‘[5] The application for condonation must thus be lodged without delay, and must provide a full, detailed and accurate explanation for it. This court has also recently considered the range of factors relevant to determining whether an application for condonation for the late filing of an appeal should be granted. They include —

"the extent of the non-compliance with the rule in question, the reasonableness of the explanation offered for the non-compliance, the bona fides of the application, the prospects of success on the merits of the case, the importance of the case, the respondent's (and where applicable, the public's) interest in the finality of the judgment, the prejudice suffered by the other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in the administration of justice."

These factors are not individually determinative, but must be weighed, one against the other. Nor will all the factors necessarily be considered in each case. There are times, for example, where this court has held that it will not consider the prospects of success in determining the application because the non-compliance with the rules has been "glaring", "flagrant", and "inexplicable".'


The explanation


[27] The court now considers the first requirement for good cause.


[28] The explanation for why the condonation application was not filed on or before 24 November 2023 as ordered on 7 November 2023, the plaintiffs’ answer thereto, and the court’s determination thereon are as follows.


[29] The plaintiffs say the defendants did not explain why the consequential amended plea, which was due on 10 October 2023, was not filed as the defendants’ legal practitioner only explained why the condonation application was not filed timely. In reply, the defendants’ legal practitioner says the same reasons apply for why the consequential amended plea was not filed. The court considers the reasons provided as applicable to both defaults.


[30] The defendants’ legal practitioner says she received an expert report from the plaintiffs’ legal practitioners, and after considering it, it was decided to engage the plaintiffs’ legal practitioners on a possible settlement after obtaining instructions. The defendants omitted to say when the expert report was received. The plaintiffs say it was shared with the defendants’ legal practitioners on 27 November 2023, more than a month after the consequential amended plea was due and three days after the condonation application was due for the first time. The court draws an adverse inference from the defendants’ omission to say when the expert report was received and their attempt to use it as an excuse for their defaults. Clearly, an explanation was required as to why the defaults occurred prior to receipt of the expert report. Based on the date when the expert report was shared, the omission illustrates the defendants are not frank with the court, and the explanation pertaining to the expert report is no explanation at all for the defaults.


[31] The defendants’ legal practitioner further says that instructions could, however, not be obtained because Mr Joseph Siseho, the deputy director in the legal department of the first defendant who was the responsible person for providing instructions, retired and ‘resigned’ at the end of November 2023. She explains his matters were only reassigned to another official during December 2023 / January 2024, and the defendants’ legal practitioner was informed the employees to whom the matters were reassigned required more time to acquaint themselves with the various matters and to apply their minds. Without providing any explicit explanation, she says the December 2023 / January 2024 period was furthermore problematic as it was the festive season. The explanation is not specific to the matter before the court; it is a general explanation in respect of all matters concerning the first defendant. No details are provided as to steps taken by the defendants and their legal practitioner to comply with the court orders relating to the matter now before the court. Based on the explanation, the court orders were ignored. Notwithstanding the court order, it was decided to rather engage in settlement negotiations at the defendants’ own leisure and to do nothing until the first defendants’ employees, seemingly at their own leisure, could apply their minds.


[32] The plaintiffs point out Mr Siseho only resigned at the end of November 2023. Hence, he was available when the defaults occurred in filing the consequential amended plea and the condonation application when initially ordered to do so. The plaintiffs argue that the expert report and Mr Siseho’s resignation are not excuses for the defaults. The court agrees with the plaintiffs in that regard. The court expresses its displeasure with the defendants’ attempt to use the expert report as an excuse while it was provided to their legal practitioner long after the consequential amended plea was due and also after the condonation application was due for the first time and to make decisions on how to deal with the matter going forward notwithstanding the court orders.


[33] On 7 November 2023, the defendants were ordered to file their condonation application by 24 November 2023. During that period, Mr Siseho was still employed by the first defendant. The default occurred on 10 October 2023, and from that day, the defendants had a duty to apply for condonation. The defendants did not provide any explanation as to why they did not apply for condonation prior to 7 November 2023 as soon as the default occurred without being ordered to do so.


[34] During February 2024, the defendants’ legal practitioner engaged and consulted with Ms Hilma Niitembu Naimbale, to whom the matter was assigned and who was seconded to the first defendant’s legal department from the Attorney General’s office, to obtain instructions and prepare the condonation application. During the engagement, it was concluded they had to travel to the hospital during the week of 11 to 15 March 2024 to consult all medical personnel who were involved in Ms Pollmann’s treatment and to consider all medical records at the hospital. The consultation could not take place because the defendants’ legal practitioner was inundated with other matters. The defendants’ decision to ignore the court orders continued. Notwithstanding the court orders, the defendants again decided how they would deal with the matter going forward at their own leisure. Ms Naimbale and the defendants’ legal practitioner engaged and consulted during February 2024 but decided to disregard the court order and first take instructions during the week of 11 to 15 March 2024, six days after the condonation application was due for the third time. No details are provided of the other matters which engaged the defendants’ legal practitioner to explain why they were more important than the matter before the court in which the defendants were in default of various court orders since October and November 2023.


[35] The defendants’ legal practitioner further explains as follows. The Government Attorney’s office has a high staff turnover, and there is a lack of experienced legal officers, which resulted in the legal practitioner taking on more work than she could handle. That office is the only office representing all government offices in all fourteen regions, and they may not refuse work coming in from government clients. Their budget to outsource matters to private legal practitioners was depleted. That contributed to the legal practitioner being overworked and not able to comply with the timelines, coupled with Mr Siseho’s retirement and the delay in reassigning the matter. The court finds that the defendants’ legal practitioner’s workload, being a public service, is considered, but there is a limit beyond which it would not assist the defendants. The defendants have been in default of various court orders since October and November 2023. Surely, by February 2024, the matter before the court required an intervention and the utmost urgent attention. The luxury of festive holidays, weekends, and eight hours of sleep every night and also other tasks would have to give way to such an urgent matter. The defendants did not illustrate that the matter received the attention it required. The defendants simply made decisions putting the plaintiffs and the court on hold for its own business, whatever that was.


[36] The defendants’ legal practitioner further explains it is a medical negligence claim which requires consultation with experts and the medical personnel who attended to Ms Pollmann’s treatment, and in the absence thereof, the defendants’ legal practitioner was not able to comprehend the medical terms relating to whether or not there was excessive use of the ‘Cytotec pill to accelerate labour/contractions’, ‘meconium’, ‘ no resuscitation performed’, and a ‘failure to perform caesarean section within two hours’ as alleged.


[37] According to the plaintiffs, the amended particulars of claim did not change the nature of the claim, and when the defendants initially decided to oppose it, it would have been prudent to obtain an expert opinion and not present fanciful defences. They say the founding affidavit does not indicate whether that was done or if they only consulted the personnel involved. The court agrees with the plaintiffs. The steps which the defendants’ legal practitioner took in February / March 2024 to consult experts and the personnel at the hospital and to inspect the records at the hospital are all things that had to be done before the initial plea was filed. The nature of the amendments was not such that the defendants’ legal practitioner would have to reinvent the wheel. A follow-up consultation would have been required for the consequential amended plea. The defendants failed to provide the court with information to enable it to understand why the defendants and their legal practitioners dealt with the matter as they did.


[38] The defendants’ legal practitioner says she consistently engaged her clients to obtain the necessary documentation and instructions to draft the consequential amended plea. That explanation is insufficient. The defendants’ legal practitioner failed to provide the court with details about those engagements, and if there were consistent engagements, the defendants themselves do not explain why they were ignored.


[39] The plaintiffs complain that the defendants’ reasons do not explain why the defendants’ legal practitioner could not apply for an extension of time when it became apparent the deadlines could not be met. The defendants’ legal practitioner says the condonation application could only be filed after engaging the defendants and the officials to whom the matters were reassigned familiarised themselves with those matters. The court agrees with the plaintiffs’ argument. The defendants’ legal practitioner must have consulted with the defendants and their witnesses prior to drawing their initial plea, and that should have armed the defendants with sufficient instructions to bring the condonation application. The condonation application was only brought after the fourth court order, five months after the consequential amended plea was due. The degree of the delay is alarming and not sufficiently explained.


[40] The founding affidavit was deposed to by the defendants’ legal practitioner, and a confirmatory affidavit by Ms Naimbale was also filed. Ms Naimbale says when the first defendant is sued, she is responsible for reaching out to specific health facilities and medical personnel against whom the action is instituted to obtain information and documentation on the matter, and once the information is received, she forwards it with instructions to the Government Attorney. She says during ‘the period concerned’, she was unable to assist the legal practitioner to enable her to consult with the witnesses because they were struggling to locate the witnesses, Mr Siseho retired, and some of his matters were reassigned to her during December 2023 / January 2024. She says she authorised the defendants’ legal practitioner to depose to the founding affidavit and to bring the application on behalf of the defendants. The plaintiffs point out that the confirmatory affidavit bears a case number of another matter and concerns parties not before the court. In reply, the defendants say that the wrong confirmatory affidavit was filed and the correct one was attached to the replying affidavit, the contents of which are the same as the incorrect one. The correct confirmatory affidavit is not before the court and is disregarded. That affidavit does, in any event, not assist the defendants.


[41] The defendants argue that their legal practitioners had difficulties obtaining instructions due to the defendants’ unavailability. That argument is not supported by the facts set out in the founding affidavit. The first defendant is the Minister. The second and third defendants are the doctors. Ms Naimbale’s confirmatory affidavit, which is disregarded, refers to witnesses who could not be located, not the defendants themselves. Ms Naimbale’s statement is, in any event, vague and unhelpful as the names of the witnesses are not mentioned, and no details are provided on the steps taken to contact the defendants or the witnesses.


[42] No explanation is provided for the defendants’ failure to file the consequential amended plea on 10 October 2023, even though they had known since 26 September 2023 that it had to be filed on 10 October 2023. The date of 10 October 2023 was not imposed on the defendants. In a joint status report dated 26 September 2023, the parties, including the defendants, proposed that the consequential amended plea be filed on or before 6 October 2023. No explanation is provided for the defendants’ failure to file the condonation application by 24 November 2023 when initially ordered to do so on 7 November 2023 and even before that when the default occurred. The defendants’ remaining explanation for their failure to file their consequential amended plea and condonation application is unreasonable, insufficient and lacks particularity. The application before the court was not made promptly. The delay is substantial. Notwithstanding the court orders, the defendants and their legal practitioner disregarded various court orders and decided to deal with the matter in their own way at their own leisure, indicating an intention to disobey various court orders. The failure to comply with various court orders was caused by the defendants as well as their legal practitioner.


Prospects of success


[43] The court now considers the defendants’ prospects of success.


[44] The defendants’ legal practitioner says the defendants have great prospects of success as Ms Pollmann was attended to with the utmost care and diligence by the defendants’ medical team since her admission to and discharge from the hospital. She further says, as per the documents initially discovered by the defendants prior to the amended particulars of claim, without identifying any particular document, the defendants will prove Ms Pollmann’s medical condition was monitored and attended to throughout her admission, and the condition was not critical upon admission. She also says without having to repeat the full defence, for convenience the consequential amended plea is filed simultaneously with the condonation application ‘merely for the purpose of highlighting’ that the defendants’ have great prospects of success.


[45] In Vaatz: In re Schweiger v Gamikaub (Pty) Ltd,10 the court said an applicant ‘must show cause, in the sense of satisfying the Court, that there is a prospect of success’ and referred to Darries v Sheriff, Magistrate's Court, Wynberg and Another11, where the following was said about the prospects of success requirement:


‘. . . When application is made for condonation it is advisable that the petition should set forth briefly and succinctly such essential information as may enable the Court to assess the appellant's prospects of success. See Meintjies's case supra at 265C-E; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131E-F; Moraliswani v Mamili 1989 (4) SA 1 (A) at 10E.’


[46] While r 56(2) should not be interpreted to mean that an applicant must ‘prove’ that it has a reasonable prospect of success or provide evidence of its prospect of success, the court has the discretion to condone the non-compliance to be exercised judicially,12 and it is advisable that such essential information as would enable the court to assess prospects of success be set forth. If an applicant provides too little information for the court to assess its prospects of success, the court may conclude that it did not show a reasonable prospect of success.


[47] The first issue is that the defendants’ legal practitioner does not have personal knowledge about the defendants’ prospects of success, and there are no confirmatory affidavits by the defendants themselves.


[48] The second issue is that the defendants’ legal practitioner's statements are insufficient to show, to the court’s satisfaction, that the defendants have a reasonable prospect of success.


[49] The only act of negligence which the defendants’ legal practitioner touch upon is that Ms Pollmann was attended to with the utmost care and diligence. The defendants’ legal practitioner does not address the plaintiffs’ claim that the defendants’, alternatively, the first defendants’ employees, were negligent in that the caesarean section was not performed within two hours or as required from the time of administering the Cytotec and that it was performed too late, that they failed to take reasonable steps to ensure the unborn baby would not sustain complications, bodily damages and injuries, that they failed to act with reasonable professional skill, and that they failed to resuscitate the baby upon birth. The fact that Ms Pollmann’s medical condition was monitored and attended to throughout her admission, and the condition was not critical upon admission, does not satisfy the court that the defendants have a reasonable prospect of success. The defendants’ legal practitioner also omitted to deal with the plaintiff’s claim that the baby was not continuously monitored.


[50] The reference to the defendants’ consequential amended plea, which was not even attached to the founding affidavit or confirmed by the defendants, does not assist the defendants. In Jason v Namibia Institute for Mining and Technology,13 the court referred to Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others14 wherein it was stated that (footnotes omitted):


‘ . . . It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest – the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts. . . . In motion proceedings, the affidavits constitute both the pleadings and the evidence: Transnet Ltd v Rubenstein, and the issues and averments in support of the parties' cases should appear clearly therefrom. A party cannot be expected to trawl through lengthy annexures to the opponent's affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush cannot be permitted.’


[51] In Standard Bank Namibia Ltd and Others v Maletzky and Others,15 the Supreme Court dealt with a founding affidavit in motion proceedings and stated that (footnotes omitted):


43. The founding affidavit must thus contain all the essential factual averments upon which the litigant's cause of action is based in sufficiently clear terms that the respondent may know the case that must be met. Although a litigant may attach annexures to the founding affidavit, it is not sufficient for a litigant to attach an annexure without identifying the facts contained in the annexure upon which the litigant relies.


[52] The court finds the defendants failed to show that they have a reasonable prospect of success.


Conclusion


[53] In conclusion, it is ordered:


1. The application under INT-HC-UPLIFBAR-2024/00168 is dismissed with costs limited to High Court r 32(11).


2. The matter under INT-HC-UPLIFBAR-2024/00168 is finalised and removed from the roll.


3. The defendants shall pay the plaintiffs' costs for the appearances of 7 November 2023, 13 December 2023, 14 February 2024 and 13 March 2024 jointly and severally, the one paying the other to be absolved.


4. The defendants' pleas dated 23 May 2023 and 28 March 2024 (insofar as those pleas are before the court) and the defendants’ defence are struck out with costs.


5. The matter under HC-MD-CIV-ACT-DEL-2023/01069 shall proceed unopposed.


6. The matter under HC-MD-CIV-ACT-DEL-2023/01069 is postponed to 5 June 2024 at 08h30 for a status hearing.


7. The plaintiffs shall file a status report on or before 30 May 2024 on the further conduct of the matter.



__________________

B de Jager

Acting Judge



APPEARANCES


PLAINTIFFS:

W Chaka

Of Tjitja Harases Legal Practitioners, Windhoek


DEFENDANTS:

H Hamunyela

Instructed by the Government Attorney, Windhoek














1 High Court r 17(2).

2 QKR Namibia Navachab Gold Mine (Pty) Ltd v Kwala (HC-MD-LAB-MOT-GEN-2022/00109) [2022] NALCMD 43 (4 August 2022) para 25 – 32.

3 High Court r 54(3).

4 High Court r 2.

5 High Court r 56.

6 Solsquare Energy (Pty) Ltd v Lühl 2022 (3) NR 899 (SC) para 62 – 68.

7 Balzar v Vries 2015(2) NR 547 (SC).

8 Beukes and Another v South West Africa Building Society (SWABOU) and Others NASC SA 10/2006 (5 November 2010).

9 Arangies t/a Auto Tech v Quick Build 2014 (1) NR 187 (SC).

10 Vaatz: In re Schweiger v Gamikaub (Pty) Ltd 2006 (1) NR 161 (HC) para 10.

11 Darries v Sheriff, Magistrate's Court, Wynberg and Another 1998 (3) SA 34 (SCA) 40G-41D.

12 TransNamib Holdings Limited v Aris Stone Products CC (HC-MD-CIV-ACT-CON-2023/01976) [2024] NAHCMD 65 (21 February 2024) para 54.

13 Jason v Namibia Institute for Mining and Technology (HC-MD-LAB-MOT-GEN-2021/00115) [2022] NALCMD 66 (28 October 2022) para 20.

14 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA) para 43.

15 Standard Bank Namibia Ltd and Others v Maletzky and Others 2015 (3) NR 753 (SC) para 43.

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