Asanda Beauty Tyibilika v Member of the Executive Council for the Department of Health, Eastern Cape Province

The plaintiff instituted a medical negligence damages claim against the MEC for Health, Eastern Cape. The merits were decided in the plaintiff’s favour in May 2019, and the matter was later enrolled for trial on the issue of quantum on 16 November 2021. Shortly before trial, the defendant delivered a late amendment to her plea introducing the ‘public healthcare defence’, seeking development of the common law to allow payment of damages by instalments or provision of services in kind. At trial roll call the matter was certified as trial ready, but on the trial date the defendant contended that the matter was not trial ready due to the late amendment, allegedly open pleadings, and outstanding expert evidence. The trial court removed the matter from the roll and reserved the question of wasted costs.

The matter was removed from the trial roll. The defendant was ordered to pay 80% of the wasted costs occasioned by the removal, including the costs of second counsel.

The judgment underscores the transformative effect of Rule 37A and judicial case management in South African civil procedure. It emphasises mutual trial readiness, discourages technical point-taking, and affirms that late amendments—particularly by the State in medical negligence matters—do not absolve parties from their case management duties or from liability for wasted costs.