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

This was a damages claim founded on medical negligence. The merits had been decided in the plaintiff's favour on 21 May 2019, and the matter was enrolled for hearing on quantum on 16 November 2021. The matter had been certified as trial ready at a trial roll call hearing on 12 November 2021 before Goosen J, with both parties signing a trial readiness checklist on 9 November 2021. However, the defendant filed an amended plea on 12 November 2021 (after the roll call hearing) introducing the "public healthcare defence" seeking development of the common law to allow periodic payment of damages and/or provision of care-in-kind. The State Attorney subsequently approached Goosen J expressing concerns that the matter was not trial ready because the defendant wished to appoint experts to counter the plaintiff's experts. When the matter came before the trial court on 16 November 2021, the defendant sought removal from the trial roll arguing: (1) the matter was improperly set down; (2) pleadings had not closed due to the late amendment; (3) the defendant had requested a postponement; and (4) the plaintiff's expert notices were non-compliant with Rule 36(9). The plaintiff contended the matter was properly enrolled and she was ready to proceed.

• Whether the matter was properly enrolled for trial under the amended Rule 37A case management procedures
• Whether the late amendment to the defendant's plea reopened pleadings and affected trial readiness
• Whether the parties complied with their mutual obligations under case management to ensure trial readiness
• The proper interpretation and application of Rule 37A regarding judicial case management
• Whether expert notices and summaries complied with Rule 36(9)
• The apportionment of wasted costs when a matter is removed from the trial roll

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

Under the amended Rule 37A and case management regime, both parties bear primary and mutual responsibility to prepare properly, comply with court rules, and act professionally in expediting matters toward trial. This mutual obligation requires meaningful engagement between parties regarding trial readiness, not merely perfunctory completion of forms or technical point-taking. The filing of a late amendment after traditional close of pleadings and after a trial date has been allocated does not automatically alter the procedural stage of "close of pleadings" for case management purposes. When a party seeks an indulgence by way of a late amendment that affects trial readiness, that party bears responsibility for consequential delays and wasted costs. Courts will apportion wasted costs to reflect each party's proportionate contribution to a matter's removal from the trial roll, giving effect to the mutual obligations imposed by case management rules.

The court observed that it is unfortunate that parties often do not apply their minds to the true objectives of case management but rather simply go through the motions at trial roll call hearings. The court noted that the two key objectives of case management are to get cases through the system as expeditiously as possible and to minimize the costs impact to litigants. The court commented that while it is a constitutional imperative for the State to consider and pursue alternative means of making reparation in cases of medical negligence (including the public healthcare defence), this does not exempt State parties from ordinary rules of practice or mutual case management obligations. The court suggested that ideally a substantive application should have been brought for removal or postponement, but adopted a practical approach recognizing that an overly formal approach would retard the objectives of case management. The court expressed the view that if parties had been speaking to each other as they ought, the plaintiff may well have been inclined to allow the defendant the benefit of testing the public healthcare defence, particularly if accompanied by an appropriate tender of wasted costs.

This case is significant for its comprehensive analysis of the obligations imposed on parties by the amended Rule 37A concerning judicial case management. It establishes that case management requires mutual responsibility and professional engagement from both parties, not merely perfunctory compliance with forms and checklists. The judgment clarifies that parties cannot adopt a supine or technical approach, but must actively and professionally cooperate to ensure trials proceed when scheduled. It provides guidance on how late amendments interact with case management timelines and trial readiness certification. The case demonstrates the court's willingness to apportion wasted costs between parties based on their respective contributions to trial unreadiness, reflecting the mutual obligations imposed by case management. It also addresses the procedural requirements when the State seeks to rely on the "public healthcare defence" requiring development of the common law regarding alternative forms of compensation in medical negligence cases.