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Auxilia Katongomara, Chronicle Reporter
A BULAWAYO magistrate has set aside a default judgment against a city doctor accused of causing the death of a new born baby through negligence saying it was erroneously granted.
Dr Arnold Nyamande from Marondera Poly Clinic in Mzilikazi suburb had been ordered to pay the father of the deceased baby $8 000 or risk having property attached at his surgery following a default judgment issued in January.
The late baby’s father Mr Champion Kudiwa dragged Dr Nyamande to court demanding $8 000 for costs suffered in medical expenses, funeral and traditional rites.
However, Bulawayo magistrate Mr Tinashe Tashaya yesterday set aside the default judgment arguing that the doctor had a bona fide defence and was not in wilful default when the judgment was made.
In his ruling, Mr Tashaya said Dr Nyamande had tried to enter an Appearance to Defend but the clerk of court declined to accept his papers before the judgment was made.
He said Dr Nyamande has a bona fide defence because he was convicted of unethical conduct and not negligence and that the default judgment was erroneously granted.
“The summons deposed by the applicant are defective in that they do not disclose the cause of action. The applicant is claiming negligence but not pleading negligence in his summons.
“If negligence can be proved then the doctor has a prima facie defence.
“The default judgment was erroneously granted without an affidavit of evidence. The magistrate erred because the applicant did not file an affidavit of evidence to prove the damages. Whenever one is claiming for damages even if respondent is in default, they have to quantify or prove damages being claimed,” said Mr Tashaya.
The judgment was set aside and Dr Nyamande ordered to file his defence within seven days.
Dr Nyamande is serving a 12-month suspension and undergoing retraining at a city central hospital, a sentence delivered by the Medical and Dental Practitioners Council of Zimbabwe after it found him guilty of negligence.
In January, a Bulawayo magistrate Ms Nyaradzo Ringisai, passed a default judgment against Dr Nyamande following an $8 000 lawsuit filed by Mr Kudiwa.
Dr Nyamande allegedly referred the new born baby and its mother in an unregistered taxi to Mpilo Central Hospital from his surgery due to severe complications.
When the incident occurred last year, his surgery did not have enough oxygen. Hospital records show that the baby was admitted to the neo-natal intensive unit at Mpilo Central Hospital due to severe asphyxia and later died.
In his application for rescission of default judgment, Dr Nyamande, through his lawyers Calderwood, Bryce Hendrie and Partners, said Mr Kudiwa’s application was erroneously granted because his failure to appear in court was not wilful.
He said he misplaced the summons hence delays in responding to the matter.
Dr Nyamande said default judgments do not bring finality to litigation as the judgment will only have been granted on a technicality and not on the merits of the matter. — @AuxiliaK
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