Phanto Props (Pty) Ltd v La Concorde Holdings (Pty) Ltd and Others (7212/2021) [2021] ZAWCHC 249 (10 November 2021)

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[2021] ZAWCHC 249
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Phanto Props (Pty) Ltd v La Concorde Holdings (Pty) Ltd and Others (7212/2021) [2021] ZAWCHC 249 (10 November 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(
WESTERN CAPE
DIVISION, CAPE TOWN
)
CASE
NO
:  7212/2021
DATE
:
2021.11.10
In the matter between
PHANTO
PROPS (PTY)
LTD
Applicant
and
LA
CONCORDE HOLDINGS (PTY)
LTD
First Respondent
VAN
DER SPUY (WESTERN CAPE INC)
t/a
VAN DER SPUY &
PARTNERS
Second Respondent
SAREL
VAN DER BERG

Third Respondent
Ex tempore JUDGMENT
(Leave to amend)
BINNS-WARD
,
J:   In this matter the plaintiff in the action has applied
to amend its particulars of claim in the respects set out
in its Rule
28(1) notice delivered on 21 June 2021.
The notice in question provides
for a number of proposed amendments; two of which, those set out in
paragraphs 2 and 3 of the notice,
gave rise to an objection by the
first defendant, which in turn led to the current application for
leave to amend the particulars
of claim consistently with what was
adumbrated in those paragraphs.
By the time the matter came to
hearing, however, the only issue remaining in contention was the
first defendant’s objection to the
proposed amendment to paragraph
27 of the particulars of claim.
Paragraph 27 of the particulars
of claim was concerned with the allegation regarding the
quantification of the damages claimed by
the plaintiff in respect of
the defendant’s alleged breach of contract.  As currently
pleaded, it provides that “The reasonable
market value of the water
rights is R300 000 per hectare therefore R4 740 000”,
being the quantum of damages claimed
for the first defendant’s
failure to deliver land with stipulated water rights.
The plaintiff proposed to amend
that paragraph by adding the sentence:
“
The market
value of the water rights per hectare is calculated by subtracting
the average price per hectare of arable agricultural
land without any
water rights from arable land with water rights in the Robertson
area.”
In my view, the issue, in
considering whether the amendment should be allowed, distils into
whether the pleading, amended as proposed,
would be compliant with
Rule 18(10) of the Uniform Rules of Court which provides:
“
A plaintiff
suing for damages shall set them out in such manner as will enable
the defendant reasonably to assess the quantum thereof”.
The subrule continues, in respect
of damages claimed in respect of personal injury, by saying:
“
Provided
that a plaintiff suing for damages for personal injury shall specify
his date of birth, the nature and extent of the injuries
and the
nature, effect and duration of the disability alleged to give rise to
such damages and shall as far as practicable state
separately what
amount, if any, is claimed for:
(a)
medical costs and hospital and other
similar expenses and how these costs and expenses are made up;
(b)
pain and suffering, stating whether
temporary or permanent, and which injuries caused it;
(c)
disability in respect of:
(1)
the earning of income (stating the earnings
lost to date and how the amount is made up and the estimated future
loss and the nature
of the work the plaintiff will in future be able
to do);
(2)
the enjoyment of amenities of life (giving
particulars) and stating whether the disability concerned is
temporary or permanent); and
(d)
disfigurement with a full description
thereof and stating whether it is temporary or permanent.”
Rule 18(10) in its current form
was part of the overhaul of Rule 18 introduced by way of
amendments to the rules made as long
ago as 1987.  Historical
investigation will show that prior to those amendments any deficiency
in particularity in a declaration
or particulars of claim could be
addressed by the defendant requesting further particulars for the
purposes of pleading.  Those
historical provisions were taken
away and replaced by rule 18(10) in respect of damages claims. In my
view, it clearly follows therefrom
that a pleading in a damages claim
now has to contain far greater particularity in respect of the
calculation or making up of that
claim than had previously been the
case.
Subrule 18(10) is additional to,
and distinguishable from, Rule 18(4).  Rule 18(4), which as
far as memory serves, is still
in the form that it was prior to the
1987 amendments, requires that every pleading shall contain a clear
and concise statement of
the material facts upon which the pleader
relies for his claim, defence or answer to any pleading, as the case
may be, with sufficient
particularity to enable the opposite party to
reply thereto.
Rule 18(4) only requires that a
pleading should set out the facts necessary to make out a cause of
action; in other words, to use
the technical term, “the
facta
probanda
”.  Rule 18(4) does not require a pleader to set
out the
facta probantia
.
Some of the material in 18(10) in
respect of claims for damages for personal injury certainly amount to
particularity of the
facta probantia
- something more than the
facta probanda
– and, in my view, the particularity required
in respect of damages for personal injury in terms of the subrule
gives some indication
of the rulemaker’s intention in determining
on the rule in the first place, which is expressed in the opening
phrase of the sub
rule requiring a plaintiff suing for damages to set
them out in such manner as will enable the defendant reasonably to
assess the
quantum thereof.
The rulemaker obviously could not
be expected to conceive of every possible type of damages claim and
to provide expressly therefor.
It no doubt provided expressly
what was required in respect of allegations in support of a claim for
damages for personal injury
because that is a commonplace example of
a damages claim.  But in laying out what it did in respect of
the requirements for
pleading a damages claim for personal injury it
may, in my view, be inferred that it was also giving an indication of
the sort of
particularity that, by analogy, might be expected of a
pleader in any form of damages claim.
Mr Van Staden SC, in arguing in
support of the application for amendment, emphasised the difference
between a pleading which fails
to comply with the particularity
required in terms of rule 18 and an excipiable pleading, and sought
on that basis to distinguish
the current case from the cases in
regard to applications for amendments to pleadings which held that
such application should not
be allowed when the result would be an
excipiable pleading.
I accept, on the basis of the
authorities to which he referred, the reasoning whereof I have no
difficulty with, that there is a distinction
between an excipiable
pleading and a pleading non-compliant with rule 18.  Whether the
distinction should form a basis to refuse
applications for amendment
of pleadings that would result in an excipiable pleading and allow an
amendment resulting in a pleading
which would be non-compliant with
rule 18 is, however, a concept with which I have great difficulty.
By allowing an amended pleading
non-compliant with rule 18, a court would necessarily thereby be
permitting a pleading to be brought
into being that would be deemed,
in terms of rule 18(12), to be an irregular step.  It seems to
me undesirable for a court to
make itself party to any such process
or procedure.
Mr Van Staden also emphasised
that one of the weighty considerations to be considered by a court in
applications for the amendment
of pleadings is whether allowing the
amendment would result in any prejudice to the opposing party.  He
submitted that the first
defendant in this case had failed to
establish the existence of any such prejudice.  I understood him
thereby to say that there
would be nothing thereafter inhibiting the
first defendant from proceeding against the pleading in terms of rule
30.
That submission goes against the
observation of Mr Justice Cloete in the matter of
Sasol Industries
(Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a
LH Marthinusen
1992(4) SA 466 (W) at 470H, where the learned
judge said:
“
In my view
if a pleading does not comply with the sub rules of rule 18 requiring
specified particulars to be set out, prejudice has
prima
facie
been established.  Cases may
well arise where a party would not be prejudiced by the failure to
comply with these sub rules
or where a pleader would be excused from
providing the prescribed particularity because he is unable to do so
but in such cases the
onus would in my view be on him to establish
the facts excusing his non-compliance.  The law reports abound
with cases which
lay down this principle in respect of other rules of
court and the same principle applies in my view in relation to
non-compliance
with rule 18.”
I find myself in respectful
agreement with those
dicta
.
In my view, if the proposed
amendment is non-compliant with Rule 18(10), the plaintiff in this
case has not shown that it would not
be prejudicial to the other
party.  On the contrary, the position would appear to be that
allowing the amendment would militate
towards further unnecessary
litigation in this matter. That could be avoided if the proposed
amendment were improved to bring it
into compliance with rule 18(10).
If the application for amendment were refused, it would be
within the plaintiff’s power
to take such ameliorating steps.
I am of the view that the
proposed amended pleading does not cure the apparent current
non-compliance with rule 18 of the allegation
made in paragraph 27 of
the particulars of claim.
The reference to market value in
paragraph 27 of the proposed amended particulars of claim does not
provide sufficient particularity
to enable the defendant reasonably
to assess its cogency.  One is not told in the proposed
amendment what the market value per
hectare with water rights used by
the plaintiff for the purposes of quantifying its damages is, or what
the market value price per
hectare of arable land without any water
rights from arable land is.  One is also not told as of what
date or period the market
value calculations were done.
In the result what is proposed to
be pleaded is, to say the least, opaque.  That is something
which is contraindicated by the
requirements and evident object of
rule 18(10).
I consequently intend to uphold
the first defendant’s objection to the proposed amendment to
paragraph 27 of the particulars of
claim.
The application will therefore be
allowed in terms of paragraph 2 of the notice of motion save in
respect of paragraph 3 of the notice
of intention to amend under
rule 28(1) delivered on 21 June 2021.
Relief will also be granted,
insofar as necessary, in terms of paragraph 1 of the notice of
motion.
The first defendant initially
objected to the proposed amendment of paragraph 23 of the particulars
of claim but, as mentioned earlier,
did not persist with that.
I heard Mr De Jager’s submissions in respect of the first
defendant’s position in
respect of its initial objection to
paragraph 23 and understand from that that the fact the objection is
not persisted with at this
stage does not mean or imply that it will
not in some form be pursued later in the proceedings.  I am only
concerned at this
stage with its role in the current proceedings.
It did give rise and take up some of the paper and energy that has
been involved
in the current application.
In the circumstances I do not
propose to allow the first defendant its full costs of opposition.
I think it would be appropriate
in the circumstances to order that
the plaintiff/ applicant pay two-thirds of the first
defendant/respondent’s costs in the application
for leave to amend
the pleadings.
In the result an order will be
issued in the following form:
1.
An order is granted in terms of paragraphs1 and 2 of the notice of
motion, save that in respect of
paragraph 2, leave is refused to
amend the particulars of claim in terms of paragraph 3 of the
plaintiff’s rule 28(1) notice dated
21 June 2021.
2.
The plaintiff/ applicant is ordered to pay two-thirds of the first
defendant/ respondent’s costs
in the application for leave to
amend.
BINNS-WARD, J
JUDGE OF THE HIGH COURT