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[2015] ZAGPJHC 194
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Dlakana v Passenger Rail Agency of South Africa (PRASA) and Another (4532/2010) [2015] ZAGPJHC 194 (18 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NUMBER: 4532/2010
In the
matter between:
SIMBONILE
DLAKANA
PLAINTIFF / APPLICANT
AND
PASSENGER
RAIL AGENCY OF SOUTH AFRICA (PRASA)
FORMERLY
CITED AS TRANSNET LIMITED t/a METRORAIL
DEFENDANT / RESPONDENT
REASONS
FOR REFUSAL TO RULE ON INTERMEDIATE ISSUE AND FOR REFERRAL TO
PRE-TRIAL CONFERENCING IN TERMS OF RULE 37(8)(a) OF THE UNIFORM
RULES
REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE SEVERAL PROVINCIAL
AND LOCAL DIVISIONS OF THE SUPREME COURT OF SOUTH AFRICA
LAMPRECHT,
AJ
Introduction
[1]
Before a so-called ‘amendment’ was effected in terms of
Rule 28, combined summons was issued against Transnet Ltd
trading as
Metrorail for personal injury as a result of an incident that
allegedly took place on 13 February 2007 at the Dunswart
Station
where plaintiff boarded the train for Angelo, Johannesburg. It is
further alleged that three unidentified men followed
plaintiff onto
the train from the platform, that they subsequently robbed him of his
wallet and, when plaintiff attempted to retrieve
his stolen wallet,
one of the unidentified men pushed him off the moving train of which
the door had not closed even though in
motion and, as a result,
plaintiff fell off the train onto the tracks and got injured.
[2]
Original defendant pleaded to these allegations,
inter alia
by
stating in paragraph 2 of the plea:
“
2.1
Defendant admits that at the time of the incident Metrorail a
division of Transnet Limited operated
the Passenger Rail services at
Dunswart Station.
2.2
As from December 2008 the Passenger Rail Agency of South Africa, a
public company with limited
liability assumed responsibility for the
aforementioned rail services.”
The
rest of the pleadings are not important at this stage. Suffice it to
say that liability of the defendant on the basis of duty
of care as
well as the factual basis for liability were denied and pertinently
placed in issue.
[3]
After roll-call on 17 August 2015, my Registrar informed me that the
matter has been allocated to me for trial on the merits
(not
quantum), which trial has been set down for four days. Subsequently,
however, when Counsel for the parties came to introduce
themselves in
Chambers, I was informed that the matter is not a ‘cut-and-dried’
trial on the merits as it seems, but
that an amendment had been
effected to the summons only last week, in that that defendant had
been substituted by plaintiff for
the Passenger Rail Agency of South
Africa (PRASA); with a consequential amendment of plea by the
defendant to a special plea of
prescription with an extended plea on
the merits should I not uphold the special plea. Counsel for
plaintiff further indicated
to me that he now has misgivings about
the effected amendment and that I will be required to rule whether
the trial should proceed
on the papers as they are, including the
amendment, which plaintiff was now prepared to abandon.
[4]
In court, Mr De Klerk SC, for the plaintiff, addressed me with
reference to case law applicable to the withdrawal of admissions
in
terms of Rule 28 amendment procedure and argued that, after proper
consultation following the amended plea, he has now advised
plaintiff’s instructing attorneys that the effected amendment
was not in order; and, that they have therefore decided to
instruct
him to abandon the amendment and continue on the papers that existed
pre-amendment. He argued that they had simply made
a mistake with the
amendment because they have now established that PRASA and
Transnet co-exist as two separate legal personae.
Mr De Klerk further
indicated that the prejudice that defendant might suffer in the
circumstances can be remedied by costs, which
they offer to the
defendant, and, if necessary, a postponement of the trial. Mr Smit,
for defendant argued that I do not have the
power to grant plaintiff
permission to abandon the amendment and that I should dismiss the
‘application to abandon the amendment’
with costs. Even
though the legal team for defendant remained the same throughout, so
he argued, a completely new defendant is
now on record and if I allow
the plaintiff to continue on the original papers, the defendant who
had been substituted will be prejudiced
because it has no knowledge
that it is now again involved as a defendant. Therefore, so he
argued, the matter cannot simply be
remedied by the award of costs
and a postponement of the matter. Both Counsel also addressed
me on the history of the matter
pertaining to amendments that were
effected and the coming into being of the current defendant on the
papers, PRASA.
The
history
[5]
Subsequent to having been informed in defendant’s initial plea
of the fact that PRASA had taken over responsibility from
‘Metrorail
a division of Transnet Ltd’ for the passenger rail services at
Dunswart station during December 2008, plaintiff
decided to opt for
the amendment by, not adding, but substituting the defendant for a
totally new defendant. No attempt was made
during pre-trial
conferences to ascertain whether PRASA took over from Metrorail with
all duties and responsibilities including
liability
ex
tunc
[1]
or whether same only now exists for PRASA
ex
nunc
.
[2]
Such an enquiry could have had the effect that the belated attempt at
amending the pleadings barely a week before trial could have
been
rendered superfluous or attempted in another fashion.
[6]
Probably due to the original paragraph 2.2 of defendant’s plea
quoted above,
[3]
during a pre-trial conference eventually held on 22 June 2015 (in
circumstances where Counsel for the defendant had been ‘absent
and excused’ and only the instructing attorneys were present)
plaintiff posed the following question to defendant:
“
1.4
Does the Defendant admit the Defendant’s citation.”
[7]
The response recorded by the plaintiff in terms of Rule 37(6), (7)
[4]
on this question differs from the response recorded by the
defendant. According to plaintiff, the answer was recorded
thus:
“
Yes,
admitted
The
Plaintiff is considering to do a Substitution in terms of Rule 15.
Should Plaintiff do such a substitution it undertakes to
substitute
the Defendant, for PRASA-Passenger Rail Agency of South Africa.”
Defendant
however avers that the answer was recorded as follows:
“
The
Defendant is not prepared to make this admission.
The
Plaintiff is considering to do a Substitution in terms of Rule 15.
Should the Plaintiff do such a substitution it undertakes
to
substitute the Defendant, for PRASA- Passenger Rail Agency of South
Africa. The Defendant will consider the plaintiff’s
substitution upon receipt.”
[8]
What followed reminds me of an Afrikaans adage often used by the
erstwhile Principal of Justice College, Dr NJ Van der Merwe:
“
As
jou uitgangspunt verkeerd is, gaan die waarheid altyd kom wraak
neem.”
[9]
In an e-mail to Counsel,
[5]
attorney for the plaintiff dated 11 August 2015 at 11h25 AM
[6]
remarked:
“
Here
is the amended Pre trial Minute.
Please
see what they have now done at the Locus standi for the Defendant.
I
think we should draw an amendment for the citation of the Defendant
to read PRASA. If you agree, please draw one for us.”
Counsel’s
response which was e-mailed right back at 11h46AM is
“
DONE!
YOUR
COMMENTS, IF ANY. PLEASE REPLY.”
[10]
Subsequent to this communiqué, plaintiff’s attorney
e-mailed defendant’s
[7]
attorney in the following terms at 12h02:
“
Attached
is the amendment for the name and citation of the Defendant.
Please
indicate if there will be any objection thereto at the trial.”
The
response at 14h04 PM is:
“
Please
effect the amendment and serve the amended pages today.”
This
was followed by a note issued by plaintiff’s attorney:
“
Kindly
find Amended Particulars of Claim and Amended Summons.”
[11]
The word ‘amendment’ that was repetitively used by the
parties in their e-mailed correspondence appears to have
caused all
the confusion in this matter. According to the amended pages
ostensibly
[8]
delivered by plaintiff to defendant in pursuance of Rule 28(7), the
original Combined Summons is effectively amended in that, the
erstwhile defendant has now been substituted for “
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
(hereinafter
referred to as ‘PRASA’) formerly known as
TRANSNET,
t/a METRORAIL
, a company
with limited liability, registered in terms of the Companies Act
...”
In
paragraph 2 of the amended Particulars of Claim, the ‘new’
citation is replicated where it is alleged:
“
The
Defendant is the PASSENGER RAIL AGENCY OF SOUTH AFRICA (hereinafter
referred to as ‘PRASA’) formerly known as TRANSNET,
t/a
METRORAIL, a company with limited liability, registered in terms of
the Companies Act ...”
Some
further amendments to the particulars of claim, which are not
relevant for the current purposes, have also been included in
the
amended pages.
[12]
The special plea subsequently (but eagerly) filed by defendant is as
follows:
“
SPECIAL
PLEA OF PRESCRIPTION
a.
The Plaintiff claims for a
personal injury suffered by him on 13 February 2007.
b.
The Plaintiff by way of an
amendment amended the citation of the Defendant to replace TRANSNET
with the Passenger Rail Agency of
South Africa as the Defendant.
c.
In the circumstances action was
instituted against the Passenger Rail Agency of South Africa on 11
August 2015.
d.
In terms of section 11 of the
Prescription Act a claim prescribes 3 years after the debt became
due.
e.
The debt became due on 13
February 2007.
f.
In the premises the claim
prescribed on the 12 February 2010.”
After
that, the defendant pleads
[9]
as follows on the amended paragraph 2 of the particulars of claim:
“
a.
The Defendant denies that the Passenger Rail Agency was
formerly known as Transnet.
b.
Transnet Ltd was established in terms of section 2 of the Legal
Succession to
the South African Transport Services Act No 9 of 1989
(‘the Act’) and came into existence on 23 March 1990.
c.
The South African Rail Commuter Corporation Limited (‘SARCC’)
was
established in terms of section 22 of the Act and came into
existence on the 23 March 1990.
d.
The Passenger Rail Agency of South Africa was established in terms of
section
22 of the Act, as amended, in 2008.
e.
Transnet Ltd also known as Transnet SOC Ltd, registration number
90/00900/06,
remains in existence and continues to trade.
f.
In terms of section 25 of the Act ownership in and to the rail
commuter
assets of the South African Transport Services was
transferred to SARCC in March 1990 and in 2008, pursuant to the
amendment, to
the Passenger Rail Agency of South Africa (the effect
whereof was retrospective).
g.
In terms of section 23 of the Act the object of the SARCC was the
provision of
rail commuter services to the public and upon the
amendment to the Act, such services were vested in the Passenger Rail
Agency
of South Africa.
h.
In terms of section 25A of the Act the transfer the of the long
distance passenger
railway and long distance bus service was
transferred the Passenger Rail Agency of South Africa with effect
from 31 March 2009.
i.
Save for the aforegoing the contents of the paragraph under reply are
denied.”
The
law pertaining to substitution and amendment
[13]
What is apparent from the above is that, despite plaintiff’s
consideration during the pre-trial conference to ‘substitute
the defendant’ in terms of Rule 15 and defendant’s
recognition of this possibility, both parties proceeded from the
wrong premise by not using the procedure provided for in Rule 15(1),
(2) or the common law to add or to substitute a party to the
action;
and, in terms of Rule 15(4) or the common law, to apply for setting
aside or variation of the substitution if required.
Both parties
ostensibly based their further process and arguments on the basis
that the substitution of the defendant had to be
done, and, was
effected in terms of Rule 28 as an amendment to pleadings and
documents. It appears as if both the legal teams for
the plaintiff
and the defendant during pre-trail process of playing cat-and-mouse
and the typically lawyerly conduct of horse-trading
became so
engrossed in the formula provided for a ‘normal’
amendment in Rule 28, that they could no longer see the
wood for the
trees. The substitution of defendant for PRASA had to be done in
terms of Rule 15 or the common law, not in terms
of Rule 28, except
in very special circumstances.
[14]
As far as the amendment of pleadings and documents in terms of Rule
28 is concerned, one must always bear in mind the test
laid down by
the Appellate Division of the Supreme Court, as it then was, in
Sentrachem Ltd v
Prinsloo
,
[10]
namely:
“
Die
eintlike toets is om te bepaal of die eiser nog steeds dieselfde, of
wesenlik dieselfde skuld probeer afdwing. Die skuld of
vorderingsreg
moet minstens uit die oorspronklike dagvaarding kenbaar wees, sodat
‘n daaropvolgende wysiging eintlik sou
neerkom op die opklaring
van ‘n gebrekkige of onvolkome pleitstuk waarin die
vorderingsreg, waarop daar deurgaans gesteun
is, uiteengesit word ...
So ‘n wysiging sal
uiteraard nie
‘n
ander vorderingsreg naas die oorspronklike kan inbring nie, of ‘n
vorderingsreg wat in die oorspronklike dagvaarding
prematuur of
voorbarig was [kan] red nie, of ... ‘
n
nuwe party tot die geding [kan] voeg nie
.”
[11]
[15]
Thus, while the amendment procedure provided for in Rule 28 can be
‘effected’ in terms of Rule 28(7) when it is
not objected
to by the opposition (or, even when challenged by the opposition to
do so immediately as has happened in this case
according to the
defendant’s e-mail to plaintiff quoted above), can be used to
amend documents or pleadings, even in broad
terms, the procedure of
Rule 28 is not available to institute a totally new cause of action
as alleged by the defendant, which
may or may not have prescribed.
Moreover, a new party (especially a new defendant) may not be added
(or substituted) in terms of
this procedure, unless proper notice has
in terms of Rule 28(1) been given to
all
the affected parties
,
including the erstwhile and the new defendants in the current
matter,
[12]
and, unless the new defendant has consented to be added or
substituted,
[13]
or, at least, has acknowledged his addition and indicated his
intention to defend. How would the new party know of his or her
inclusion in the action if summons is not properly served? This was
not done in the current matter.
[16]
Therefore, so I hold, the amended combined summons and subsequent
‘consequential plea’ in relation to the substitution
of
the defendant for someone else is bad in law and could never have
been ‘effected’ as an amendment to the papers
in terms of
Rule 28.
[17]
The arguments presented by Counsel for both parties, and the
authorities that I have been referred to by Counsel for the plaintiff
have not been very helpful in this regard. In fact, the professed
‘abandonment of the effected amendment’ cannot be
equated
to the ‘withdrawal of an admission’ as submitted by
Counsel with reference to Harms
[14]
and various cases,
[15]
which can be allowed if it amounts to an amendment that “facilitates
the proper ventilation of the dispute between the parties”,
[16]
where the original neglect of the party seeking the amendment “is
being mulcted in the wasted costs”; and, which “will
be
refused only if to allow it would cause prejudice to the other party,
not remediable by an order for costs, and, where appropriate,
a
postponement ...”
[17]
To argue that an ‘amendment’ such as the current is akin
to a ‘withdrawal of an admission’, is to compare
apples
with pears. The procedure followed by and arguments by Counsel for
the defendant drew on the wrong approach by Counsel for
plaintiff by
also using the amendment procedure in Rule 28 for substitution that
could (and should) instead have been done in terms
of Rule 15 or the
common law if required; and, by immediately entering the special plea
alluded to above, based on the legal argument
that the ‘amendment’
amounted to a totally new cause of action against a new defendant
and, therefore, that it had
prescribed. However, had the defendant
been substituted properly in terms of the rules, it is clear from
defendant’s amended
plea
[18]
that the effect of the transfer from Transnet to SARCC in March 2009
and to PRASA in 2008 of the ownership in and to the rail commuter
assets, together with all its assets and responsibilities, including
liabilities was retrospective or
ex
tunc
. In such a case the
special plea of prescription could never have been legally begotten.
I can also find no merit in Counsel’s
criticism of plaintiff’s
possible renewed attempt at amendment of pleadings, which can in
terms of Rule 28(10) be effected
at any stage before judgment, in
that such procedure would also result in a valid claim to
prescription because the current ‘amendment’
put an end
to the proceedings that were initially instituted against Transnet.
[18]
Lastly, even if I am wrong in holding that the so-called ‘amendment’
was ‘effected’ in terms of the
wrong procedure and,
therefore, to be regarded as
pro
non scripto
, Counsel for
plaintiff’s argument that he is abandoning the ‘amendment’
is not a substantive application being
brought in terms of a proper
Notice of Motion
[19]
(or an interlocutory one for which proper notice had been given),
[20]
which is being opposed by defendant. Therefore, there is no
‘application’ before court which requires a ruling in
favour of one of the parties and I pertinently refuse to accede to
Counsel’s request on behalf of the defendant that the
‘application’ should be denied with costs.
[19]
I do however rule that the so-called ‘amendment’ of the
combined summons by substituting the defendant as cited
is of no
consequence for the current purposes. Therefore, plaintiff has the
choice whether to proceed on the original papers, possibly
at his own
peril, or to follow the correct procedure in terms of Rule 15 or the
common law to add or substitute a defendant before
proceeding with
the trial. Amendments to the pleadings in terms of Rule 28(10) are
possible until final judgment. The latter would
however of necessity
occasion a request for postponement which will almost certainly be
visited with an order for costs against
him. The history of the
matter as set out above suggests that the parties did not
bona
fide
and properly confer during the pre-trail conference that was
held in terms of Rule 37. This much appears to be clear from the
different
accounts of the parties as to what actually transpired when
the question of
locus standi
was consulted on and I therefore
deem it advisable that the parties hold or continue with a conference
before a judge in chambers
with a view to limit the issues before
proceeding with the trial. The parties are called upon and directed
to do so in terms of
Rule 37(8)(a). Consequently, the matter is
struck off the roll with costs to be determined in the main trial.
____________________________
A
A LAMPRECHT
ACTING
JUDGE OF THE SOUTH GAUTENG HIGH COURT
POSTEA
:
Paragraph [15] on p 12 of the judgment above has been amended
mero
motu
to include an omission
as part of my reasons for judgment, which have not been read out on
record. The relevant addition has been
highlighted for the parties to
take note thereof and no reporting of the judgment should be done
without the amendment. The Registrar
is directed to notify the
parties of this amended judgment and to replace the copy of the
judgment on file with this amended version.
____________________________
A
A LAMPRECHT
ACTING
JUDGE OF THE SOUTH GAUTENG HIGH COURT
Representation
for the applicant
:
Counsel
Adv LS De Klerk, SC
Instructed
by Attorneys: Tyron I Pather Inc
Representation
for respondent
Counsel
Adv M Smit
Instructed
by Attorneys: Cliffe Dekker Hofmeyr Inc
[1]
In other words, the situation as it was at the
time of the incident the incident.
[2]
The situation subsequent to PRASA’s coming
into existence.
[3]
Supra
para [2].
[4]
Para 1.4 on p12-13 of the Bundle ‘Index:
Pre-Trials’.
[5]
Although this would normally be confidential, the
e-mailed requests and responses between the attorney and Counsel for
plaintiff
were eventually forwarded to the attorney for defendant
and were handed in during argument by Mr Smit for the defendant.
[6]
Barely a week before the allocated trial date.
[7]
Notably
Transnet t/a Metrorail, and, not PRASA. No
notice has ever been served on PRASA.
[8]
When one follows the language used in the e-mails
and the procedure – even argument in court dealt with only the
procedure
in terms of Rule 28.
[9]
In para 3 of the ‘Consequential
Plea to Amended Particulars of Claim’.
[10]
1997 (2) SA 1
(A) at 15H-16C. See too
Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smit
2000 (2) SA 789
(SCA)
at 794C-G;
Mazibuko v Singer
1979 (3) SA 258
(W) at 265D-266C;
Tengwa
v Metrorail
2002 (1) SA 739(C)
at
744I-745B;
Firstrand Bank Ltd v Nedbank
(Swaziland) Ltd
2004 (6) SA 317
(SCA)
at 321A-C; and,
Mntambo v Road Accident
Fund
[2007] ZAGPHC 151
;
2008 (1) SA 313
(W) at 318B-C.
[11]
Emphasis added. Recognition is given to Farlam,
Fichardt, Van Loggerenberg
Erasmus
Superior Court Practice
(Loose-leaf
Annotated ed) at B1-181 for the authorities cited as well as the
quote and reasoning from
Sentrachem
Ltd v Prinsloo
.
[12]
Holdenstedt Farming v Cederberg Organic Buch
Growers (Pty) Ltd
2008 (2) SA 177
(C)
at 181B-D.
[13]
Greef v Janet
1986
(1) SA 647 (T).
[14]
[14]
Harms
Civil Practice
in the Superior Courts
(Loose-leaf
Annotated ed) B28.20 at p B – 191.
[15]
Bellairs v Hodnett and Another
1978
(1) SA 1109
(A);
Trans-Drakensberg Bank
Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and
Another
1967 (3) SA 632
(D);
Barclays
Bank International Ltd v African Diamond Exporters (Pty) Ltd (1)
1971 (1) SA 93
(W);
Coopers (South
Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlinsbekämpfung MBH
1976
(3) SA 352
(A).
[16]
Rosenberg v Bitcom
1935
WLD 115
at 118.
[17]
Per Wessels JA in
Coopers supra
referring to
Caney
J’s conclusion in
Trans-Drakensberg
Bank Ltd supra
.
[18]
At
para 3 f. and g. of the
‘Consequential Plea to Amended Particulars of Claim’
quoted in para [12]
supra
.
.
[19]
Rule 6(1).
[20]
Rule 6(11).