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[2016] ZAGPJHC 4
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Phina v Pick and Pay Retailers (Pty) Ltd and Another (10246/2015) [2016] ZAGPJHC 4 (29 January 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 10246/2015
DATE: 29 JANUARY 2015
In the matter between:
SOLOMON:
PHINA
..................................................................................................
Applicant/Plaintiff
And
PICK AND PAY RETAILERS (PTY)
LTD
............................................
First
Respondent /Defendant
MONDEO 369
CC
.................................................................................
Second
Respondent/Defendant
J U D G M E N T
HAWYES, AJ:
1. This matter was heard as an opposed
motion in Johannesburg on the 27th October 2015.
2. Two issues require my decision.
Firstly whether the Applicant should be permitted to amend her
combined summons and particulars
of claim and secondly whether First
Respondents exception to Applicants pleadings and claim in general
should be entertained.
Applicant’s application to amend is
also accompanied by an application for condonation.
3. The chronology of the events is as
follows:-
3.1 The Applicant instituted legal
proceedings in the above court against the First and Second
Respondents in which she claims damages
against them jointly and
severally and in the alternative arising from an incident where she
sustained injuries as a consequence
of having slipped and fallen on
water that was lying on the floor of the First Respondents
supermarket in Norwood. The incident
occurred on the 26 March 2012.
3.2 The Applicants combined summons was
served on the first Respondent on the 19th March 2015 and on the
Second Respondent on the
20th March 2015.
3.3 The First Respondent served a
notice of intention to defend on Applicant’s attorneys on the
25th March 2015.
3.4 On the 19th May 2015 (some two
months later) the First Respondent’s attorney served a notice
in terms of Rule 23 as read
with Rule 30A on the applicant’s
attorneys in which it raised several complaints against the
Applicant’s combined summons
and her particular claim.
3.5 More than a month later, i.e. on
the 24th June 2015, the First Respondent’s Attorneys served an
exception on the Applicant’s
Attorneys in terms of Rule 23.
3.6 On the 2nd July 2015 the Applicant
served a notice of her intention to amend her combined summons and
her particulars of claim
on the First Respondent’s attorneys.
3.7 On the 16th July 2015 the First
Respondent served a notice of it’s objection to the Applicant’s
notice of her intention
to amend the aforementioned pleadings.
3.8 On the 13th August 2015 the
Applicant served an application in terms of Rule 28(4) wherein she
sought the leave of the court
to amend her combined summons and her
particulars of claim in accordance with her notice of intention to
amend dated 2nd July 2015.
She also sought a prayer expunging the
First Respondent’s notice of objection and also sought costs
which were occasioned
by the First Respondent’s objection to
the proposed amendment.
3.9 The Applicant correctly pointed out
that the Second respondent had not reacted in any way to its receipt
of the combined summons
and had played no part, at all, in these
proceedings.
APPLICATION TO AMEND AND CONDONATION.
4. First Respondent’s chief
complaint against Applicant’s proposed amendment is that
Applicant is attempting to introduce
a new cause of action to the one
originally mentioned in the defective particulars of claim. The
Applicant initially referred
to the negligence of the First
Respondent and then pleaded a duty of care in its amended pleading.
First Respondent argued that
this “new” averment was
introduced after the 26 March 2012 which meant that the claim had
prescribed and could not
be entertained.
5. The applicant argued that the claim
at all material times, remained the same.
6. It is trite law i.t.o
section 15(1)
of the
Prescription Act No. 68 of 1969
that the running of
prescription shall be interrupted by the service on the debtor of any
process whereby the creditor claims repayment
of the debt.
7. In reading the dicta of Trollip JA
in Neon and Claude Cathode Illuminations (Pty) Ltd v Ephron
1978 (1)
SA 463
(A) in deciding whether prescription was interrupted by legal
process it was noted that the action must be one to enforce either
the same right which would otherwise be rendered unenforceable by
lapse of time. Trollip JA added that the substance rather than
the
form of the previous action must be considered in determining whether
or not it interrupted prescription.
8. In Mazibuko V Singer 1979(3) SA 258
(W) Colom J at pages 265H to 266B drew attention, inter alia, to the
fact that the
Prescription Act penalised
inaction not legal
ineptitude. He then went on to say at page 266 B-C:
“The question to be asked,
therefore is this one: ‘Did the Plaintiff in the earlier
process, claim payment of the same
debt as now forms the subject
matter of the claim which is said to be prescribed?’ If the
answer is in the affirmative,
prescription has been interrupted, even
if one of the grounds upon which the claim is now based differs from
the ground or grounds
relied on at the earlier stage…”
9. The Mazibuko judgement was approved
by the Appellate Division in Sentrachem (Pty) Ltd v Prinsloo 1997 (2)
SA1 (AD). In Prinsloo’s
case the Appellate Division reaffirmed
that the correct analysis of a proposed amendment is to determine
whether a new debt has
been pleaded in the proposed amendment.
10. Whilst there are issues with the
form of the summons and particulars of claim (a matter which the
application to amend endeavours
to correct) there is no doubt that
the substance of Applicants original claim remains the same. That
claim relates to the alleged
negligence of the First and Second
Respondents for leaving water on the floor. In this instance the
concept of negligence and
a duty of care are intertwined with one
another. Holmes JA in Peri-Urban Areas Health Board v Munarin
1965
(3) SA 367
AD at page 373 E-F acknowledged that in certain
circumstances, “negligence is the breach of a duty of care.”
11. The Applicants amended pleadings
seek to amplify rather than replace their original cause of action.
As such the original cause
of action was served upon the First and
Second Respondents within the prescribed three year period.
12. Even imperfect processes serve to
interrupt prescription. This fact was acknowledged by M. Loubser in
his text book ‘Extinctive
Prescription’ at page 135 where
he stated: “A summons may interrupt the running of
prescription even if it discloses
no cause of action, provided that
it is capable of amendment.”
13. I find that Applicants claim is
materially the same as the amended claim and the amended claim has
not prescribed. It is eminently
capable of amendment without undue
prejudice to the Respondents.
14. I turn now to deal with the aspect
of condonation since it is common cause that Applicants attorney
failed to comply with
Rule 28(4)
i.e. to bring the Applicants
application for amendment within ten days of receipt of the objection
thereto.
15. Applicants attorney’s
explanation was a simple one. She was under extreme pressure of work
at the time. First Respondent’s
argument is that Applicants
explanation for the late filing of the documentation is too
simplistic and does not advance substantiated
facts to allow me to
consider whether good cause has been shown for the late filing. I
disagree. It is evident that Applicant’s
attorney’ is an
experienced attorney with right of appearance in the High Court. I
am sure that she knows which summons
should be used in specific
instances. However, when one is under pressure lapses of judgement
occur. That would probably explain
why the wrong summons form was
used in the rush to get documentation out with prescription looming
and why the application to amend
was filed late. The Applicant
should not have to suffer because of the mistake of her attorney when
there is no evidence of prejudice
to the First Respondent.
Applicants Counsel correctly placed the issue of time keeping in
proper perspective. The First Respondent
did not comply with strict
time limits in submitting its own processes. This has not gone
unnoticed.
FIRST RESPONDENT’S EXCEPTION
I.T.O
RULE 23
0i
n">
16. I will now focus on the various
points taken by the First Respondent wherein it excepts to the
pleadings of the Applicant.
17. The first and second causes of
complaint which have been raised in the First Respondent’s
exception relate to the Applicant’s
failure to incorporate in
her combined summons reference to the fact that the First Respondent
is entitled to file a notice of
intention to defend in the event of
it wishing to defend the action and thereafter to file a plea,
exception or notice to strike
out as envisaged in the rules.
18. I agree with Applicant’s
Counsel’s submissions that although Applicant’s combined
summons did not comply strictly
with the rules of Court, First
respondent did not suffer prejudice and in fact filed its notice of
intention to defend. The application
to amend addresses this
shortcoming.
19. In so far as the third cause for
complaint is concerned First Respondent correctly alleges that since
Applicants claim is an
illiquid claim for damages the particulars of
claim should have been separated from the combined summons itself,
and not have been
incorporated therein. The application to amend
addresses this shortcoming.
20. I find that there is no substance
in the First Respondents fourth cause of complaint since the
registrar did in fact both sign
and stamp the Applicant’s
combined summons.
21. It is common cause that Applicant’s
attorney has right of appearance in the High Court. The application
to amend addresses
the shortcoming of not citing this on the combined
summons.
22. The First Respondents legal
argument in its fifth cause of complaint is that the Applicant did
not plead any reliance on a duty
of care which was owed to her by the
First Respondent. This has in essence been dealt with at paragraphs
9 to 11 of this judgement.
The fact that it was not specifically
mentioned at the outset does not change the nature of the claim which
is one of negligence.
The application to amend merely seeks to
address the nature of the negligence with greater particularity. The
First Respondent
is in a position to plead to these averments.
23. First Respondents next cause of
complaint is that Applicants original Particulars of Claim did not
comply strictly with
Rule 18
(10) in that particulars citied in the
sub rule were not furnished by the Applicant. Applicants Counsel
readily conceded this
point and argued that the proposed amendment to
the Particulars of Claim included two medico-legal reports, one by Dr
Gareth Lorge,
a specialist physician and a second report by M David
Hatchuel, a specialist surgeon, lecturer and examiner which reports
both
provide details of the Applicant’s injuries, her pain and
suffering, her depression, her loss of amenities of life, her
disability
flowing from the injury and the sequelae to her injuries
which provide the Respondents /
Defendants with sufficient
particularity to enable them to plead and/or to tender. I agree.
24. In respect of the last cause of
complaint raised by the First Respondent, Applicant’s Counsel
indicated that the Applicant
had now provided the
Defendant, in her proposed amendment to
her combined summons and Particulars of Claim, with full details of
her post medical and
hospital expenses and necessary and sufficient
information pertaining to her general damages.
25. Counsel for the Applicant quickly
conceded that the Applicant was only able to provide an estimate of
her claim for future medical
and hospital expenses. He alleged
further that Applicant was unable to provide further particularity in
regard thereto at this
stage and her inability to do so did not
render such particulars as being expiable.
26. I have not been able to source
authority to contradict this argument; certainly no counter argument
was adduced by the First
Respondent in this regard.
I accordingly make the following order:
1. Applicants application for leave to
amend her combined summons and Particulars of claim is hereby
granted.
2. Applicant’s non-compliance
with the relevant rules is condoned.
3. First Respondent’s exception
is dismissed.
4. First Respondent is to pay the
Applicants costs for the Application to amend only.
MA HAWYES
ACTING JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE APPLICANT: Jothi
Govender Inc
COUNSEL FOR THE APPLICANT: Adv J.H
Josephson
ATTORNEYS FOR THE FIRST RESPONDENT:
Whalley & Van der Lith Inc
COUNSEL FOR THE FIRST RESPONDENT:
Adv. I.L Posthumus
DATE OF HEARING:27 October 2015
DATE OF JUDGMENT:28 January 2016