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[2017] ZAGPJHC 47
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Magagula v South African Rail Commuter Corporation Ltd (11032/07) [2017] ZAGPJHC 47 (21 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 11032/07
Reportable: NO
Of interest to other
judges: NO
Revised.
21 February
In
the matter between:
MAGAGULA,
LOLO
ELIZABETH Plaintiff
And
SOUTH
AFRICAN RAIL COMMUTER CORPORATION
LTD Defendant
JUDGMENT
SPILG,
J:
BACKGROUND
1.
This is an application to amend the plaintiff’s particulars of
claim at a stage after the plaintiff had closed its case
and during
the cross-examination of the defendant’s first witness.
2.
It is common cause that at about 16h00 on 10 March 2006 S. Magagula
sustained injuries when he fell from a moving train as it
departed
from the Johannesburg Station.
He
was 17 years old at the time.
3.
In May 2007 S.’s mother instituted proceedings as his mother
and natural guardian. S. was still a minor at the time.
The
claims made on his behalf were for future hospital, medical and
similar expenses as well as loss of future earning capacity
and
general damages.
The
plaintiff also claimed to have suffered damages in her personal
capacity in relation to past medical expenses.
4.
Despite S. attaining majority the plaintiff brought an application in
2009 to be appointed
curatrix ad litem
until the final
determination of the case and also applied for the appointment of a
curator bonis
should it become necessary.
5.
S.’s neuropsychological assessment indicated that he had
sustained a severe head injury in the accident but mentioned that
he
had significant pre-existing learning difficulties. The conclusion
was that he was able to read, had a basic understanding both
of
social processes and of money but that his pre-morbid condition
compounded by the severe head injury resulted in S. probably
suffering permanent neuropsychological sequelae and loss of cognitive
potential; whatever intellectual potential he had was extinguished
by
the accident and he was likely to have a higher risk of
neuro-psychiatric illness.
The
other significant injury sustained by S. was the traumatic amputation
of his left arm at the shoulder when he fell under the
train’s
wheels.
6.
On 26 May 2009 Claassen J granted on order appointing the plaintiff
as the
curatrix ad litem
to S. for the purposes of claiming
damages against the present defendant, being the South African Rail
Commuter Corporation Ltd,
and Transnet Ltd which was then cited as
the second defendaant
THE
INITIAL PLEADINGS
7.
The cause of action relied on was the negligence of the train driver,
guard, ticket examiner or train conductor. The substantive
ground was
that one or more of them allowed the doors of the train to open while
it was still in motion and failed to prevent S.
from falling off the
moving train when by the exercise of reasonable care one or the other
could and should have done so.
8.
There were also a number of broad catch-all allegations of negligence
such as failing to pay due regard to the safety and well-being
of
commuters.
However
all the alleged negligent acts and omissions were confined to these
same categories of employees whose negligence was limited
to what
they personally did or omitted to do on the day in question.
9.
The defendant pleaded that S. tried to jump onto a moving train as it
was departing from the station but fell between the platform
and the
train. All acts of negligence on behalf of the defendant’s
employees were denied and in the alternative the defendant
pleaded an
apportionment.
THE
TRIAL
10.
The trial commenced before me in September 2011. S. testified and
also his two friends who had been with him that day. Their
testimony
was that they had boarded the train and were in the carriage near the
door as the train was full. There were however
some people on the
train who were pushing to get out saying that they had boarded the
wrong train. They continued pushing to get
out as the train started
to move. Because the train doors were not closed when the train
departed the physical pressure of this
group trying to still
disembark forced S. to fall off the train while it was in motion.
11.
During the course of the plaintiff’s case an inspection
in
loco
was held on the platform where the accident occurred.
12.
The plaintiff closed her case and the defence led the train driver as
its first witness. During his evidence, including while
under
cross-examination by Adv
Mokopo
the train driver stated that
in his experience people keep the doors open and hang onto them while
the train is in motion. It is
something he has seen and is bound to
happen when the trains are overcrowded. It occurs during peak hour on
a weekly basis. The
remedy taken was to introduce more coaches and
platform marshals.
13.
At this stage
Adv Joseph
objectedto the line of
cross-examination on the grounds that the plaintiff’s
counsel was raising issues that went beyond
the ambit of the
pleadings.
14.
Adv Mokopo then sought a short adjournment to amend the plaintiff’s
particulars of claim. A concern I expressed was that
if an amendment
was not opposed there would still be the need for the defence to
consult with the train driver despite cross-examination
having
commenced. This was readily accepted by plaintiff’s
counsel.
15.
On the following day an amendment was presented. By agreement the
matter was postponed sine die in order to enable the defence
to
consider its position.
THE
AMENDMENT
16.
The amendment remained in limbo and eventually a meeting was sought
to assist in moving the matter forward after the defendant
had
objected to the proposed notice of amendment. As a result an
application to amend in terms of rule 28 was served in mid-November
2014.
17.
The salient features were firstly the removal of Transnet as the
second defendant since the remaining defendant had already
pleaded
that it had taken over the management and operational control of the
commuter rail services of Transnet pursuant to a sale
of the latter’s
business.
18.
The most significant proposed amendment was the introduction of a
ground of negligence based on a duty of care owed by the defendant
itself to ensure that;
a. the coaches of the
train would be safe for use by the public
b. the train driver would
not set the train in motion unless all doors were properly closed;
c. boarding and
dismounting from the coaches would proceed without endangering the
safety of the public;
d. safety regulations and
precautions would be implemented in respect of the safe boarding and
alighting from the trains;
e. the coaches would be
safe for use by the public.
and
that the defendant was negligent in a number of additional respects
not covered in the initial formulation of the claim.
19.
The amendment now sought to rely on a number of new grounds of
negligence in relation to the expanded grounds of duty of care
which
was allegedly owed by the defendant to railway commuters. These
grounds included that ;
a. The defendant failed
to employ an adequate number of personnel to prevent members of the
public from being squeezed or pushed
out of the train once it was in
motion;
b. The defendant’s
employees failed to take any adequate precautions to prevent the
trains from being overcrowded, commuters
from being pushed out of a
moving train by other commuters and to maintain adequate control of
commuters.
20.
The defendant objected to the amendment in terms of rule 28(4) and
the plaintiff brought an application allowing the amendment.
THE
ISSUES
21.
The objection was confined to those parts of the amendment which
raised for the first time the negligence of persons other than
the
train driver, guard, ticket examiner or train conductor.
22.
The issues raised in the objection were that;
a. The amendment would
introduce a new right of action which had become prescribed;
b. The defendant would be
unfairly prejudiced and irreparably harmed because the failure to
raise these grounds in good time prevented
it from undertaking a
proper investigation and responding to it;
c. The amendment was
vague and embarrassing because the employees were stated to be
unknown or indeterminable;
d. The plaintiff did not
have a reasonable ground or cause to propose the amendments. This
ground was not persisted with, and correctly
so in my view having
regard to the testimony already placed before the court.
PRESCRIPTION
23.
The amendment was brought more than three years after S.
attained majority and more than three years after the plaintiff
was
appointed as
curatrix ad litem
.
24.
Adv Makopo argued that in terms of
s13
(1) (a) of the
Prescription
Act 68 of 1969
the completion of prescription was interrupted when S.
was placed under curatorship in terms of Claassen J’s order of
26
May 2009.
25.
The defendant however contended that once the plaintiff was appointed
as curatrix she substituted S. as creditor and since she
was of full
legal capacity prescription commenced running again. Reliance was
placed on
Kotze N.O. v Santam Insurance Ltd
1994(1) SA 237 (C)
and a passage from
Extinctive Prescription
by MM Loubser
(1996) which dealt with that case.
26.
The relevant parts of the provision read:
13 Completion of
prescription delayed in certain circumstances
(1) If-
(a) the creditor is a
minor or is insane or is a person under curatorship or is prevented
by superior force including any law or
any order of court from
interrupting the running of prescription as contemplated in
section
15
(1);
…
.
and
(i) the relevant
period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one
year after, the
day on which the relevant impediment referred to in paragraph (a),
(b), (c), (d), (e), (f), (g) or (h) has ceased
to exist,
the period of
prescription shall not be completed before a year has elapsed after
the day referred to in paragraph (i).
27.
In my
view neither Kotze nor the excerpt from: Loubser supports the
defendant’s submission. One of the issues in
Kotze
was
whether prescription could run against a person
prior
to
being placed under curatorship in cases where he or she was not
insane having regard to the wording of
s13
(1) (a) of the
Prescription Act and
s14 of the Motor Vehicle Accidents Act 84 of
1986 which dealt with the prescription of claims in personal injury
cases arising
from a motor vehicle accident. The submission on behalf
of the insurance company was that the MVA Act took precedence over
the
Prescription Act and
that “because
no
mention is made of persons who are not of full mental capacity or
insane, but have not been detained or placed under curatorship,
prescription would run against such persons.”
[1]
28.
Kotze
was therefore concerned with whether prescription ran
prior to the appointment of a curator in cases of a patient who was
not insane
but mentally impaired. This much is clear from the
following passages of Foxcroft J’s judgment:
“
The
Prescription Act grouped
together persons who were minors, were
insane, were under curatorship or were prevented by superior force
from interrupting the
running of prescription, and provided that
prescription would not run against such persons while the relevant
impediment still
existed. The reason for such exceptional treatment
was grounded in the common-law proposition that advantage cannot be
taken of
a person who is unable in law to protect himself
.”
(at 247B-C)
“
The reason for
not allowing prescription to run against a person under curatorship
in terms of the Motor Vehicle Accidents Act is
clear. Such a person
cannot take juristic steps himself. A person in plaintiff's situation
in the present case should on the authority
of Pheasant v Warne
(supra at 487), be treated in the same way, legally speaking, as the
insane person or furiosus of the Roman
law.
…
Could Parliament ever
have intended such a person to be in a position where prescription
would not run against him once a curator
was appointed, but would run
against him before a curator had been appointed? I do not think so
.”
(at 247G-J)
29.
An ordinary reading of section 13 as a whole in the context of the
Prescription Act and
having regard to the purpose of providing for
the exceptions contained in subsection (a) (as mentioned in the first
passage cited
from
Kotze)
as well as the need to
have consistency of application in respect of each of the postulated
situations can only mean that
prescription will not run for as long
as any one of the mentioned impediments is present.
30.
If regard
is had to the other subsections the legislature fully appreciated
that the impediment may endure for the creditor’s
lifetime
(such as a debt between spouses
[2]
or where the debtor is a member of the governing body of a juristic
person
[3]
).
Moreover
a curator ad litem does not become the creditor. The plaintiff is the
court appointed representative of S. because he lacks
the mental
capacity to make decisions for himself. See
Coughlan NO v Road
Accident Fund
2015 (4) SA 1
(CC) at para 4 ftn 2.
31.
However the plaintiff’s own claim for past medical expenses
would have prescribed in 2009 if summons did not interrupt
its
running in respect of the grounds raised for the first time in the
amendment.
32.
It is axiomatic that summons interrupts the running of
prescription in respect of a right of action. Accordingly
a new cause
of action may be introduced after summons has been served without
raising an issue of prescription provided it falls
within the right
of action contained in the original summons. See
Sentrachem Ltd v
Prinsloo
1997 (2) SA (SCA) at 15B-E.
The
reason for this distinction is that s that
s 15(1)
of the
Prescription Act provides
that the running of prescription is
interrupted
'by
the service on the debtor of any process whereby the creditor claims
payment of the debt'
,
and that a claim for payment of a debt is not to be equated with a
cause of action relied on to support the claim
[4]
.
33.
In
Sentrachem
the court held that a summons which was
excipiable because it failed to disclose a cause of action, provided
it was not a nullity,
could nonetheless interrupt prescription.
Eksteen JA said at p15H-J :
“
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 oorsponklike 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”
34.
In
Sentrachem
the appellate division expressly endorsed the
distinction drawn in the minority concurring judgment of Trollip JA
in
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at
825G-H that:
“’
Cause of
action' is ordinarily used to describe the factual basis, the set of
material facts, that begets the plaintiff's legal
right of action
and, complementarily, the dependant's 'debt', the word used in the
Prescription Act. The
term, 'cause of action', is commonly used in
relation to pleadings or in statutes relating to jurisdiction or
requiring prior written
notification of a claim before action thereon
is commenced. But it is not used in either the CMVI Act or the
Prescription Act. And
its use in the present context may possibly
lead to erroneous reasoning. For in claims in delict for damages
under the common law
or for compensation under the CMVI Act, I am not
sure that it necessarily follows that, because one factual basis
differs from
another in some respect or respects, separate or
different rights of action arise; on the contrary, both cases may
nevertheless
beget only one right of action or debt, eg one for the
plaintiff's entire patrimonial loss.”
35.
The case regularly cited of when the original summons can
interrupt the running of prescription despite the introduction
of a
different cause of action in a subsequent amendment is
Mazibuko v
Singer
1979 (3) SA 258
(W). Colman J at 265H-266F said:
“
The effect of
those cases, as I understand them, was that in deciding whether
prescription was interrupted, in relation to a particular
claim, by
prior process served during the prescriptive period, one looks to see
whether in the earlier process the same claim was
preferred, not
whether the same cause of action (or any cause of action) was made
out in the earlier process. As pointed out in
one of the cases,
it
is inaction, not legal ineptitude
, which the
Prescription
Act is
designed to penalise. But, as none of those cases was decided
under the current
Prescription Act 68 of 1969
, it will be appropriate
to see what that Act lays down in respect of interruption. Section 15
(1) of the Act provides that:
"The founding of
prescription shall... be interrupted by the service on the debtor of
any process whereby the creditor claims
payment of the debt".
…
..
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.
That approach is in
conformity with the cases which I have cited. It is in conformity,
also, with the test for res judicata propounded
by Spencer-Bower and
Turner Res Judicata 2nd ed at 160 para 197. The concept of res
judicata is, if course, closely related to
the concepts involved in
the instant problem.
If I turn now to the
case before me, I find that the amendment did not introduce a claim
for payment of a debt other than the debt
in respect of which payment
was claimed when the summons was issued. What the amendment did was
to introduce a reference to an
additional default, just as a person
who claims damages arising from a motor collision does when he
introduces, at a later stage,
a further head of negligence in support
of his claim. An amendment of that sort can, in my view, be allowed
and relied upon even
if it is sought at a time when the claim would
have been prescribed but for the service of the summons sought to be
amended.”
(emphasis
added)
36.
If a
summons which fails to disclose a cause of action can nonetheless
interrupt prescription
[5]
and if
a new ground of negligence can be introduced without falling foul of
the
Prescription Act
[6
]
then it
is difficult to appreciate how an act of negligence committed by the
defendant through another category of employee in
relation to
preventing the doors of the coach remaining open when the train is in
motion whether due to overcrowding or otherwise
can amount to a new
right of action.
37.
The basis
of determining what amounts to a right of action that will interrupt
prescription for the purposes of preventing prescription
being raised
in respect of a subsequent amendment may now also have to be informed
by the judgment in
Makate
v Vodacom Ltd
2016
(4) SA 121
(CC). The majority held that the term ‘
debt’
in the
Prescription Act had
to be narrowly interpreted so that it
least impaired the
section 34
constitutional right of access to
courts
[7]
. It was however
unnecessary on the facts of the case to determine the precise meaning
of the term “
debt
”
in
s10
of the
Prescription Act.
38.
The
issue before me was argued prior to the decision of the
Constitutional Court in
Makate.
By reason of the
conclusion I have reached, that the right of action can be
subsequently altered by the introduction of a
different factual
matrix involving different levels of the defendant’s staff
compliment or management without raising an
issue of prescription, it
is unnecessary to consider the possible application of the
ratio
in
Makate
either to restricting the common law
definition of ‘
debt’
or its application by reason
of the limitation provisions of s 36 of the Constitution and the
broader public interest considerations
in a case which involves
the risk of serious injury by reason of a possible on-going systemic
failure by an organ of state,
including a state owned enterprise, to
guard against it when providing a required public service.
PEJUDICE
AND IRREPERABLE HARM
39.
This essentially related to the lengthy delay from September 2011 to
November 2013 before the application to amend was brought.
I am
satisfied that despite the length of time the issues raised are, on a
fair interpretation of the evidence of the train driver
systemic and
therefore would, or should, have come to the attention of management
in the ordinary course. The affidavit opposing
the application for
amendment did not suggest that this issue had not come to the
attention of management at any relevant time.
40.
I am satisfied that despite the rather thin explanation there is no
actual prejudice demonstrated and the other factors that
should be
taken into consideration favoured the granting of condonation at the
commencement of the application.
VAGUE
AND EMBARRASING
41.
It was contended that the amendment is vague and embarrassing
because the employees were stated to be unknown or indeterminable.
This was in my view correctly not pursued in argument.
42.
It is often the lot of a defendant to be confronted with a claim
alleging actions by an employee whose name was unknown to the
plaintiff. It does not render the claim vague and embarrassing.
Otherwise many cases against organs of state and large institutions
would never see the light of day.
Added
to this, in the present type of case, at the best of times the
identity of those in charge of systems would not be known to
a
claimant. However the issue of whether the risk was known and whether
adequate steps were taken to guard against it would, or
should,
ordinarily be matters contained in reports dealt with by those in
management.
ORDER
43.
It was for these reasons that the amendment to the particulars
of claim was granted.
_______________
SPILG
J
DATE
OF JUDGMENT:
21 February 2017
FOR
PLAINTIFF:
Adv N Makopo
Thembelihle
Dlamini Attorneys
FOR
DEFENDANT:
Adv B
Joseph
Clyde
and Co
[1]
At 246E
[2]
See s13(1)(c)
[3]
See s13(1)€
[4]
Sentrachem
at
15A-C:
“
Probleme
ontstaan dikwels waar 'n eiser aksie instel en bepaalde bewerings in
die besonderhede van vordering maak op grond waarvan
gestel word dat
die verweerder iets aan die eiser skuld. Die eiser wysig later die
besonderhede van vordering, soms om die bewerings
waarop gesteun
word en soms om die omvang van die skuld te verander. Die beswaar
word dan opgewerp dat die 'skuld' ná
die wysiging 'n ander
'skuld' is as die waarop oorspronklik staatgemaak is, en dat die
nuwe skuld verjaar het. Dit het
ook in die onderhawige geval
gebeur.
Artikel 15(1) van die
Verjaringswet 68 van 1969 bepaal dat verjaring gestuit word 'deur
die betekening aan die skuldenaar van
'n prosesstuk waarin die
skuldeiser betaling van die skuld vorder'. Dit dien daarop gelet te
word dat daar nie van 'n skuldoorsaak
of 'n grond van aksie gepraat
word nie, maar slegs van die vordering van 'n skuld.”
[5]
Sentrachem
at
15H-J
[6]
Mazibuko
at
266E-F
[7]
S34 of the Constitution provides:
“
Access to
courts
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”