About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 10
|
|
D A v Marais and Others (2019/2776) [2020] ZAGPJHC 10 (7 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2019/2776
DATE
:
7
th
February 2020
In
the matter between:
A
,
D
Plaintiff
and
MARAIS
,
EUGENE
First Defendant
STEPHENS
,
JONATHAN
Second Defendant
EUGENE
MARAIS ATTORNEYS
Third Defendant
MARAIS
STEPHENS
ATTORNEYS
Second Respondent
Coram:
Adams J
Heard
:
11 November 2019
Delivered:
7 February 2020
Summary:
Civil procedure – application to amend
particulars of claim in terms of Rule 28(4) of the Uniform Rules –
delictual
claims for damages based on the duty of care –
whether amendment will introduce excipiable particulars of claim,
which would
be vague and embarrassing – not prejudicial to
defendants –
plaintiff granted leave
to amend
ORDER
(1)
The plaintiff is granted leave to amend her
particulars of claim as set out in her notice of intention to amend
dated the 2
nd
April 2019.
(2)
The plaintiff shall effect this amendment
within ten days from date of this order.
(3)
There shall be no cost order relative to
this application for leave to amend.
JUDGMENT
Adams
J:
[1].
A central
issue in this opposed application by the plaintiff for leave to amend
her particulars of claim relates to whether or not
the proposed
amendment of the particulars of claim would render same excipiable.
The first and third defendants (‘the defendants’)
contend
that the proposed amended particulars of plaintiff’s claim
would be susceptible to an exception on the basis that
it would be
vague and embarrassing, which, in turn, would prejudice them.
[2].
The plaintiff
applies for leave to amend her particulars of claim in accordance
with Uniform Rule of Court 28(4). The first and
third defendants
oppose the application. They contend that if the proposed amendment
of the plaintiff’s particulars of claim
is allowed, they (the
first and third defendants) would be embarrassed by the vague and
embarrassing amended particulars of claim,
and that they would suffer
prejudice as a result of such vagueness and embarrassment.
[3].
The summons in
this action and the plaintiff’s particulars of claim were
seemingly issued on the 2
nd
of January 2019. Shortly thereafter the summons was served on the
defendants, who entered appearances to defend during February
and
March 2019. On the 12
th
of March 2019 the first and third defendants caused to be delivered a
notice to remove causes of complaint in terms of rule 23(1)
and rule
30(2). In terms of this notice, the first and third defendants
complained that the plaintiff’s particulars of claim
are vague
and embarrassing and that it constituted an irregular step. There
were in total twelve complaints by the first and third
defendants,
and these complaints related mainly to manner in which the plaintiff
pleaded her case and the way in which her cause
of action had been
formulated. The first complaint, for example, is that the plaintiff’s
particulars of claim, rather than
being a clear and concise statement
of the material facts upon which the plaintiff relies for her claim,
as required by rule by
rule 18(4), is ‘an Iliad of cacophonic
dreck and is thus irregular as envisaged in terms of rule 18(12)’.
Also, so
the defendants complained, the plaintiff pleaded evidence,
when she was obliged to plead only
facta
probanda.
The defendants also contend that the plaintiff had not complied with
the provisions of rule 18(10) in that she had not quantified
her
claim properly. The defendants furthermore complained that the
plaintiff in her particulars of claim makes vexatious, scandalous
and
irrelevant allegations.
[4].
I interpose
here to mention that in this action the plaintiff is not legally
represented. She seemingly drew up the papers herself.
The
particulars of claim, which understandably is not a model of clarity
and precise pleading, runs into some eighty eight pages
and, as
rightly contended by the defendants, often reads like an affidavit
containing evidence.
[5].
The
plaintiff’s cause of action is based in delict. The defendants
in casu
represented her erstwhile husband in a divorce action instituted by
her during October 2007. The divorce was finalised during August
2012, and it is the case of the plaintiff that the delay in the
finalisation of the divorce, which delay brought with it extra
costs
for the parties and great pecuniary losses for their accrued estates,
was as a direct result of the culpable and unlawful
conduct on the
part of the defendants. Additionally, so the plaintiff alleges, the
conduct of the defendants caused her immense
emotional and
psychological trauma. All of this, the plaintiff claims, caused her
damages in respect of which the defendants are
liable in law to
compensate her.
[6].
In a nutshell,
the plaintiff alleges that, although there was no contractual
relationship at any stage between her and the defendants,
they owed
her a legal duty of care not to cause her the harm which they had in
fact caused her over the duration of the divorce
proceeding. They
failed to discharge that duty, thus causing her patrimonial and
non-patrimonial damages, which they should now
pay.
[7].
In her
particulars of claim the plaintiff gives details and particulars of
the conduct of the defendants during the course opposed
divorce
proceedings. There are repetitions abound and the particulars contain
numerous examples, repeated more than twice, of conduct
on the part
of the defendants which, according to the plaintiff, is unbecoming of
an attorney and officers of the court. In between
the many exposés
and at times too detailed narrations of events the plaintiff would
from time to time allude to a crucial
aspect of her case, which, in
my view, gives a hint of the case the plaintiff intends presenting.
For example, para 7.8 of the
particulars read as follows:
‘
The
plaintiff pleads that there was a duty of care owed by the defendants
to the plaintiff and the plaintiff and Mr A’s children,
which
was breached, causing irreparable financial harm to the plaintiff
(and therefore her children).’
[8].
As I indicated
above, the defendants gave notice to the plaintiff to remove certain
causes of complaint. I have already alluded
to some of those
complaints above. There were also general complaints relating the
fact that the plaintiff’s particulars
of claim contain legal
argument and the fact that the plaintiff made reference to settlement
negotiations during the divorce proceedings,
which, according to the
defendants, is impermissible. Then there’s also an allegation
that the particulars are contradictory
in that on the one hand the
plaintiff pleads that the defendants do not owe her a duty of care,
whilst, in the same breath plaintiff
states that her case is based on
the duty of care owed to her by the defendants.
[9].
In an
endeavour to address the above complaints by the defendants, the
plaintiff on the 2
nd
of April 2019 delivered notice of intention to amend her particulars
of claim. The defendants objected to the proposed amendment
on the
basis that the amendments do not cure the causes of complaint
mentioned in the rule 23 (1) notice. The objection is therefore
based
on the fact that, according to the defendants, the proposed amendment
would still render the particulars vague and embarrassing
and
therefore excipiable. It bears emphasising that, if regard is had to
the defendants’ notice of objection to the proposed
amendment,
the defendants oppose the plaintiff’s proposed amendment on the
basis that the proposed amended particulars of
claim would introduce
allegations which are vague and embarrassing, as does the present
particulars of claim. What the defendants
say is that the proposed
amendment would render the plaintiff’s particulars of claim
excipiable on the grounds set out in
its notice of objection and in
those circumstances the amendment ought not to be allowed.
[10].
In
Moaki
v Reckitt & Colman (Africa) Limited
,
1968 (3) SA 98
(A), the court held that the pleading in question in
that matter lacked both clarity and conciseness. It was more in the
‘nature
of a rambling preview of the evidence proposed to be
adduced at the trial than a statement of the material facts relied
upon as
a basis for the relief claimed by the appellant’.
[11].
I do not
believe that this description of pleadings finds application in the
present matter. As I said, the plaintiff’s particulars
of
claim, whilst not a model of clarity and precise pleading, do set out
the facts which constitute the premises for the relief
sought. It is
trite that a delictual claim based on a duty of care, which is a
legal conclusion, is dependant to a large extent
on the facts in the
matter. The plaintiff has set out in detail (maybe at times too much
detail) the facts and the circumstances
which she believes gave rise
to that duty of care which form the basis for her claim for damages
against the defendants. In my
view the relief prayed for does indeed
flow from facts alleged by the plaintiff.
[12].
In
its amended form, the particulars of claim broadly set out the
plaintiff’s claim as follows: the facts in this matter,
particularised in detail, give rise to a duty of care on the part of
the defendants not to cause the plaintiff damages. The most
notable
of those facts is that the defendants are attorneys and officers of
the court. They have a legal duty to act honestly and
conduct
themselves in an irreproachable manner. The fact that they acted for
the plaintiff’s husband in the divorce does
not mean that they
could act to the detriment of the plaintiff. The defendants have
failed, so the plaintiff pleads, to discharge
that duty, which caused
her harm.
[13].
It is trite
that a court should endeavour to look benevolently instead of
over-critically at a pleading, and it must be looked at
as a whole.
If there is any uncertainty in regard to a pleader's intention an
excipient cannot avail himself thereof unless he
shows that upon any
construction of the pleadings the claim is excipiable. In that regard
see:
Amalgamated
Footwear & Leather Industries Jordan & Co Ltd
,
1948 (2) SA 891
(C) at 893.
[14].
Amendments
will always be allowed unless the application to amend is
mala
fide
, or
unless such an amendment would cause an injustice to the other side
which cannot be compensated by costs. In other words, unless
the
parties cannot be put back for the purposes of justice in the same
position as they were when the pleadings which it is sought
to amend
were filed.
In
casu
,
there are no allegations by the defendants that the plaintiff is
acting
mala
fide
. I am
not persuaded that the defendants will be prejudiced by intended
amendment; or that they would suffer any injustice.
[15].
I am therefore
of the view that the plaintiff should be granted leave to amend.
There is no merit in the defendants’ objection
to the proposed
amended particulars of plaintiff’s claim.
Costs
[16].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[17].
The plaintiff, in applying for leave to
amend her particulars of claim, was asking for an indulgence from the
court. This means
that she (the plaintiff) is liable to pay the cost
of the application for leave to amend.
[18].
The defendants, on the other hand, should
pay the cost of the opposition to the application. This cost order
would however be cancelled
out to a greater or lesser extent by the
cost order to which the plaintiff is entitled.
[19].
In any event, the plaintiff is not legally
represented in these proceedings and therefore is not entitled to
recover any legal fees
other than actual expenses and expenditures
incurred in the litigation.
[20].
I am of the view that no order as to cost
shall be fair, reasonable and just to all concerned. Therefore, in
the exercise of my
discretion I intend granting no order as to costs.
Order
Accordingly,
I make the following order:-
(1)
The plaintiff is granted leave to amend her
particulars of claim as set out in her notice of intention to amend
dated the 2
nd
April 2019.
(2)
The plaintiff shall effect this amendment
within ten days from date of this order.
(3)
There shall be no cost order relative to
this application for leave to amend.
_________________________________
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD ON:
11
th
November 2019
JUDGMENT DATE:
7
th
February 2020
FOR THE PLAINTIFF /
APPLICANT:
In Person
INSTRUCTED BY:
In Person
FOR THE FIRST AND
THIRD DEFENDANTS / RESPONDENTS:
Adv H P Van
Nieuwenhuizen
INSTRUCTED BY:
Dybala
Attorneys