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[2010] ZAGPPHC 138
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Radebe v Nova Risk Partners Ltd and Another (16492/06) [2010] ZAGPPHC 138 (5 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 16492/06
DATE:
5 October 2010
DOUGLAS
RADEBE
.....................................................................................................
PLAINTIFF
v
NOVA
RISK PARTNERS
LTD
...................................................................................
1
st
DEFENDANT
COMMERCIAL
AND GENERAL INSURANCE BROKERS (PTY) LTD
.............
2
nd
DEFENDANT
Judgment:
MabuseJ
JUDGMENT
MABUSE
J
:
1.
This is an interlocutory application. The Plaintiff approached this
court with an application to amend initially paragraphs 4.6b,
5, 6
and prayer B of his particulars of claim. The court granted the
application and promised to furnish reasons for its order
later.
These are the reasons.
2.
The Plaintiff is an adult businessman who resides at Mogwase in the
North-west Province. He instituted this action against the
defendants
in his personal capacity. The First Defendant is a company duly
registered in terms of the company statutes of this
country and has
its place of business located at 7 Fricker Road, Ilovo. The First
Defendant was at all material times registered
in terms of insurance
statutes of the Republic of South Africa to conduct business as an
insurer. The Second Defendant is a company
duly registered in terms
of the company laws of the Republic of South Africa with its place of
business located at 22 Jan Smuts
Avenue, Forest town, Johannesburg.
The First Defendant was at all material times acting for the Second
Defendant.
3.
On 28 March 2003 the Plaintiff purchased a Toyota Prado motor vehicle
from a motor dealer known as Rustenburg Toyota at Rustenburg
in the
North-West Province. The Plaintiff, who was at all times assisted by
one Mrs. Minie Botha, required the said motor vehicle
to be insured.
On 27 March 2007 the Second Defendant submitted to the Plaintiff a
three page quotation for comprehensive insurance
in respect of the
said motor vehicle.
4.
On the same date the Plaintiff accepted the Second Defendant's
aforementioned quotation by signing it at the foot of each and
every
page. Furthermore he authorised the Second Defendant to deduct the
regular premiums from his current bank account and sent
his
acceptance of the quotation and authorization to be faxed to the
Second Defendant by the aforementioned Minie Botha.
5.
During April 2003 the Second Defendant confirmed that the Plaintiffs
aforementioned motor vehicle had been comprehensively insured
by the
First Defendant to the value of R465 800,00. The said confirmation
which was written reads as follows:
aRE:
CONFIRMATION OF INSURANCE COVER - MR. RADEBE
We
confirm cover on behalf
of
Dominion Nova Risk Partners for the following motor vehicle:
Owner
/ Driver:
Mr.
MD RADEBE
Vehicle:
Toyota
Prado
Year:
2003
Reg.
Number:
TBA
Value:
R465
800.00
Vehicle
use:
Private
Cover:
Motor
Comprehensive
Period:
From
02/04/2003 to 30/04/2003 and monthly thereafter.
Certificate
Nr.:
EXEOO18."
6.
Accordingly,
either on 27 March 2003, in the alternative on 2 April 2003 the
Plaintiff and the First Defendant, who was at all material
times
represented by the Second Defendant, concluded a written insurance
agreement in terms of which the First Defendant insured
comprehensively the Plaintiffs motor vehicle against risks mentioned
in the Standard Motor Vehicle Insurance Policy issued by the
First
Defendant. One of the risks for which the said motor vehicle was
comprehensively covered was damage to the said Toyota Prado
arising
from motor vehicle collisions. On 2 July 2004 and near Germiston the
Plaintiffs aforementioned motor vehicle was damaged
as a result of a
motor vehicle collision in which it was involved with another motor
vehicle.
7.
On 4 July 2005, acting in terms of the insurance agreement, the
Plaintiff duly notified the Second Defendant in its capacity
as
representative of the First Defendant of the said motor vehicle
accident and the Plaintiff had at that stage complied in all
respects
with all its obligations under the policy. Subsequently the
Plaintiffs said motor vehicle was towed, on the instructions
of the
Second Defendant, to Proline Panel beaters at 301 Fourth Street,
Wynberg, Johannesburg. Proline, acting on the instructions
of the
Second Defendant, assessed the damage occasioned to the Plaintiffs
motor vehicle in the region of R209 081.72 inclusive
of VAT. Despite
the existence of the said insurance policy or agreement the First
Defendant has refused to make any payments to
the Plaintiff in
respect of the damage to the Plaintiffs motor vehicle.
8.
The Plaintiff contends that, in the circumstances, the First
Defendant is liable for payment to the Plaintiff of the amount of
R209 081.72 plus interest thereon at 15.5%. The First Defendant
refuses to pay the said amount on the basis that the premiums in
respect of the said policy were not paid. In the light of the Second
Defendant's denial, the Plaintiff contends that it was an
express,
alternatively a tacit, and further alternatively an implied term of
the agreement, that the Second Defendant would obtain
comprehensive
insurance for the Plaintiff in respect of his motor vehicle as
provided by Standard Motor Vehicle Insurance Policy
issued by the
First Defendant and secondly, that the Second Defendant would submit
to Plaintiffs bank the necessary documents for
the deduction from the
Plaintiff's bank account of the required payment. The failure to make
proper arrangements for the deduction
of the premiums from the
Plaintiffs bank account can therefore be exclusively attributed to
the Second Defendant.
9.
The Plaintiff regarded the Second Defendant's failure to make proper
arrangements for the deduction of the premiums from his
bank account
as breach of the terms of the agreement and the primary cause of the
damages that he has suffered as a result of the
motor vehicle
collision. At all material times the Second Defendant was acting as
an agent for the First Defendant. The Plaintiff
contends that in the
premises the First and Second Defendants are jointly and severally
liable to him for payment of the damages
referred to herein above.
10.
As at the time of the launching of this action the said motor vehicle
was still in the possession of Proline who refused to
release it
pending payment of the expenses it incurred in respect of the towing
and evaluation of the said motor vehicle. The Plaintiff
was
subsequently advised by his legal representative that the summons
which had been issued and which set out the cause of action
against
the Defendants had to be amended. Accordingly on 21 July 2008 the
Plaintiffs attorney's caused a notice of amendment of
his particulars
of claim to be served on the Respondent. The Plaintiffs notice of
amendment which is attached to the papers confirms
the paragraphs
that I have referred to herein above as the paragraphs the Plaintiff
had contemplated amending. On 3 August 2009
the Defendants filed an
objection against the Plaintiffs contemplated amendment.
11.
The Second Defendant's grounds of objection to the Plaintiffs
contemplated amendment are fully set out in the said objection.
Notwithstanding the grounds of objection against the contemplated
amendment, the Plaintiff contends that the proposed amendment
is
substantially the same as the original cause of action. It is his
view that the Defendants cannot be prejudiced by the aforesaid
amendment and that in any event his claim has not become prescribed.
This matter is a very important matter to him in the light
of the
fact that his motor vehicle has been damaged and he has a result of
the damage suffered extensive damages.
12.
The tendencies of the decisions in our courts have been to grant
applications for amendment of the pleadings where such could
be
allowed without prejudice to the other party. In
Moolman
v Estate Moolman and Another
1927 CPD 27
Watermeyer
J remarked that:
"The
practical
rule adopted seems to be that amendments will always be allowed
unless the application to amend is mala fide or unless
such amendment
would cause injustice to the other side which cannot be compensated
by costs, or in other words unless the parties
cannot be put back for
purposes
of
justice in the same position as they were when the pleading, which it
is sought to amend, was filed."
13.
In this division the law as set out in
McDuff
8
b
Co
(in
Liquidation) vs Johannesburg Consolidated Investments Co. Ltd
1923
TPD 309
at 310
is
still applicable and has been followed with approval in subsequent
authorities. In the said case the court cited with approval
certain
passages quoted by Wessels J in
Rishton
v Rishton
1912 TPD 718
at p. 720
from
English decisions. Relying on those decisions which had the same
effect, the court stated:
"My
practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting mala fide,
or that, by
his blunder, he has done some injury to his opponent which could not
be compensated for by cost or otherwise."
And
again:
"However,
neglectful or careless may have been the first commission and however
late proposed amendment, the amendment should
be allowed
if
it can be made without injustice to the other side; there is no
injustice
if
the other side can be compensated by cost."
See
also
Bidcon
v City Counsel of Johannesburg
1931 WLD 273
at 293; Rosenburg v
Bidcon
1935 WLD 115
at 117; Henning v South British Insurance Company
Limited
1963 (3) SA 175
at 177.
In
Walker
v Taylor
1934 WLD 101
a
proposed amendment was objected to on the basis that the effect of it
was to oust the jurisdiction of the court. The court held
that the
amendment should be allowed and that the opposing party could expect
to the amended declaration or plead especially to
the jurisdiction of
the court. Finally, in
Shill
v Milner
1937 AD 101
at 105
the
court held that the importance of pleadings should not be unduly
magnified. It stated as follows:
"The
object
of
pleading is to define the issues; and parties will be kept strictly
to their pleas where any departure would cause prejudice or
would
prevent full inquiry. But within those limits the Court has wide
discretion. For pleadings are made for the Court, not the
Court for
the pleadings …"
14.
I now wish to turn to the grounds on which the Second Respondent
objected to the Plaintiffs contemplated amendment. The Second
Defendant's objection in respect of paragraphs 2 and 4 of the
Plaintiffs notice of amendment is based on prescription. The Second
Respondent contends that the claim which the Plaintiff intends
prosecuting has become extinguished by prescription in terms of
the
provisions of the Prescription Act 68 of 1968 ("the Prescription
Act").
15.
In terms of paragraph 2 of the Plaintiffs notice of intention to
amend, the proposed new paragraphs 5.1 to 5.6 of the Plaintiffs
particulars of claim, the proposed new first alternative claim is
based on, so contends the Second Defendant, breach by the Second
Defendant of a totally new partly oral and partly written agreement
of mandate entered into by and between the Plaintiff and the
Second
Defendant which was not pleaded at all in the Plaintiffs first
alternative amendment.
16.
According to the Second Defendant's counsel, if the current
allegations and relief claimed are compared with the allegations
and
relief claimed in the proposed particulars of claim, what the
Plaintiff seeks to recover from the Defendant in the Plaintiff's
current particulars of claim is a very different debt or claim to
that which the Plaintiff seeks to receive in the proposed amendment
claim. In the Plaintiffs current particulars of claim the Plaintiff
seeks payment of money for damages he sustained, the cost of
repairing the aforementioned motor vehicle resulting from a breach of
contract by the First Defendant of an agreement of insurance
concluded between it and the Plaintiff, in other words a debt payable
by reason of a contractual undertaking by the First Defendant
to
indemnify the Plaintiff for the loss he has sustained.
17.
The
Second Defendant contends that in view of the fact that the
aforementioned debt arose more than three years before the Plaintiff
served his notice of intention to amend on 21 July 2009, the said
debt has become prescribed in terms of the provisions of the
Prescription Act. On this basis, the Second Defendant held the view
that the Plaintiff should be refused leave to amend his particulars
of claim. The test to be applied is whether the Plaintiffs
contemplated amendment sought to introduce a new cause of action. A
distinction is drawn between a "debt" and a "cause of
action". Even if an amendment seeks to introduce a new
cause of
action it is permissible, so it was argued by counsel for the Second
Defendant, provided that the debt which is claimed
in the amendment
is the same or substantially the same debt as originally claimed.
According to the Plaintiffs counsel, it is important
to draw a clear
line of distinction between an amendment whose effect is to introduce
a
new
cause
of
action
and one which
merely
introduce
fresh
and
alternative
facts
which merely serve to support the original right of action as set out
in the cause of action.
18.
The Second Defendant's attitude to the contemplated amendment is
understandable as a court will not allow an amendment to a
pleading
that seeks to introduce a new cause of action which has prescribed.
Thus to allow an introduction of a new cause of action
which would
have the effect of defeating a statutory limitation as to the time
limit within which an action is to be brought may
be refused on the
basis that it may prejudice the other party. See
Trans
African Insurance Company v Maluleka
1956 (2) SA 273
AD.
See
also
Evins
v Shield Insurance Company Limited 1980(2) SA 814 AD
which
has been followed in several other authorities. Corbett JA dealt with
the position of the introduction of the new cause of
action as
follows:
"The
concept
of
a cause
of
action is also
of
particular importance in regard to the prescription
of
claim for damages in delict.
If
a cause
of
action for such damages has accrued and the prescriptive period has
run, the claimant's right
of
action is prescribed and he is precluded by prescription from suing
for damages arising from the same cause
of
action even though the loss giving rise to the claim for damages
occurred or becomes manifest after the prescriptive period has
run
... It is different
if
the claim for damages flows from a distinct cause
of
action (which is not prescribed) or
if
the wrong is a continuing one which in
effect
gives rise to a series
of
rights
of
action arising from moment to moment ... Another aspect
of
the concept
of
a single cause
of
action in the realm
of
prescription relates to the amendment
of
the Plaintiffs claim as originally pleaded by him. Whether Plaintiff
seeks by way
of
amendment to augment his claim for damages, he will be precluded from
doing so by prescription
if
the new claim is based upon a new cause
of
action and the relevant prescriptive period has run, but not
if
it was part and parcel
of
the original cause
of
action and merely represents afresh quantification
of
the original claim or the addition
of
a further item
of
damages …"
In
a leading case with regard to amendments which introduce a new cause
of action the court stated as follows in
Sentracham
Limited v
Prinsloo
1997 (2)
SA
1
(a) at p. 15-16:
"Die
eintlike toets is om te bepaal
of
die eiser nog steeds dieselfde,
of
wesenlik dieselfde skuld probeer afdiving. Die skuld
of
vordering in reg 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."
The
law in the said case was followed in
CGU
Insurance Limited vs Rumdel Construction Pty. Ltd
2004 (2) SA 622
SCA
where
the following was stated at page 267 a-c:
"It
overlooks the broad meaning given by this court to the word "debt
in the Prescription Act" and in doing so in
effect
it created the debt with the Plaintiff's cause
of
action. The Defendant's argument is that by introducing a new
contract, the Plaintiff has introduced to a new cause
of
action. But it does not follow that by curing a defective cause
of
action by introducing the contract upon which it really relies, the
Plaintiff summons necessarily claims
of
different debt. Indeed, it is settled law that a summons which sets
out an expiable cause
of
action
can interrupt the run
of
prescription provided that the debt is cognisable in the summons and
is identifiable as substantially the same debt as the debt
in the
subsequent amendment."
19.
I now need to examine what the Plaintiff alleged in his original
summons. In paragraph 5.3 of his particulars of claim the
Plaintiff
stated as follows:
"In
the event
of
it being found that the premiums were not paid, then in that event
the Plaintiff pleads that it was an express, alternatively a
tacit,
further alternatively, an implied term
of
the agreement, set out in annexures Al to A3 read with annexure B
hereto;
(a)
That the Second Defendant would obtain comprehensive insurance for
Plaintiff in respect
of
the Plaintiffs vehicle as provided by the Standard Motor Vehicle
Insurance Policy issued by the First Defendant; and,
(b)
That the Second Defendant would submit to Plaintiffs bank the
necessary documents for the deduction from the Plaintiffs bank
account
of
the required premium."
In
paragraph 5.3 of his original particulars of claim the Plaintiff
stated as follows:
"Consequently
the non-payment
of
the premiums was exclusively caused by the Second Defendant's failure
to submit the required documents to the Plaintiff's bank."
He
continued and alleged in paragraph 5.1 of his particulars of claim
that:
"Second
Defendant's said failure was in breech
of
the terms
of
the said annexures Al to A3 and B as a result
of
which the Plaintiff suffered damages in the amount referred to in
paragraph 4.12 above."
20.
It would appear that in the Plaintiffs notice of amendment the same
contractual claim is also set out and the Plaintiff claimed
damages
as a consequence of the Second Defendant's breach of the contract
that was concluded between the Plaintiff and the Second
Defendant.
This appear quite clearly from the following paragraphs in the notice
of amendment:
20.1
That the Plaintiff acting in person and the Second Defendant
represented by Mrs. Minni Botha, alternatively by Chantelle Tate,
concluded a contract
of
mandate in that the Second Defendant was to obtain comprehensive
insurance in respect
of
the Plaintiffs motor vehicle, a Toyota Prado; that the Second
Defendant would be entitled to deduct the amount
of
the premium from the Plaintiffs account at Nedbank; that the Second
Defendant breached the contract
of
mandate, inter alia, by failing to obtain comprehensive insurance
cover; failing to deduct the amount
of
the premium from the Plaintiff's bank account at Nedbank and by
failing to advise the Plaintiff that the insurance cover had elapsed;
that as a result
of
the aforesaid breach the Plaintiff has suffered damages. The damages
are computed in two amounts being the sum
of
R209
081
.72
being
the reasonable cost
of
repairs to the Plaintiff's vehicle which is the amount that was
claimed in the original summons at the sum
of
R45 000.00 being the towing and storage costs
of
Proline.
22.
Accordingly
I do not agree with the view expressed by the Second Defendant's
counsel that the Plaintiffs contemplated amendment
amounted to an
introduction of a new cause of action or that the cause of action
that the Plaintiff wanted to introduce by way
of an amendment had
become prescribed by the provisions of the Prescription Act.
23.
I found accordingly that the Plaintiffs proposed amendment was
substantially the same as the original cause of action. The Plaintiff
was also of the view that the Plaintiff's contemplated amendment
would not in any way prejudice the Second Defendant. It is for
these
reasons that on 11 August 2009 I granted the order as set out
hereunder:
1)
The Plaintiffs application for leave to amend his Particulars of
Claim is hereby granted.
2)
The Plaintiff is hereby granted leave to amend his Particulars of
Claim in accordance with paragraphs 1,2 and 4 of his notice
of
amendment dated 21 July 2009.
3)
It is hereby ordered that costs should be in the cause.
4)
The trial of the matter is postponed hereby sine die.
PM
MABUSE
JUDGE
OF THE HIGH COURT