About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 57
|
|
Mpukane v Minister of Correctional Services (2556/2013) [2017] ZAECPEHC 57 (12 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case No.:
2556/2013
Date
Heard: 6 December 2017
Date Delivered:
12 December 2017
In
the matter between:
BULELANI
MPUKANE
Applicant/Plaintiff
and
MINISTER
OF CORRECTIONAL SERVICES
Respondent/Defendant
JUDGMENT
EKSTEEN
J:
[1]
At the
commencement of proceedings in this matter the plaintiff sought a
separation of issues. After hearing argument I made
an order in
terms of the provisions of Rule 33(4) of the Uniform Rules of Court
(the Rules). I indicated that I would provide
the reasons for
my ruling together with my judgment on the merits.
Notwithstanding the granting of the order counsel disagreed
in
respect of the liability for the costs of the application for the
separation of the issues. I reserved judgment in that
regard.
[2]
The trial
proceeded thereafter solely on the separated issue relating to the
liability of the defendant. After the luncheon
adjournment on
the first day of trial counsel on behalf of the defendant advised
that by virtue of instructions received during
the luncheon
adjournment the defendant was constrained to concede its liability to
the plaintiff. This prompted a dispute
in respect of the
appropriate order for the costs of the action in respect of the issue
of liability. I reserved my judgment
in that regard. The
present judgment addresses only these three issues.
Background
[3]
The
plaintiff is employed by Bosasa, a company providing catering
services for the St Albans Correctional Centre in Port Elizabeth
and
he is employed as a chef in the kitchen. Upon the completion of
his daily task he is required to pass through portions
of the
correctional centre in order to leave the premises. On 30
January 2013, after completion of his duties, he proceeded,
together
with an employee of the Department of Correctional Services, through
the area of the Medium B cells in order to leave
the premises.
Before leaving the Medium B area he was attacked by a prisoner and
stabbed with a sharp object.
[4]
The
plaintiff alleges that the said attack was caused solely by the
negligence of the defendant in that the Department of Correctional
Services had failed to provide the necessary security to ensure his
safe passage through the prison. The defendant denied
that it
had been negligent in any respect alleged and contended that it had
taken all reasonable precautions in this regard.
[5]
The
pleadings were duly closed and the matter was enrolled for trial on 9
September 2014. On 5 August 2014 the parties held
a pre-trial
conference in terms of the provisions of Rule 37 of the Rules and the
minutes of the pre-trial conference were duly
drawn and signed on
behalf of the parties. Two paragraphs of the minute are
material for purposes of the present debate.
Paragraphs 5 and 6
of the minute record:
“
5.
Transfer to another Court
5.1
The Plaintiff contends that the matter should not be transferred to
another
court and contends that action was properly instituted in the
High Court.
5.2
The Defendant disagrees and contends that the matter should have been
instituted in the Magistrate’s Court (or at least the Regional
Magistrate’s Court) and reserves the right to argue the
issue
relating to the incorrect forum at the conclusion of the trial in
relation to potential costs.
6.
Separation of Issues
The parties agree that there exists no
issue which can conveniently be decided separately as envisaged in
terms of Rule 33(4).”
[6]
Subsequent
to the conclusion of the pre-trial conference and on 9 September 2014
the matter was postponed
sine
die
.
It was again enrolled for hearing on 17 December 2015, however, by
notice dated 25 November 2015 the plaintiff unilaterally
removed the
matter from the roll. It was enrolled for the third time for 6
December 2017 when the matter was heard.
[7]
On 27
November 2017 the plaintiff launched an application seeking an order
that the issue of the liability of the defendant be separated
from
the remaining issues in the trial and be heard prior to any evidence
being tendered in respect of the issues relating to the
quantum of
the plaintiff’s damages. The application was opposed.
I shall revert below, to the extent necessary,
to the content of this
application.
The
separation
[8]
Rule 33(4)
of the Rules provides as follows:
“
(4)
If, in any pending action, it appears to the court
mero
motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately
from any other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit
and may order that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application
of any party make such
order unless it appears that the questions cannot conveniently be
decided separately.”
[9]
The
application for separation was opposed primarily on two grounds.
Firstly, the defendant contends that the plaintiff is
bound by the
agreement reached and recorded at the pre-trial conference and is not
entitled to resile therefrom. Secondly,
the defendant argues
that the application should be dismissed on the ground that it is
brought at the eleventh hour and, so it
is argued, is occasioned
solely by the plaintiff’s failure timeously to prepare for
trial.
[10]
In
respect of the first argument I have been referred to
Erasmus:
Superior Court Practice
(2
nd
ed) vol 2 where the author records:
“
To allow
a party, without special circumstances, to resile from an agreement
deliberately reached at a pre-trial conference would,
therefore, tend
to negate the object of the Rule which is to limit issues and to
curtail the scope of litigation.”
[11]
For
this reason too the author
Harms:
Civil Procedure in the Superior Courts
at para B37.3 records that:
“
A
party is not entitled to resile from an agreement deliberately
reached at a pre-trial conference or during the trial unless
(perhaps)
special circumstances are present”.
[12]
I
have had regard to these authorities and to the authorities relied
upon by these authors for these propositions. The authorities
which support these statements are all concerned with agreements
reached in respect of the issues in dispute in the trial.
They
do not relate to the procedure which the court is required to adopt
in the resolution of the disputes. On behalf of
the defendant
it is argued, however, that the principle must necessarily be the
same. I have given careful consideration
to this submission,
however, I consider that it is unsound. Rule 33(4) empowers the
court,
mero
motu,
to order a separation of issues where the separated issues may be
conveniently decided either before any evidence is led or separately
from any other question. This it may do irrespective of any
agreement which may have been reached by the parties. Where
the
issues may conveniently be decided before any evidence is led or
separately from any other question the court is enjoined to
grant
such an order on the application of any party to the proceedings.
The object of Rule 33(4), in a case such as this,
is to enable a
factual issue to be determined which can give direction to the
remainder of the case or to enable the plaintiff’s
claim to be
determined without the costs and delays of a full trial (see
Erasmus
supra
at D1-435).
[13]
In
the present instance, in the event that the plaintiff were
unsuccessful on the merits of his claim a separation of issues would
obviate the need for him to incur considerable expenses in obtaining
of medical experts to testify in respect of the quantum of
damages.
If, on the other hand, the plaintiff is successful on the merits,
experience has taught that the prospects of settlement
of the quantum
of damages without the need for further litigation are significantly
enhanced. The issue of liability (negligence
on the part of the
Department of Correctional Services) in this case is totally divorced
from any consideration material to the
quantum of damages. No
duplication of evidence could be foreseen if the merits were decided
separately from the quantum.
In these circumstances, it seems
to me, that the present case is indeed a matter where the issue of
liability can conveniently
be decided separately from any other
issues in dispute and that such a procedure is clearly expedient.
That being so the
court cannot be precluded from granting a
separation of issues simply because the parties agreed in 2014 that
there were no issues
which could conveniently be separated.
[14]
The
second argument relating to the lateness of the application and the
lack of preparation on the part of the plaintiff was not
persisted in
in resisting the separation of issues. Counsel on behalf of the
respondent argued, however, that it should be
considered in
determining the liability for costs incurred by the application for a
separation at the eleventh hour. For
these reasons I granted
the separation.
Costs
of the application for the separation of issues.
[15]
The
plaintiff sought an order that the costs occasioned by the
application for the separation of issues be costs in the cause.
The defendant, in response, reliant on the same two arguments raised
in respect of the merits of the application, contends that
it would
be appropriate in the circumstances of the present matter to order
that the plaintiff pay the costs occasioned by the
application for a
separation, notwithstanding that the application was granted.
[16]
It
is necessary to consider briefly the foundation of the plaintiff’s
claim and the reasons advanced for the application being
brought at
the last minute.
[17]
The
plaintiff issued summons in September 2013. In the particulars
of his claim it is alleged that as a result of the injuries
sustained
in the said assault he was referred to a psychologist for traumatic
counselling. He claims an amount of R2 450 000
under
three heads of damages. The claim was formulated as follows:
“
9.1
General Damages:
R1 000 000.00
;
This head of
damages is in respect of shock, pain and suffering, psychological
trauma, discomfort and loss of the amenities of life.
It is not
practical to appropriately separate claims to the individual heading
(
sic)
under
general damages.
9.2
Estimated future loss of earnings: R1 000 000.00;
This head of
damage is an estimate of the anticipated likely future loss of
earnings. Plaintiff was and is still employed
by Bosasa.
Plaintiff is currently suffering from post traumatic stress disorder
and is unable to fulfil his duties as he
used to. It is
anticipated that he will be forced to leave his current job as a
result of the psychological trauma he suffers
from. Medico
legal reports will be obtained to support this claim and shall be
furnished to the Defendant upon receipt thereof.
9.3
Estimated future medical expenses: R450 000.00.
This head of
damage is an estimate of the anticipated likely future medical
hospital treatment as a result of the injuries sustained.
Expert medical evidence will be sought to support this claim, and
upon receipt of same it will be furnished to the Defendant.”
[18]
As
recorded earlier a pre-trial conference was held on 5 August 2014.
In his founding affidavit in support of the application
for a
separation of issues the plaintiff’s attorney seeks to explain
the reasons for the plaintiff reneging from the agreement
concluded
at the pre-trial conference. He records that he had consulted
with the applicant prior to the conference and that
the applicant had
instructed his firm that his injuries had healed and that there was
no need for further treatment and/or examination
and assessment of
his person. He states that there was no suspicion at the time
of any sequelae as a result of the injuries
suffered and that his
firm therefore agreed that the merits and quantum should be decided
in one hearing. In consultation
in preparation for trial during
October 2017, however, the plaintiff instructed that “he still
experiences nightmares of
the incident and always feels not safe when
he enters the respondent’s premises” in order to go to
work. For
this reason a suspicion has now arisen that the
plaintiff has not fully recovered from his injuries and, accordingly,
an appointment
has been set up with a clinical psychologist for an
evaluation to be carried out in February 2018. It is
difficult
to reconcile the explanation advanced with the manner in
which the plaintiff’s case has been conducted.
[19]
On
15 October 2014, approximately two months after the pre-trial
conference the plaintiff amended the particulars of his claim.
Significantly the formulation of the quantum of his claim which I
have quoted earlier, remains unamended. The amended Particulars
of Claim persist in the claim for future medical expense based on the
allegation that the plaintiff “is currently suffering
from
post-traumatic stress disorder and is unable to fulfil his duties as
he used to”. On any reading of the particulars
of the
plaintiff’s claim as amended after the pre-trial conference the
thrust of the claim relates to psychological trauma
and the
persistence of post-traumatic stress disorder. Little can be
gleaned from the Particulars of Claim relating to the
severity of the
physical injuries sustained. A perusal of the file, however,
does reveal that no notice has been given in
terms of Rule 36(9) of
the Rules in respect of any medical as foreshadowed in paragraph 9 of
the Particulars of Claim.
[20]
On
a consideration of these issues I consider that there is merit in the
argument on behalf of the defendant that the application
for
separation and the plaintiff’s decision to renege from the
agreement concluded at the pre-trial conference is prompted
not by
any perception that the plaintiff had fully recovered, but by a lack
of preparation for trial. The explanation advanced
for the
change of stance affords no explanation for the formulation of the
quantum of damages in the amended Particulars of Claim
filed
subsequent to the pre-trial conference nor for the plaintiff’s
stance in the conference that the High Court was the
appropriate
forum for the trial to be conducted.
[21]
In
R
auff
v Standard Bank Properties
(a
division of
Standard
Bank
of
SA Ltd) and
Another
2002
(
6
)
SA
693
(WL
D)
Flemming DJP was concerned with the obligations of an attorney in
litigation and stated at 703H-704A:
“…
It is not
proper work if the separation of issues is attended to long after the
pleadings are closed.
[22.2] The
possibility of separation of issues is so important that an attorney
should as soon as pleadings have closed make a strategic
assessment
of the real trial needs of the case bearing in mind the duty to
eliminate avoidable delays and costs. The attorney
must apply himself
to an assessment of how the matter can proceed with maximum
expedition and without avoidable costs. There is
so much that can be
done and be gained by so using the attorney's insight that the
frequent excuse that discovery must first
be obtained is more
often than not an exaggeration of the importance of discovery and a
lame excuse for inactivity.”
[22]
These
sentiments were endorsed by Leach J in
Mayo
v The Minister of Safety & Security
[2007] JOL 20798
(SE). Leach J proceeded to add:
“
It
therefore makes no sense for the plaintiff to have delayed until the
doors of the court to launch this application, particularly
as the
defendant has presumably incurred its trial costs.”
These
remarks appear to me to be particularly apposite to the present
matter.
[23]
On
the other hand, however, as set out earlier herein, I do not think,
on a reading of Rule 33(4) that there was merit in the opposition
to
the application for the separation of issues. In the
circumstances it would be appropriate for each party to pay its own
costs in respect of the application for a separation. I make no
order in respect thereof.
Costs
of the trial in respect of liability
[24]
By
virtue of the concession of the merits the plaintiff seeks an order
that the defendant pay the costs occasioned by the trial
in respect
of the separated issue of liability. On behalf of the
defendant, however, it is argued that plaintiff sustained
only
superficial injuries which will justify an award of damages which
would fall within the jurisdiction on the Magistrates’
Court
and the costs of the trial should therefore be reserved for decision
by the court called upon to determine the quantum of
the plaintiff’s
damages.
[25]
It
has been held that where a plaintiff has been successful in a trial
in the High Court which has proceeded on a separated issue
the costs
occasioned by the trial, irrespective of the ultimate outcome in
respect of the remaining issues, are occasioned by the
position taken
by the defendant and that the defendant should accordingly bear the
costs of that trial. (
See
Mkhwanazi v Van der Walt
[1995] ZASCA 4
;
1995 (4) SA 589
(AD) at 595F.) This is the rule which would
generally be followed where a trial court exercises its discretion in
respect
of the costs occasioned by a trial on a separated issue.
[26]
In
the present matter, however, the defendant has, at the pre-trial
conference, expressly reserved its right to argue at the conclusion
of the trial that the summons ought to have been issued in the
Magistrates’ Court and that costs should be limited to the
appropriate Magistrates’ Court scale. I cannot at this
stage assess the probable quantum of damages which may eventually
be
awarded. I have recorded earlier that there is little
indication in the Particulars of Claim as to the probable severity
of
the physical injuries sustained by the plaintiff and that no notice
has been given in terms of rule 36(9) of the Rules of any
medical
evidence which will be presented. Before me, however, the
plaintiff has testified that he was not hospitalised as
a result of
his injuries. Although he was never admitted to hospital, he
did receive treatment for his injuries on the day
of the incident at
the St George’s Hospital. These averments, coupled with
his alleged assertion to his attorney in
August 2014 that he had made
a full recovery from all his injuries give rise, in my view, to the
real possibility that the quantum
of damages which may be awarded may
fall within the jurisdiction of the Magistrates’ Court.
[27]
In
these circumstances I consider that there is merit in the submission
that the costs occasioned by the trial on the merits should
be
reserved for adjudication by the court called upon to determine the
quantum of the plaintiff’s damages.
[28]
In
the result:
1.
It is ordered that the defendant is liable to the plaintiff for such
damages
as the plaintiff is able to prove arise from the assault upon
the him on 30 January 2013 at the St Albans Correctional Centre;
and
2.
The costs occasioned by the trial in respect of the separated issue
of liability
are reserved.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant/Plaintiff:
Adv Poswa instructed by Mgweshe Ngqeleni Inc
c/o Ketse Nonkwelo Inc,
Port Elizabeth
For
Respondent/Defendant:
Adv Beyleveld SC instructed by State Attorney, Port
Elizabeth