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[2019] ZAECPEHC 8
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Elman Naidoo N.O v Minister of Safety and Security and Another (1421/2011) [2019] ZAECPEHC 8 (12 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
REPORTABLE
Case No.:
1421/2011
Date
Heard: 15 February 2019
Date
Delivered: 12 March 2019
In
the matter between
ELMAN
NAIDOO N O
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
First Defendant
INSPECTOR
PATRICK GROOTMAN
Second Defendant
JUDGMENT
Litis
contestatio – Rule 29(1)(b) read with a Rule 25(1) - claim for
non-patrimonial damages – transmissibility of claim
to estate
of the deceased plaintiff – effect of further amendment after
the death of the plaintiff on transmissibility of
claim
GAJJAR
AJ:
Introduction
[1]
“
What’s
done cannot be undone
.”
[1]
The import of these words find application in the issue which I have
to decide upon, namely whether or not a claim for non-patrimonial
(general) damages arising from an alleged unlawful detention, is
transmissible on the death of a plaintiff to his/her estate.
In
considering this question, the legal concept
litis
contestatio
[2]
plays a
determinative role.
[2]
The plaintiff is Elman Naidoo NO, who sues in his capacity as
executor
of the late Mahlubititus Naidoo, the deceased. The
plaintiff’s claim is in respect of general damages and
contemelia
for the alleged unlawful detention of the deceased from 4
July 2008 to 23 February 2009.
[3]
The claim is against the Minister of Police, as the first defendant,
and
Inspector Patrick Grootboom, as the second defendant. Prior
to the commencement of the trial, I
mero motu
raised whether
or not the deceased’s claim against the defendants, which is
premised on the
actio iniuriarum
, was transmitted upon his
death to his estate. Upon raising this issue, the parties
agreed to separate the determination
of the plaintiff’s
locus
standi
from all the remaining pleaded issues. I accordingly
issued an order, by agreement, in terms of Rule 33(4), ordering
such separation in the following terms:
“
1.
That the issues rising from paragraph 1 of the plaintiff’s
Amended Particulars
of Claim, read with paragraph 1 of the
Defendant’s Amended Plea dated 14 February 2019 is separated
from all remaining issues;
2.
That such remaining issues, being those arising from paragraph 2, 3,
4, 5, 6,
7, 8, 9 and 10 of the plaintiff’s Amended Particulars
of Claim, read with paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 the
Defendant’s
Amended Plea, be stayed for later determination, if
required.”
[4]
The parties also agreed to a statement of facts in the form of a
special
case pursuant to Rule 33(1) for adjudication. The
agreed facts between the parties are as follows:
4.1 The
plaintiff is ELMAN NAIDOO N.O. an adult male currently residing at 71
Mdledle Street, Uitenhage in his
capacity as executor of the
deceased.
4.2 The
defendants are as cited in the plaintiff’s Amended Particulars
of Claim dated 14 February 2019.
4.3 The
deceased instituted action on 24 May 2011 by way of summons under
case number 1421/2011.
4.4 The
defendants filed their plea on 5 December 2011 in respect of the
plaintiff’s particulars of claim
dated 16 May 2011.
[3]
4.5 On
8 February 2012, the deceased filed amended particulars of claim.
4.6 On
10 July 2017, the plaintiff filed further amended particulars of
claim.
4.7 The
defendants filed their amended plea on 1 February 2019 to the
plaintiff’s further amended particulars
of claim.
4.8 The
deceased passed away on 8 July 2015.
4.9 The
plaintiff was appointed as the duly appointed representative of the
Master in the deceased’s estate
on 13 October 2016.
4.10 The deceased
was substituted by the plaintiff by way of a Notice in terms of Rule
28 dated 19 June 2017.
4.11 The parties
required adjudication on two questions. Firstly, on whether the
deceased’s claim for general
damages was abated when he passed
away, or was his claim transmitted to his estate or heirs.
Secondly, whether the pleadings
had closed at the time of the
deceased’s death, or alternatively, that the plaintiff reopened
the pleadings by filing the
amended particulars of claim on 10 July
2017.
4.12 The deceased’s
only claim against the defendants was for general damages suffered as
a result of the deprivation
of his liberty while detained from 4 July
2008 to 23 February 2009, the cause of action is the
actio
iniuriarum
/ non-patrimonial claim.
4.13 The plaintiff
contended that the deceased’s claim for general damages had
passed to his estate upon his demise.
As a result, it was
submitted that is competent for the plaintiff to pursue this claim on
behalf of the estate.
4.14 The defendants
argued that the deceased’s claim for general damages was abated
upon his demise and is not transmissible
to his heirs or estate.
In the alternative it was submitted that at the time of the
deceased’s death on 8 July 2015
the pleadings had not closed or
alternatively the pleadings were re-opened by the plaintiff when he
filed the amended particulars
of claim on 10 July 2017. The
defendants only pleaded to the aforesaid amended particulars of claim
on 1 February 2019.
Litis
contestatio
and its effect on the plaintiff’s claim
[5]
Litis
contestatio
is synonymous with the close of pleadings when the issue is
crystallised and joined
[4]
.
The effect of
litis
contestatio
is to freeze the plaintiff’s rights as at that moment.
[5]
[6]
Rule 29 deals with,
inter alia,
with close of pleadings.
In terms of Rule 29(1) pleadings are considered closed if,
respectively:
6.1
Either party has joined issue without alleging any other new matter,
and without adding
any further pleading;
6.2
The last day for filing of the replication of subsequent pleading has
elapsed and it has
not been filed;
6.3
The parties agree in writing that the pleadings are closed and such
agreement is filed with
the Registrar; or
6.4
The parties are unable to agree as to the close of pleadings, and the
court upon the application
of a party declares them closed.
[7]
The
Appellate Division in N
gubane
[6]
endorsed the court
a
quo
’s
reasoning in holding that a claim for pain and suffering in our law
is neither transmissible on the death of the injured
person
before
litis
contestatio
nor is it capable of being transferred by cession, at any rate
before
the pleadings have closed. This was an endorsement of an
earlier decision in the matter of
Hoffa
NO v SA Mutual and Fire General Co Ltd
[7]
where it was concluded “
[t]hat
in our law the claim by the injured party in respect of pain and
suffering, and the loss of the amenities of life …does
not
pass to the injured party’s estate
”.
[8]
Significantly,
the court in
Hoffa
did not deal with the question of transmissibility of such a claim
where
litis
contestatio
had taken place. In
Milner
NO
[8]
the Appellate Division was invited to enquire into whether or not the
decision in
Jankowik
and
Another v Parity Insurance Co (Pty) Ltd
[9]
,
where
it was held that a claim for general damages was transmitted to the
deceased’s estate provided that
litis
contestatio
had been reached at the time of the deceased’s death, was
correctly decided. The court declined the invitation and
without enquiring into
Jankowik
it was assumed that it was correctly found that a claim for
non-patrimonial loss suffered by a deceased plaintiff is transmitted
to his estate if
litis
contestatio
had taken place prior to his death. In
Road
Accident Fund v
Mtati
[10]
the Supreme Court of Appeal endorsed the decision in
Jankowik.
Thus, if
litis
contestatio
had been reached at the time of the death of the deceased, then his
claim for general damages had transmitted to his estate.
On
that basis, in
Jansen
van Vuuren NNO v Kruger
[11]
the
court, on appeal, dealt with a claim where the plaintiff, claiming
general damages for defamation, had died during the trial
and was
thereafter substituted by the executors of his estate. On
appeal, the court
a
quo
’s
dismissal of the claim for general damages was overruled and the
plaintiffs’, acting on behalf of the estate in their
representative capacities, were awarded general damages.
[9]
In
Jankowik
it was held that
litis
contestatio
does not affect the cause of action. It merely transmits the
claim or the lability to the estate of the party dying
after
litis
contestatio
has been reached.
[12]
[10]
Thus the
critical question to be determined in the present matter is whether
or not at the time of the death of the deceased
litis
contestatio
had been reached. It will be recalled from the agreed facts
between the parties that the deceased instituted action on 24
May
2011 and that the defendants’ plea in respect thereof was filed
on 5 December 2011. The time for filing a replication
in terms of
Rule 25(1) lapsed on 28 December 2011. Accordingly, in terms of
Rule 29(1)(b) the pleadings closed on 29 December
2011. In
other words,
litis
contestatio
was reached. In terms of the
Jankowik,
Milne NO and Mtati
judgments,
the deceased’s rights became frozen
[13]
at that moment. Accordingly, at the time of the deceased’s
death on 8 July 2015 his claim for general damages against
the
defendants was transmitted to his estate.
[11]
As set out above, there were two amendments to the particulars of
claim, the first on 8
February 2012 which predated the deceased’s
death and the second on 10 July 2017 after the deceased’s
death.
The defendants’ amended plea to the last mentioned
amendment was filed on 1 February 2019.
[12]
Mr
Gqamana
SC,
for
the defendants, argued that as the plaintiff had amended his
particulars of claim in 2017, being the date after the death of
the
deceased, that event had reopened the pleadings and as such rendered
the transmission of the claim for general damages not
transmissible
to the deceased’s estate. In support of this submission
reliance was placed on the judgment of the Supreme
Court of Appeal in
the matter of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[14]
where the following was stated:
“
[15]
The answer is that when pleadings are re-opened by amendment or the
issues between the
parties altered informally, the initial situation
of litis contestatio falls away and is only restored once the issues
have once
more been defined in the pleadings or in some other less
formal manner. That is consistent with the circumstances in which the
notion of litis contestatio was conceived. In Roman law, once this
stage of proceedings was reached, a new obligation came into
existence between the parties, to abide the result of the
adjudication of their case.
…
When the parties
decide to add to or alter the issues they are submitting to
adjudication, then the ‘agreement’ in regard
to those
issues is altered and the consequences of their prior arrangement are
altered accordingly. Accordingly, when in this case
they chose to
reformulate the issues at the commencement of the trial, a fresh
situation of litis contestatio arose and the rights
of the Fund as
plaintiff were fixed afresh on the basis of the facts prevailing at
that stage.”
[13]
Accordingly, the defendant further submitted that by further amending
the pleadings on
10 July 2017,
litis contestatio
had not been
reached and it follows that the claim for general damages was not
transmissible to the deceased’s estate.
[14]
In reply,
Mr
le
Roux
,
on behalf of the plaintiff, contended that the amendment to the
defendants’ plea followed a notice of intention to amend
the
plaintiff’s particulars of claim which indicates that amendment
to the particulars of claim were sought when the pleadings
were
closed. Reliance for this submission was placed on the judgment
of
Potgieter
v Sustien
[15]
where the court held that Rule 29 did not merely create a rebuttable
presumption that the pleadings were closed, but rather constituted
a
substantive formal rule and, when a pleading was filed or amended
after the close of the pleadings in terms of the Rule, it did
not
alter the fact that the pleadings were closed. The submission
was further that the amendments which the plaintiff sought
were
affected with the defendants’ consent in that no objection
thereto was filed. It was also submitted on behalf
of the
plaintiff that when the particulars of claim were amended in 2017 the
claim for general damages
had
already
been transmitted to him in his representative capacity in 2016 when
he was so appointed.
[15]
At the time
the deceased died, the pleadings had already been closed, i.e. prior
to the 10 July 2017 amendment. In other words
litis
contestatio
had been reached with the result that the deceased’s claim was
transmitted to his estate. That being done, it could not have
subsequently, in my view, been undone by the 2017 amendment.
Stated otherwise, the claim had accrued to the deceased’s
estate at the time of his death as the pleadings had by then closed
and the issues crystallised. The deceased’s cause of
action
remained unaltered by the 2017 amendment and the scope of the
litigation was not altered thereby. The court in
KS
v MS
[16]
interpreted the
Endumeni
judgment as follows with regard to the effect of an amendment after
litis
contestatio
:
‘
Nor
do I understand the judgment of Wallis JA to mean that any amendment,
however, immaterial or minor it may be, would result in
fresh litis
contestatio. It is when the parties “add to or alter the
issues they are submitting to adjudication”,
by amendment or
agreement, that “a new obligation” comes into existence
and a fresh situation of litis contestatio
arises.’
[17]
[16]
I align myself with the views expressed by the court in
KS v MS.
Thus, the deceased’s claim in the instant matter remained
unaltered by the 2017 amendment, the cause of action against the
defendants remaining the same.
Conclusion
[17]
In considering the issues which have to be determined, I have reached
the following conclusions:
17.1
the deceased’s claim against the defendants had not abated when
he passed away on 8 July 2015 as the
pleadings in terms of Rule
29(1)(b) elapsed on 28 December 2011;
17.2 at
the time of the deceased’s death
litis contestatio
had
been reached;
17.3
the amendment of the particulars of claim on 10 July 2017 did not
have the effect of re-opening the pleadings
as the deceased’s
cause of action remained unchanged and the further amendment did not
undo a claim which had already been
transmitted to the deceased’s
estate.
[18]
[18]
In the result, I make the following order:
18.1
The plaintiff is entitled to pursue the claim in his representative
capacity for general
damages on behalf of the deceased;
18.2
The costs occasioned by the determination of the special case shall
be borne by the first defendant.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv H le Roux instructed by Lessing
Heyns Keyter & Van der
Bank Inc, Port Elizabeth
For
Defendants: Adv N W Gqamana SC
instructed by the State Attorney,
Port Elizabeth
[1]
These are the words uttered by Lady Macbeth in Shakespeare’s
Macbeth
,
Act 5 Scene 1, 63-4, following the murder of King Duncan
[2]
The stage in action proceedings when pleadings are said to be closed
and when the issue is crystallised and joined:
Milne
NO v Shield Insurance Co Ltd
1969 (3) SA 352
(A) at 358C;
Government
of the RSA v Ngubane
1972 (2) SA 601
(A) at 608D
[3]
The period for filing a replication in terms of Rule 25(1) would
have been 28 December 2011
[4]
See
Milner
NO
,
supra at 385C
[5]
See
Potgieter
v Rondalia Assurance Co Ltd
1970 (1) SA 705
(N) at 710A;
Ngubane
,
supra at 608D-E
[6]
Supra at 608H
[7]
1965 (2) SA 994
(C) at 955C-D
[8]
Supra 358B
[9]
1963 (2) SA 286
(W) at 290D-E
[10]
2005
(6) SA 215
(SCA) at para [39]
[11]
1993(4) SA 942 (A)
[12]
See
Jankowik
,
supra at 290D-E
[13]
See
Van
Rensburg v Condoprops 42 (Pty) Ltd
2009 (6) SA 539
(E) at 547D
[14]
2012 (4) SA 593
(SCA) at para [12]
[15]
1990 (2) SA 15 (T)
[16]
2016 (1) SA 64 (KZD)
[17]
At 69C-D
[18]
See
Fisher
v Natal Rubber Compounders (Pty) Ltd
2016 (5) SA 477
(SCA) at para [9] where it was held that despite a
cession of a claim and a subsequent amendment thereto the same claim
was been
pursued throughout.