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[2023] ZAECELLC 9
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Ngqeleni v Outsurance (Pty) Ltd (933/2022) [2023] ZAECELLC 9 (4 May 2023)
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
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. 933/2022
NOT
REPORTABLE
In
the matter between:
MBUYISELI
NGQELENI
Applicant/Plaintiff
and
OUTSURANCE
(PTY) LTD (SIC)
Respondent/Defendant
JUDGMENT
IN RESPECT OF INTERLOCUTORY
APPLICATION
FOR
LEAVE TO AMEND
HARTLE
J
[1]
The defendant objected to the
plaintiff’s proposed notice of intention to amend in which he
seeks the leave of this court
to delete the
word
“
OUTSURANCE” where it appears “in”
the face of the summons and to replace it with the moniker
“OUTsurance
Insurance Company Limited with Registration Number
1[…]”.
[2]
He further wishes in the paragraph below, also “in”
the face of the summons, to record the following description of the
entity he alleges he contracted with for purposes of placing short
term insurance and who is at the receiving end of his claim
for
breach of contract in the main action:
“
INFORM OUTsurance
Company Limited, an insurance company with Registration Numbers
1[...] an insurance company registerd in terms
of the insurance and
company laws of the Republic of South Africa with its registerd
office at number 1[...] E[...] Rd, Zwartkop
Extention [...],
Centurion in the Gauteng Province and carrying on business at JRE
House, C[...] Main Road 1[...] Avenue, Walmer,
Gqeberha in the
Eastern Cape Province.” (Sic)
[1]
[3]
In similar vein he wishes to replace the wrong name of
the entity allegedly liable to him for damages with the correct
appellation
where it is referred to in paragraph 2 of his particulars
of claim and to add the same description that pertains on the face of
the summons in order to properly describe the entity being sued, as
follows:
“
The Defendant is
OUTsurance Company Limited, an insurance company with Registration
Numbers 1[...] an insurance company registered
in terms of the
insurance and company laws of the Republic of South Africa with its
registerd office at number 1[...] E[...] Rd,
Zwartkop Extention
[...], Centurion in the Gauteng Province and carrying on business at
JRE House, C[...] Main Road 1[...] Avenue,
Walmer, Gqeberha in the
Eastern Cape Province.” (Sic)
[4]
The appellation of the entity in the plaintiff’s
unamended pleadings is “OUTSURANCE (Pty) Ltd” loosely
described
on the face of the summons and in the existing particulars
of claim as “an insurance company incorporated in terms of the
insurance and company laws of the Republic of South Africa” of
the same addresses as referred to in the hoped for amendment,
which
could be a reference to both a public or a private company.
[5]
As a starting point to ascertain where the plaintiff is
headed with his process, one needs to consider his present pleadings
(in
unamended form) in their proper context. The crux of his
claim is that he entered into a short-term insurance contract with
the cited defendant acting as “an insurance company” to
indemnify him in respect of certain defined events. An event
contemplated in the policy insured against occurred, but the
defendant failed to compensate him in terms thereof. He alleges that
this refusal constitutes a breach of contract and claims damages for
the breach.
[6]
The policy document itself that is attached to the
plaintiff’s particulars of claim in its preface describes the
policy as
including the policy document together with a schedule, any
written correspondence and verbal agreements which it states forms
the basis of the contract between him as “the policyholder
”
and “us”, but the “us”
is nowhere described therein. Indeed one has to read the covering
letter, summary
of the policy, and the defendant’s statutory
Disclosure Notice to Policyholders, to gain an understanding of who
the “OUTsurance”
is whose logo is reflected on the face
of the personal policy document and who claims to be the accredited
entity doing business
with the plaintiff, at least as is reflected in
the documentation.
[7]
That it is a licenced insurer and
financial services provider, and what its registration particulars
are, are only read in the ancillary
documentation. It is also
relevant to mention that the plaintiff in his particulars of claim
relates about the entity it
seeks to hold responsible that the
contract it concluded was with an insurer that he contracted with
over the telephone.
[8]
All of this is relevant to point out
that the plaintiff in my view intended to cite the entity with whom
he contracted as a registered
insurance provider but got the
appellation wrong, more so in the heading, causing this whole
unfortunate fiasco.
[9]
Shortly after the summons was served
on “OUTsurance” at its address in Gqeberha, Messrs Van
Breda & Herbst Inc.,
attorneys of Pretoria, filed a notice of
intention to defend on behalf of “the Defendant”,
recording the latter’s
address as being at 1[...] E[...] Rd,
S[...], Centurion, Gauteng. This address corresponds to Outsurance’s
official address
referred to in its Disclosure Notice alluded to
above.
[10]
What followed next was an
exception filed by “the defendant” in which it levelled
numerous objections against the plaintiff’s
summons and
particulars of claim. As the plaintiff astutely observes in the
present application, the defendant would have no interest
in raising
these concerns, except in the person of Outsurance Insurance Company
Limited.
[11]
It is perhaps apposite to set out in
full it's specific complaint in the exception regarding the issue of
the appellation and description
of the defendant as it bears upon the
present application:
“
2.
The
plaintiff has instituted action against a non-existent entity,
alternatively instituted action against the incorrect Defendant,
based on the following:
2.1
In the header of the Summons and Particulars of Claim the Defendant
is cited as “
OUTSURANCE (Pty) Ltd”
.
2.2
On the face of the Summons an in paragraph 2 of the Particulars of
Claim the Defendant is cited as:
“
Outsurance,
an insurance company incorporated in terms of the insurance and
company law of the Republic of South Africa […].”
2.3
In the footer of the Particulars of Claim, same is addressed to
“
Outsurance”.
2.4
It is unclear whether the action is instituted against “
Outsurance”
or “
Outsurance (Pty) Ltd.”
2.5
In addition and notwithstanding the above, the Companies and
Intellectual Property Commission has records
of the following
companies which contain the words “Outsurance” in their
names, but does not have record of any registered
entity as cited by
the plaintiff:
2.5.1 Outsurance
Holdings Limited (1[…]);
2.5.2
Outsurance Insurance Company Limited (1[…]);
2.5.3
Outsurance International Holdings (Pty) Ltd (2[…]);
2.5.4
Outsurance Life Insurance Company Limited (2[…]);
2.5.5
Outsurance Properties (Pty) Ltd (2[…]);
2.5.6
Outsurance Shared Services (Pty) Ltd (2[…]).
2.6
The Plaintiff has instituted action against one of two entities-
being “
Outsurance (Pty) Ltd”
or “
Outsurance”
-
but not one such entity exists. In the alternative and in the event
that one or both such entities exist, the Summons was served
on the
incorrect entity which has no
nexus
with the plaintiff.
2.7
The plaintiff cannot sue and obtain judgement against a non-existent,
alternatively incorrect entity.
2.8
If it was the intention of the Plaintiff to join any of the entities
as listed in paragraphs 2.5.I.
to 2.5.6. above, then the Plaintiff
must institute new proceedings against such entity or amend its
papers in this action to reflect
the correct defendant, as allowed
for by law.
2.9
In the premise, the Plaintiffs allegations are insufficient to
sustain a cause of action and are too
vague and embarrassing and
lacks sufficient particularity to enable the defendant to reply
thereto.”
[12]
Prompted by the defendant’s
exception, the plaintiff says he filed the proposed notice of
intention to amend as referred to
above to “provide a
consistent reference to the defendant” he had in mind, and
indeed to clarify which of the listed
companies in paragraph 2.5 of
its exception he is in fact suing. There is no question that it is
the second one listed in sub-paragraph
2.5, which has a clear and in
my view obvious nexus to the plaintiff.
[13]
This
was however met with an objection by the defendant going to both
process and effect. From the point of view of process the
defendant
complained that the proposed amendment is tantamount to an irregular
step. In its opinion the plaintiff seeks to circumvent
the provisions
of uniform Rule 10 and 41 respectively: the first rule because he
purports by the proposed amendment to substitute
the defendant with
another party which it says cannot be countenanced under the auspices
of rule 28,
[2]
and under the
latter rule because the plaintiff ought to be, so it suggests,
withdrawing the current action against the defendant
as originally
named and described, and instituting a fresh action against the “new”
defendant.
[14]
As for the perceived prejudicial
effect, the defendant submits in its notice of objection that the
proposed amendment, if allowed,
would render the summons and
particulars of claim vague and embarrassing because the defendant’s
identity “will remain
uncertain”.
In
this regard the defendant recorded that:
“
2.1
The Defendant is cited as “OUTSURANCE (PTY) LTD” in
header of the Summons and Particulars of Claim,
which citation
indicates that the defendant is a private company.
2.2
The Plaintiff is not of the intention to amend the headers, but only
intends amending the Defendant’s
citation on the face of the
Summons and Particular of Claim to that of a public company.
2.3
In the event the Plaintiff's intended amendment succeeds, the
Defendant will be cited in the headers
as a private company, but in
the body it will be cited as a public company.
2.4
The aforesaid will result in the Summons and Particulars of Claim
being excipiable due to it being vague
and embarrassing.”
[15]
The
plaintiff missed the defendant’s slight directed at him about
the disconnect between the headers and the intended allegation
that
the company he maintains is liable is a public company, but
still
the underlying objection to the effect that a non-existing or
incorrect party had been sued loomed large and t
he
plaintiff was thus obliged to bring the present application.
[3]
[16]
The defendant heralded in its notice
of intention to oppose that it intended to raise points of law at the
hearing of the matter,
this despite its elaborate premise for the
supposed prejudice occasioned to it that would require some
explanation on affidavit
in my view, especially concerning which
company is concerned with what business under its group, all
obviously using the same essential
moniker of “Outsurance”.
[17]
Be
that as it may, in heads of argument filed on its behalf, its
attorneys repeated their contention that their client would suffer
severe prejudice if the amendment were to be permitted, given that
the plaintiff had purportedly sued the wrong party. According
to them the plaintiff could not succeed in his endeavour to amend as
the current appellation could not be deemed a mere “misnomer”
of OUTsurance Insurance Company Ltd.
[4]
[18]
Ironically it was not disclosed from
whose point of departure the objections to the original amendments
were being raised, but if
one reads the paragraph under the
defendant’s heads of argument dealing with prejudice, it is
clear that it is OUTsurance
Insurance Company Limited whose prejudice
is contended for on the back of the primary premise that the
non-existing or wrong party
was instead served. This is
self-evident from the submission that:
“
It
is respectfully submitted that Outsurance Insurance Company Limited
will be prejudiced by the amendment, as it will become a
party to an
action without proper service of a Summons and without any knowledge
of the litigation history. Such prejudice
cannot be cured by an
appropriate costs order and offends procedural justice.”
[5]
[19]
When the matter was called Mr. Kemp
placed on record that he was appearing on behalf of the wrong party,
namely the imagined private
company, despite the suggestion that such
a party does not exist. I found this confusing especially
having regard to the
defendant’s submission in paragraph 11 of
its heads of argument that:
“
The
contention of a misnomer can only succeed if the intended party
was
either Outsurance Properties (Pty) Limited or Outsurance Shared
Services (Pty) Ltd,
as
the latter are the same type of entity as the cited Respondent, to
wit, a private company and their names are strikingly similar.”
(Emphasis added.)
[20]
Mr. Kemp was certain that it was
“Outsurance (Pty) Ltd”, whose interests he intended to
assert before me, which is neither
one of the two private companies
referenced in paragraph 11 of the defendant’s heads of
argument. He further purported
to persuade the court that it
was this party that would be (or had been) prejudiced and that the
proper course of action would
have been for the plaintiff to withdraw
the action against
his
client
, that is the
wrong entity, and to tender
its
costs.
[21]
To my mind the objection to the
proposed amendment is nothing more than an opportunistic attempt to
frustrate the plaintiff’s
claim and should not be
countenanced. What appears is that OUTsurance Insurance Company
Limited has been spearheading the
opposition to the present
application under the guise of one or other of Outsurance’s
similar monikers (or in between the
two private companies forming
part of its group) as suits its convenience and changing the basis
for its objection as the tide
goes.
[22]
This is however a classic case of a
misnomer due to less than fastidious pleading, which to my mind must
be corrected to do proper
justice between the parties.
[23]
In my opinion the proposed amendment
causes Outsurance Insurance Company Limited no prejudice. The
company was served, and
although the header may have momentarily
occasioned some doubt as to which “Outsurance” the action
is concerned with,
any person reading the particulars of claim in
context would have understood exactly who the real McCoy is.
Further and in
any event, the absence in the unamended particulars of
claim of a reference one way or the other to a public or a private
company
was not going to deflect attention away from the fact that
the plaintiff clearly on the face of it contracted for his insurance
requirements with Outsurance Insurance Company Limited and intended
to cite it as the responsible defendant in the main action.
[24]
Even though the plaintiff should have
taken more care when drafting his founding pleadings, the objection
by the defendant to the
proposed amendment was entirely unnecessary
and in my view a waste of this court’s resources as well.
I am therefore
inclined to make a punitive costs award against
Outsurance Insurance Company Limited to mark this court’s
displeasure at
the manner in which it has conducted itself in the
proceedings.
[25]
In the result I make the following
order:
1.
The plaintiff is granted leave to
amend his particulars of claim on the basis proposed in his notice of
intention to amend dated
7 June 2022, provided that the obvious
grammatical, typographical and punctuation errors must be properly
reflected in the pleadings
as finally amended.
2.
Every reference in the pleadings to
the “defendant” henceforth shall be a reference to
OUTsurance Insurance Company
Limited
with
Registration Number 1[…].
3.
OUTsurance Insurance Company Limited
with Registration Number 1[...]
is
liable to pay the costs of the application on the scale of attorney
and client.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF APPLICATION: 26 April 2023
DATE
OF JUDGMENT : 4 May 2023
Appearances:
For
the Plaintiff/Applicant:
Ms
Zito
instructed
by
Mgweshe
Ngqeleni Inc.
East
London
(ref.
Mr. Ngqeleni)
For
the Defendant/Respondent:
Mr.
L Kemp of Van Breda & Van Herbst Inc.
c/o
Andre Schoombee Attrneys,
East
London
(ref.
Mr. Kemp)
[1]
The
plaintiff has not been fastidious in amending. I have
reflected above the proposed amendment exactly as it was framed
in
his notice of intention to amend. In the header even, a reader
is referred to his “NOTICE OF INTENTION TO AMMEND”
(
sic
).
Careful punctuation and attention to detail, especially for a
litigant on the back foot trying to amend, should not be
compromised. One would have expected the plaintiff to be more
careful the second time around. He ought to have been
aware as
well that the biggest sting concerned his mistaken labelling of the
defendant as a private company, yet he only asked
for the
appellation “OUTSURANCE” to be substituted on the face
of the summons.
[2]
Instead,
so says the defendant, he has to follow the procedure provided for
in rule 10 to join another defendant to the action.
[3]
This
again goes to the sloppiness with which the notice of intention to
amend was prepared. To my mind it is obvious that
an amendment
of a name must be carried through on all the pleadings. It
hardly needs asking for, in my view, but a litigant
already on the
back foot with an opponent taking a technical objection needs to be
especially vigilant when he is trying to make
a clean sweep of his
mess.
[4]
A
court would be more inclined to grant an amendment which seeks to
correct a misnomer, than in a case where it seeks to introduce
a new
party.
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd intervening)
1994
(2) SA 363 (C).
[5]
At
par 13 of the defendant’s heads of argument.