Brief Summary

Civil Procedure — Counterclaim — Late institution of counterclaim — MEC for Public Works seeking leave to file counterclaim against deceased's estate and heirs after being sued for loss of support due to alleged negligence — Respondents opposing on grounds of prescription and lack of reasonable explanation for delay — Court considering the timeline of events, including delays caused by COVID-19 and lack of information from Respondents — MEC only becoming aware of necessary parties and potential claims after receiving relevant documents — Leave granted for late filing of counterclaim as the MEC had shown reasonable grounds for the delay.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings concerned an interlocutory application for procedural indulgences in ongoing High Court litigation. The applicant was the Member of the Executive Council for Public Works, Roads and Transport, Mpumalanga Province (the MEC), cited in the main action as the defendant. The first to third respondents were the plaintiffs in the main action, namely D.B (widow of the deceased) and her children T.B and B.B. The fourth respondent, Barry Kalmin N.O., was cited in his capacity as the executor of the deceased estate.

The MEC applied for leave to introduce a counterclaim late under Uniform Rule of Court 24(1), and also sought leave (insofar as necessary) to institute a conditional counterclaim contemplated by section 2(4) of the Apportionment of Damages Act 34 of 1956. In addition, the MEC sought leave to serve a third party notice out of time under Uniform Rule 13, in order to join the executor to the main action as a third party.

The application arose in the context of a pending loss of support claim instituted by the widow and children following a fatal motorbike accident. The main dispute in the action concerned whether the MEC was liable (vicariously, through alleged failure to maintain a road), and whether the deceased was wholly or partly at fault such that issues of contribution/apportionment and possible recovery against the estate or heirs might arise.

Material Facts

On 14 May 2016, the deceased was riding a motorbike on the R553 road near Graskop, Mpumalanga, when the motorbike allegedly hit a pothole, causing the deceased to lose control and suffer fatal injuries. The respondents alleged that the accident and death were caused by the MEC’s negligent and wrongful failure to maintain the road.

The respondents issued summons on 8 May 2017 claiming loss of support. The MEC defended the action and pleaded, in substance, that the deceased was responsible, alternatively partly negligent, in causing the accident. On that basis, the MEC indicated an intention to seek a contribution from the deceased estate (through the executor) as a joint wrongdoer under the Apportionment of Damages Act, or—if the estate had been finalised—to seek relief against heirs who had received inheritances, including by an enrichment-based claim such as the condictio indebiti.

A significant factual feature relied upon by the court was the MEC’s repeated attempts to obtain information necessary to identify the executor and heirs and to determine the administration status of the deceased estate. On 24 July 2018, the MEC delivered Rule 37 questions requesting particulars of the executor (Kalmin), particulars of the heirs, and the liquidation and distribution account. The MEC also recorded complaints that the absence of this information prejudiced him.

The respondents delivered a discovery affidavit on 17 August 2018 but did not include key estate documentation such as the will, letters of executorship, or the liquidation and distribution account. The matter then lay dormant during 2019 while awaiting a trial date, and court processes were disrupted during 2020 due to the COVID-19 pandemic. A virtual pre-trial conference took place on 30 and 31 July 2020, and the pre-trial minute was signed in September 2020. The MEC again recorded that he still awaited details of the executor and heirs and reiterated complaints about incomplete discovery.

When the requested information was still not forthcoming, the MEC delivered a Rule 35(3) notice on 1 September 2020 calling for the will, letters of executorship, final liquidation and distribution account, and the Master’s discharge form. The respondents responded on 4 September 2020 with an affidavit and documents, including the letters of executorship, the will, and the liquidation and distribution account. The court treated it as not contested that only from 4 September 2020 could the MEC reasonably have become aware of the identity of the heirs and a potential enrichment-based cause of action against the widow as the apparent sole heiress.

Further, the MEC wrote to the executor on 20 November 2020 to establish whether the estate had been finalised and whether the executor had been discharged. The executor replied on 22 November 2020 that he had not yet received the Master’s discharge. The court treated this information as significant because it indicated that the executor had not been discharged and that joinder of the executor as a party could be necessary.

The court also recorded a further delay linked to a change in the MEC’s attorneys as the estate file moved between firms, which occurred during the period 20 November 2020 to 14 April 2021.

Procedurally, the MEC initially launched a Rule 13 application to join parties, including an attempt to join the widow as a third party. The widow opposed that application on the basis that she was already a party to the main action and could not be joined as a third party under Rule 13(1)(a). The MEC withdrew the Rule 13 application on 26 July 2021. Prior to that, on 14 July 2021, the MEC requested consent from the respondents’ attorneys to file a late counterclaim; consent was refused. The MEC then launched the present Rule 24 application on 27 July 2021, which became opposed on 18 August 2021.

The respondents’ principal disputed position in the interlocutory proceedings was that the MEC had not provided a reasonable and acceptable explanation for the delay and that the proposed counterclaim had prescribed. The MEC disputed that prescription barred the granting of leave at this stage.

Legal Issues

The central questions for determination were procedural and discretionary in nature, focused on whether the MEC satisfied the requirements for indulgences under the Uniform Rules and related statutory provisions.

The court identified, in substance, whether the MEC had made out a case for late introduction of a counterclaim under Rule 24(1), including whether the MEC provided a reasonable and acceptable explanation for the delay and demonstrated an entitlement to institute the counterclaim in the context of applicable pleading requirements. The dispute therefore concerned the application of established procedural principles to the facts of the delay and the litigation history.

The court further had to decide whether the MEC should be permitted to deliver a third party notice late under Rule 13(3)(b), which required the court to determine whether good cause had been shown for service after the close of pleadings. This similarly involved an application of procedural law to the factual explanation advanced by the MEC.

A contested issue raised by the respondents was whether the intended counterclaim had prescribed under the Prescription Act 68 of 1969, and whether that contention affected the availability of leave under Rule 24(1). The court treated that issue as not decisive at the leave stage, holding that prescription could be raised when the counterclaim was pleaded to.

Finally, the court had to determine how to exercise its discretion in granting or refusing indulgences, considering convenience, equity, costs, and the avoidance of multiple proceedings, as well as the conditional nature of the contemplated counterclaim in relation to the outcome of the main action.

Court’s Reasoning

The court began by setting out the governing procedural framework. Under Rule 24(1), a counterclaim should ordinarily be delivered together with the plea, but may be delivered later with the plaintiff’s consent or, if refused, with the leave of the court. The court adopted the approach that a defendant seeking leave must provide a reasonable and acceptable explanation for non-compliance with the general rule and must show entitlement to institute the counterclaim, including compliance with pleading norms (with reference to Rules 18 and 20 and the authorities cited).

In assessing explanation for delay, the court treated as materially significant that the MEC lacked key information needed to plead a counterclaim or to join the executor or heirs earlier. The court accepted that the MEC did not have (and reasonably could not have had) information relating to the estate’s administration and the identity of the executor and heirs when the plea and amended plea were filed. The court emphasised that many of the required facts were within the possession of the plaintiffs, and that despite earlier requests (including Rule 37 questions in July 2018), the plaintiffs did not provide vital estate documentation until responding to the Rule 35(3) notice in September 2020.

On the court’s analysis, the delay was not sufficiently attributable to inactivity or ignorance by the MEC’s legal team. Instead, the court considered the plaintiffs’ non-disclosure and incomplete discovery to have materially contributed to the MEC’s inability to act earlier, and regarded the MEC’s requests and recorded complaints of prejudice as consistent with diligence rather than indifference. This formed the basis for the finding that the MEC had provided a reasonable and acceptable explanation for the late delivery.

Turning to the requirement of entitlement and the discretionary considerations relevant to allowing a counterclaim at a late stage, the court relied on the principle that such matters may be permitted where it is convenient, equitable, cost-saving, and avoids multiplicity of actions, including where the matter fits within Rule 10(3) (substantial overlap of questions of law or fact). The court found it “indubitable” that hearing the counterclaim together with the main action would be convenient and would avoid additional proceedings and costs.

The respondents’ prescription argument was addressed in a limited way. The court noted, with reference to the cited authority, that establishing entitlement to counterclaim does not require the applicant to show a prima facie case of success at this stage. The court considered it inappropriate to adjudicate prescription within the Rule 24(1) application, holding that prescription could still be raised once the counterclaim was delivered and pleaded to. The court also reasoned that the counterclaim was presented as conditional upon findings in the main action: if the MEC were found solely liable, the counterclaim would not arise. The court therefore treated the counterclaim as dependent on determinations such as the deceased’s negligence, the apportionment of blame, the quantification of loss of support, and the status and distribution of the deceased estate.

In relation to the Rule 13 third-party procedure, the court quoted Rule 13 and focused on Rule 13(3)(b), which requires leave for service after close of pleadings. The court recorded that the Rule 13 application was not opposed by the executor and regarded that as an appropriate stance in the circumstances. It held that the MEC had shown good cause for late service because the MEC previously did not know the identity and particulars of the third party or the facts from which any debt might arise. The court also accepted that the MEC established good cause to proceed notwithstanding the absence of notice under section 2(2) of the Apportionment of Damages Act, referring to the MEC’s reliance on section 2(4) in that regard.

Outcome and Relief

The application succeeded on the principal relief sought. The court granted the MEC leave under Rule 24(1) to serve a counterclaim against the first respondent (the widow) in the main action. It also granted leave insofar as necessary under section 2(4) of the Apportionment of Damages Act to institute that counterclaim based on the alleged joint wrongdoing of the deceased in the accident of 14 May 2016.

The court further granted the MEC leave to serve a third party notice under Rules 13(1) and 13(2) on the executor (Kalmin) as third party in the main action, and granted leave insofar as necessary under section 2(4) of the Apportionment of Damages Act to institute third-party proceedings on the same joint-wrongdoing basis.

As to costs, the court stated that costs should follow the result and ordered that the first respondent (the widow) pay the costs of the application. The order as recorded also included a further costs directive that “the MEC is directed to pay the costs of this application” in the portion dealing with Rule 13 relief, which stands alongside the earlier costs order in the same set of orders.

Cases Cited

Lethimvula Health Care (Pty) Ltd v Private Label Promotions (Pty) Ltd 2012 (3) SA 143 (GSJ).

Hosch-Fömrdertechnik SA (Pty) Ltd v Brelko CC 1990 (1) SA 393 (W).

Legislation Cited

Apportionment of Damages Act 34 of 1956 (including section 1(1)(b), section 2(2)(b), section 2(4), and section 2(1B) as inserted by Act 58 of 1971).

Prescription Act 68 of 1969 (including sections 12(1) to 12(3)).

Assessment of Damages Act 9 of 1969.

Rules of Court Cited

Uniform Rule of Court 24(1).

Uniform Rule of Court 13(1), 13(2), and 13(3)(b).

Uniform Rule of Court 35(3).

Uniform Rule of Court 37.

Uniform Rule of Court 10(3).

Uniform Rule of Court 18 and Uniform Rule of Court 20.

Held

The court held that the MEC provided a reasonable and acceptable explanation for the failure to deliver a counterclaim together with the plea, principally because the MEC lacked essential estate-related information that was only produced later by the plaintiffs after a Rule 35(3) notice.

The court held that it was convenient, equitable, and in the interests of avoiding multiplicity of proceedings to allow the late counterclaim to be introduced under Rule 24(1), and that disputes such as prescription were not appropriate for determination at the leave stage and could be raised in pleadings to the counterclaim.

The court held that good cause was shown to permit the MEC to serve a third-party notice after close of pleadings under Rule 13(3)(b), given the MEC’s earlier lack of knowledge of the executor’s status and the relevant estate facts.

LEGAL PRINCIPLES

The judgment applied the principle that, although Rule 24(1) contemplates delivery of a counterclaim together with a plea, a counterclaim may be delivered later either with the plaintiff’s consent or, failing consent, with the leave of the court, provided the applicant furnishes a reasonable and acceptable explanation for the delay and demonstrates an entitlement to institute the counterclaim in accordance with pleading requirements.

The judgment applied the principle that, in deciding whether to allow a late counterclaim, the court exercises a wide discretion informed by considerations of convenience, equity, the saving of costs, and the avoidance of a multiplicity of actions, including whether the counterclaim fits within the scope of Rule 10(3) (overlapping questions of law or fact that would arise in separate actions).

The judgment applied the principle that, for purposes of a Rule 24(1) application, a defendant seeking leave to counterclaim does not need to establish a prima facie case on the merits of the counterclaim at that stage, and that defences such as prescription may be raised in due course when pleading to the counterclaim rather than being decided in the leave application.

The judgment applied the principle that a third party notice under Rule 13 must ordinarily be served before the close of pleadings, but may be served after close of pleadings with the leave of the court upon a showing of good cause, including circumstances where the party seeking joinder lacked necessary information earlier.

The judgment proceeded on the statutory premise that, under the Apportionment of Damages Act, where injury or death is caused partly by the fault of the deceased and partly by the fault of another, the deceased estate and the other wrongdoer may be treated as joint wrongdoers for purposes of contribution and related relief, and that section 2(4) may permit the bringing of certain proceedings despite non-compliance with notice requirements contemplated in section 2(2).

Member of the Executive Council for Public Works, Roads and Transport Mpumalanga Province v D.B and Others (860/2017) [2022] ZAMPMBHC 77 (12 October 2022)