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[2022] ZAECMHC 34
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Magwentshu v Minister of Safety & Security (2248/2012) [2022] ZAECMHC 34 (1 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISON, MTHATHA)
Case
No: 2248/2012
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
SIWAPHIWE
MAGWENTSHU
APPLICANT
And
MINISTER
OF SAFETY &
SECURITY
RESPONDENT
JUDGMENT
SMITH
J:
[1]
On 22 October 2012, the plaintiff issued summons against the
defendant for damages
he suffered as a result of an alleged assault
by members of the South African Police Services on 3 March 2012. In
paragraph 5 of
the particulars of claim, the plaintiff alleges that
the assault took place at Chatam Street, Mthatha, and that the police
officers
‘were accompanied/commanded by the ringleader Mr
Michael Pama’.
[2]
On 11 November 2021, he gave notice of his intention to amend his
particulars of claim
by averring that the alleged assault took placed
at Sprigg Street, Mthatha, and that the police officers were
‘accompanied/commanded
by the ringleader Mr Woods of the NIU
(National Investigation Unit)’.
[3]
The defendant filed a notice of objection in terms of Rule 28 (3) of
the Uniform Rules,
stating that he opposes the proposed amendment on
the following grounds:
(a)
The proposed amendment
has not been sought timeously, but only 9 years after the incident
occurred, without any explanation for
the inordinate delay.
(b)
The amendment will
render the pleading excipiable since it is contrary to the facts set
out in the statutory notice given in terms
of the
Institution of
Legal Proceedings Against Certain Organs of State Act, 40 of 2002
.
(c)
The defendant stands to
be prejudiced by the amendment as he has prepared for trial and
pleaded to the cause of action as pleaded
in the original particulars
of claim.
(d)
The amendment
introduces a new cause of action to the extent that the averments in
respect of the place where the alleged incident
took place as well as
the alleged perpetrators, introduce a new claim all together. That
claim has since become prescribed.
[4]
The plaintiff thereafter brought an application for leave to amend
his particulars
of claim in terms of Rule 28(4) of the Uniform Rules.
In the supporting affidavit filed by his attorney of record, the
attorney
states that he had only become aware of the discrepancies in
the plaintiff’s particulars of claim when he consulted with the
latter during October 2021. He then immediately took steps to ensure
that the pleadings are brought in line with the plaintiff’s
instructions.
[5]
I do not believe that there is
any merit in the defendant’s contention that he will
be
prejudiced by the delay in effecting the amendment. It is trite that
the defendant’s own investigations confirmed that
the alleged
incident occurred at Sprigg Street and that Mr Woods was the
commanding officer at the time. The matter has not yet
been set down
for trial and it is inconceivable that the defendant’s
preparation for trial will be impacted by the amendment.
[6]
There is also no merit in the defendant’s contention that the
proposed amendment
will introduce a new cause of action. The
essential facts pleaded by the plaintiff in order to sustain his
cause of action are
that members of the police force assaulted him on
3 March 2012, at Mthatha. The averments regarding the street where
the assault
allegedly took place and who commanded the police are not
part of the facta probanda required to sustain the plaintiff’s
cause of action. The amendment of those particulars do therefore not
introduce a new cause of action.
[7]
I am accordingly of the view that the defendant has not been able to
show that he
will be prejudiced in any manner by the proposed
amendment.
[8]
It is trite that amendments to pleadings will always be allowed
unless they are mala
fide or their introduction will cause prejudice
to the other party that cannot be remedied by a costs order. In this
case, the
defendant has not been able to show such prejudice and the
amendment must accordingly be allowed. The plaintiff has not asked
for
costs in his notice of motion, nor has he given notice to the
defendant that he will ask for costs in the event of the latter
opposing
the application.
[9]
In the result the plaintiff is given leave to amend his particulars
of claim in accordance
with the notice to amend dated 5 November
2021.
J.E.
SMITH
Judge
of the High Court
APPEARANCES
Date
of hearing
: 18 August 2022
Date
of delivery
: 1 September 2022
Attorney
for the Applicant
: Mr.
Linganiso
:
Messrs S.N.Z. Mtshabe Inc.
137 York Road
Meeg Bank Limited
MTHATHA
Attorney
for the Respondent :
Mr. Vutula
:
Messrs Vutula & Co.
Nobakhe House
17 Madeira Street
MTHATHA