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[2021] ZAGPPHC 306
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Instant Life (Pty) Ltd v Tshukudu (5512-2018) [2021] ZAGPPHC 306 (13 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 5512/2018
In
the matter between:
INSTANT
LIFE (PTY) LTD
Excipient/Applicant
and
MELLICENT
THANDIWE TSHUKUDU
Respondent
In
re:
In
the matter between:
MELLICENT
THANDIWE TSHUKUDU
Applicant/Plaintiff
and
INSTANT
LIFE (PTY) LTD
First
Respondent/First Defendant
GUARDIAN
RISK LIFE LTD
Second Respondent/Second
Defendant
GUARDIAN
RISK INSURANCE
Third
Respondent/Third Defendant
COMPANY
LTD
Delivered.
This judgment was handed down electronically by circulation to
the parties’ representatives by email. The date and time for
hand down is deemed to be 10h00 on 13 May 2021.
JUDGMENT
SKOSANA
AJ
[1]
There are two applications before me in respect of this matter,
namely, the application
for leave to amend in terms of Rule 28(4)
brought by the applicant and the application to dismiss the
applicant’s action
lodged by the first respondent. The
application for leave to amend follows an objection against the
applicant’s proposed
amendment of her particulars of claim.
[2]
The applicant, who is the plaintiff in the main claim, issued summons
on 29 January
2018 against the first respondent in which she claims
payment of R1 500 000-00 from the first respondent by
virtue of
a written insurance contract allegedly concluded between
the first respondent and one U’Mphile Phomolo Tshukudu (“the
insured”) in which the applicant is a nominated beneficiary.
[3]
An exception was successfully taken against the applicant’s
initial particulars
of claim. On 31 October 2018, Baqwa J granted an
order striking out such particulars of claim but also granted the
applicant an
opportunity to amend within 15 days of the court order
failing which the first respondent would be entitled to approach the
court
to seek an order.
[4]
The applicant duly delivered a notice of intention to amend on 08
November 2018. The
first respondent objected to the amendment on 30
November 2018. The applicant brought the application for leave to
amend on 06
December 2018. The first respondent brought an
application for the dismissal of the applicant’s claim on 12
June 2019 (“the
dismissal application”).
[5]
Counsel for the respondents, Mr Boot informed me that he acts for all
three respondents.
This is despite the fact that the objection to the
amendment was initially taken by the first respondent alone. This was
also the
case with the dismissal application. Be that as it may, the
objection is raised mainly on the basis that the proposed amendment
renders the particulars of claim excipiable in that they will either
not disclose a cause of action or will become vague and embarrassing.
[6]
It was further contended that the proposed amendment does not comply
with Rule 18
and renders the particulars of claim vague and
embarrassing in that:
6.1
While the applicant cited the second and third respondents as
defendants to the action,
she does not set out the basis upon which
their liability arises;
6.2
Further, the relief sought by the applicant in the particulars of
claim holds all the three
respondents/defendants jointly and
severally liable, the one paying the others to be absolved;
6.3
The respondents also take issue with the substitution in respect of
the second and third
respondents and contend that it constitutes an
improper joinder through the proposed amendment; and
6.4
Lastly, the respondents seek an order of dismissal of the applicant’s
claim mainly
on the grounds of the alleged delay of the applicant in
the prosecution of this amendment and the finalization of the claim.
[7]
In her proposed amendment, the applicant makes lucid averments that,
regard being
had to the terms of the written insurance agreement in
question, both the first and second respondents are the entities who
are
liable for payment to the applicant. However, he alleges the
conclusion of the written insurance agreement only between the
insured
and the first respondent. There is no allegation that the
second and third respondents signed or bound themselves to that
agreement
in some or other legally recognized manner.
[8]
In my view the particulars of claim as reflected in the proposed
amendment are vague
and embarrassing and therefore excipiable in that
they do not allege the basis for the alleged liability of the second
and third
respondents to the plaintiff/applicant. That
notwithstanding, the statement needs qualification. The allegations
made in regard
to the terms of the agreement do establish a case
against the first respondent and/or possibly even against both the
first and
second respondents.
[9]
The fact that the particulars of claim are vague and embarrassing,
already presupposes
that they may still be amended to sustain a cause
of action especially in relation to the first and second respondent..
[10]
The fact that the applicant alleges that the second respondent is a
registered insurer and does
not make such allegation in respect of
the first respondent, does not in my view render the particulars of
claim incapable of disclosing
a cause of action
vis-a-vis
the
first respondent or the second. Such allegation is not necessary to
sustain a cause of action. In my view, it is a matter for
evidence or
at best the issue may be raised as a special plea to the claim.
[11]
For these reasons, I am inclined to grant the applicant an
opportunity to rectify her particulars
of claim accordingly.
[12]
The reasons stated above also apply to my decision in regard to the
application to dismiss brought
by the first respondent. I am not
persuaded that the delay in finalizing the Rule 28(4) application
justifies the dismissal of
the applicant’s main claim in its
entirety. The first respondent itself only brought the application to
dismiss in June 2019,
about a year after the applicant had filed the
Rule 28(4) application in December 2018. It is not clear as to what
exactly the
applicant could have done to expedite the finalization of
this matter. The first respondent’s counsel also stated that
further
delays occurred due to matters that are not attributable to
any party’s conduct.
[13]
I further disagree with the proposed interpretation of Baqwa J’s
order to the effect that
the opportunity of 15 days to amend meant
that the amendment should have been effected within those days. That
would have been
impossible even if the proposed amendment was not
objected to since the applicant would still have had another 10 days
to effect
the amendment after the filing of the proposed amendment.
The 20 days already exceeds the 15 days afforded by Baqwa J’s
order.
The filing of the objection rendered such interpretation even
more specious. It follows therefore that the only sensible
interpretation
of that order is that the applicant was granted an
opportunity to deliver the notice of intention to amend within 15
days of the
order.
[14]
Furthermore, when regard is had to the interchangeable manner in
which the first and second respondents
are mentioned in the written
insurance agreement, it becomes clear that substitution could be
effected by adding the second respondent
through the amendment. I do
not mention the third respondent because there is no basis laid for
including it. This however fortifies
my view that the defects in the
particulars of claim may still be cured and it is in the interest of
justice that the applicant
be granted an opportunity to do so, in a
new proposed amendment.
[15]
Regarding costs, I am of the view that no order of costs should be
granted since I intend to
dismiss the Rule 28(4) application brought
by the applicant as well as the application to dismiss brought by the
first respondent.
The costs cancel each other.
[16]
In the premises, I make the following order:
1.
The application for amendment in terms of Rule 28(4) is dismissed;
2.
The applicant may amend its particulars of claim within 15 days of
this order;
3.
The application to dismiss the applicant’s main claim is
dismissed;
4.
There is no order as to costs.
DT
SKOSANA (AJ)
Acting
Judge of the High Court
Pretoria
Date
of hearing:
12 May 2021
Date
of judgment:
13 May 2021
Appearance:
For
Applicant:
Adv I Kealotswe-Matlou
Instructed by Victor Mabe
Inc.
545 Begemann Street
Mabe Law Chambers
Eloffsdal, Pretoria
For
Respondents:
Adv B Boot SC
Instructed by Clyde and
Co Inc.
c/o Macintosh Cross
Farquharson
Embassy Law Chambers
834 Pretorius Street
Arcadia, Pretoria