About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 13
|
|
Lisele v Minister of Police (2084/2014) [2018] ZAFSHC 13 (9 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No
:
2084/2014
In
the matter between:
SABATA DOMINIC
LISELE
Plaintiff
and
MlNISTER
OF
POLICE
Defendant
HEARD
ON:
09 FEBRUARY 2018
DELIVERED
ON:
22 FEBRUARY 2018
JUDGMENT
BY:
PJ LOUBSER
[I]
INTRODUCTION:
[1]
This
matter came before me for the determination of an exception filed by
the Defendant against the Plaintiff's Particulars of Claim
on the
basis that it does not disclose a cause of action against him. The
exception is opposed by the Plaintiff
[2]
The
exception became complicated by a number of procedural issues which
may have a bearing on the outcome thereof. These issues
pertain to
the question whether the Particulars of Claim have been amended after
the filing of the Notice of Exception or not.
The relevant facts are
mostly common cause between the parties.
[II]
THE FACTS:
[3] The
Plaintiff
issued
summons for damages
against the Defendant on 23
rd
June 2014, alleging in his Particulars of Claim that he was kidnapped
at gunpoint, assaulted with a fire-arm belonging to the Department
of
the Defendant, and then driven over repeatedly using his own vehicle.
It is alleged that the Defendant was liable because his
Department
failed to retrieve the fire-arm from one of its members on the
termination of his service as a policeman, which failure
caused the
said fire-arm to end up in the illegal possession of the perpetrator.
[4] The
Defendant noted the present exception to the Particulars of Claim on
15
th
October 2014 on the basis that it does not disclose a
cause of action against the Defendant in that the claim for damages,
as a
result of the negligent driving or other wrongful act of the
perpetrator, falls within the ambit of
Section 17(1)(a)
of the
Road
Accident Fund Act no. 56 of 1996
. Only the Road Accident Fund is
therefore obliged to compensate the Plaintiff, and not the Defendant.
[5]
The exception was never set down for hearing by either the Defendant
or the Plaintiff. Instead,
on 1ih December 2014, the Plaintiff filed
a Notice of Intention to Amend his Particulars of Claim. The
amendment sought to introduce
allegations to the effect that the
Plaintiff had indeed issued Summons against the RAF on 1ath October
2013 to mitigate his damages,
and that the RAF was ordered by the
Court on 3rd December 2014 to pay to the Plaintiff an amount of R3
664 066.12, together with
an undertaking in terms of Section 17(4)(a)
of the RAF Act.
[6]
The Defendant formally objected to this proposed amendment on 5th
January 2015 on
the basis that,
inter a/ia,
the Defendant and
the RAF should have been sued as joint wrongdoers, that the Plaintiff
has failed to obtain leave of the Court
to sue the Defendant1 and
that the Defendant was not given a Notice in terms of Section 2(2)(a)
of the Apportionment of Damages
Act no. 34 of 1956.
[7]
The Plaintiff then failed to proceed with an application to amend
accordingly after
the filing of the Objection and the whole matter
then became literally dormant for a period of more than two (2)
·
·
:
years,
apparently because of issues between the Plaintiffs
·
attorneys
and the Law Society, not related to the present case.
[8]
On 1
st
August 2017, the Plaintiff took the next step by
filing a second Notice of Intention to Amend his Particulars of
Claim. Broadly
speaking, the second amendment sought does not differ
much from the first one1 although now the Plaintiff sought to reduce
the
amount claimed,
inter alia.
No objection was filed by the
Defendant to this second proposed amendment.
[9]
As
a result the Plaintiff filed his amended pages on 18th August 2017,
thereby effecting the amendment in terms of Court Rule 2
.
8(7).
When this came to the knowledge of the Defendant, he filed two
notices on 29
th
August 2017, namely a Notice of Objection to the proposed amendment,
and a Notice of Non compliance with the Rules in terms
of Rule
30A. In both the notices it is stated that the Plaintiff should not
be permitted to amend his Particulars of Claim until
such time as the
Court has pronounced whether he is entitled to amend in accordance
with either the first or second notices to
amend. It is further
stated that it constitutes an irregular step not to have proceeded
with the first notice to amend, and then
to serve a further notice to
amend for substantially the same relief.
[10]
A mere three (3) days before the filing
of the two notices by the Defendant, the Defendant filed an
application for condonation
for the failure to object to the second
Notice of Intention to Amend
,
and
to be granted leave to object to the Respondent's second Notice of
Intention to Amend.
[11] The
application was heard on 21
st
September 2017 by Reinders
J, and she made the following order on the same day:
1.
The
Court condones the Applicant's failure to have objected to the
Respondent's notice of intention to amend dated 31
July
2017 and served on the Applicant's attorneys on 1 August 2017
(“the
second Notice of Intention to Amend”);
2.
The
Applicant is granted leave to object to the Respondent's second
notice of intention to amend;
3.
The
Court condones the serving and filing of Applicant's Rule 30A dated
28 August 2017, insofar as this may be necessary.
[12]
After
this order was made, nothing further happened until 13th December
2017, when the Defendant filed a Notice of Set Down for
the hearing
of the Exception on 9th February 201
[Ill]
SUBMISSIONS ADVANCED
BY COUNSEL:
[13] Mrs
Williams, appearing for the Excipient/Defendant, took the point of
view that the original Particulars
of Claim have not been amended
finally or at all, and that the Notice of Exception dated 15
th
October 2015 is therefore still valid and of full force and
.
effect. She argued
that the Plaintiff never made any attempt to apply to Court for the
second amendment to be allowed after the
objection
of 29
th
August 2017 and the Court order of 21
st
September 2017
.-
The
second amendment therefore never came to fruition with the result
that the original Particulars of Claim still stood and has
to be
adjudicated now in terms of the Exception filed.
[14] Mr
Van Rhyn SC, on behalf of the Plaintiff, submitted that the second
amendment was indeed effected
on 18th August 2017, and that the
Defendant never objected thereto after he was granted leave to do so
in the Court Order of 21st
September 2017. According to his
submissions, the exception has therefore lapsed, since the Defendant
failed to apply for a date
of hearing within five (5) days of the
filing of the first notice to amend in terms of Rule 23(2), read with
Rule 6(5)(f), and
since it does not deal with the amendments already
effected on 18
th
August 2017.
[IV]
DETERMINATION:
[15]
It is clear from the submissions
advanced by counsel that the Court Order of 21st September 2017 was
understood differently by the
partie
s.
The Plaintiff understood the order to mean that the Defendant was
granted leave to file an objection to the second amendment in
the
days to come, regardless of the fact that such objection was already
filed on 29th August 2017. The Defendant understood the
order to mean
that leave was granted to object to the amendment, and that the order
have referred to the objection already filed.
These conflicting
interpretations caused the Plaintiff to believe that the second
intended amendment was never objected to, and
that the already
effected amendment therefore became final, while the Defendant
believed that the objection was already in place,
but that the
Plaintiff had failed to take the proposed amendment any further, as
contemplated by Rule 28(4). No amendment therefore
came into effect,
and the Particulars of Claim remained in its original form, rendering
the exception still relevant, the argument
went.
[16] It is
the view of the Court that it is not necessary to decide the
·
correct
interpretation of the Court Order. This is so because there can be
little doubt that the Plaintiff had wanted to amend his
Particulars
of Claim in response to the Defendant's exception on more than one
occasion. The Defendant had failed to proceed with
his exception in
terms of the Rules in 2014, and before long, the Defendant's focus
had shifted to the proposed first amendment
and later the proposed
second amendment, while on a balance of probabilities, the exception
had then faded into the background
in the mind of the Defendant. It
was only when the opportunity presented itself to the Defendant to
take advantage of the confusion
following the Court Order of 21
st
September 2017, that the Defendant saw fit to revive the exception
and to set it down for hearing
[17] While
he Court Order of 21st September 2017 clearly had in mind
regularising the process of the proposed
amendment, unfortunately it
failed to do so. I say unfortunately, because the present exception
is clearly dependent on the question
whether the Particulars of Claim
will indeed be amended or not. In any event, should the proposed
amendment simply be ignored and
the exception be held to succeed, the
Plaintiff will be afforded the opportunity of amending his pleading,
with the result that
the proposed amendment would again come under
scrutiny in what would appear to be a never-ending circle of wasting
time and costs.
[18] As
regards the failure of the Defendant to apply for a date of hearing
for the exception within five
(5) days way back in 2014, I cannot
agree with the submission that there is nothing preventing an
Excipient to take the necessary
steps to have the exception set down
for hearing at any point in time. The provisions of Rule 23(1) are
clear to the effect that
the principal use of an exception is to
raise and obtain an expeditious and economical decision on questions
of law which are apparent
on the face of the pleadings
(See:
Harms, Civil Procedure
in the Superior Courts B23.3 and Herbstein and Van Winsen, The Civil
Practice of the High Courts of South
Africa, 5
th
Edition, Vol. 1 page 630).
[19] I
therefore regard the sudden setting down of the exception for
·
hearing
more than three (3) years after the filing thereof as an
opportunistic step by the Defendant in the circumstances outlined
above, which step justifies an order of this Court aimed at finally
regularising the proceedings now and achieving a speedy resolution
to
the question of the proposed amendment to the
Plaintiffs Particulars of
Claim. Should the proposed amendment be allowed, then the present
exception will become irrelevant. In
my view, the allegation made by
Mrs Williams that the parties had agreed by way of correspondence to
have the exception heard on
the day of hearing, can have no influence
on the decision of the Court.
[V]
THE FOLLOWING ORDER IS
THEREFORE MADE:
1.
The
exception is struck from the roll with costs.
2.
The Plaintiff is ordered to lodge an
application for leave to amend his Particulars of Claim in accordance
with his second Notice
of Intention to Amend and in response to the
Objection filed by the Defendant on 19
th
August 2017, which application must be filed within ten (10) days of
date of this order.
3.
After
the filing
·
of
the application referred to above, the further proceedings in the
application are to be conducted in terms of the provisions
of Rule
28.
4.
The
Defendant's Rule 30(A) notice dated 28th August 2017 may be
determined together with the application to amend, insofar as this
may be necessary.
P J LOUBSER, J