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[2017] ZAKZDHC 7
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Wanda v Minister of Safety & Security (8810/2008) [2017] ZAKZDHC 7 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 8810/2008
In
the matter between:
SIZWE
AGRIPPA
WANDA
Plaintiff
and
MINISTER
OF SAFETY &
SECURITY
Defendant
ORDER
1.
The plaintiff’s amendment of 3 July
2014 to insert the word “maliciously” and claim the
increased sum of R 30 000
for malicious prosecution in paragraph
4(c) in his amended particulars of claim is a nullity and is
accordingly set aside.
2.
The plaintiff’s amendment to replace
the words “to date” and substitute same with the words
“to the end
of October 2014” and the consequent increase
of the plaintiff’s claim for loss of earnings is also declared
a nullity
and is set aside.
3.
The plaintiff’s amendment to replace
the word “assault” with the words “arrest and
detention” in paragraph
5 is granted.
4.
The plaintiff’s amendment to increase
his general damages from R 250 000 to R 1 200 000 is
granted subject to the
plaintiff proving the general damages he has
suffered.
5.
The costs of the application are reserved
for determination by the trial court hearing the issue of the quantum
of the plaintiff’s
damages.
JUDGMENT
HENRIQUES
J
Introduction
[1]
The opposed application before me is in respect of amendments sought
by the plaintiff to his particulars of claim.
[2]
The parties did not file affidavits.
Factual
Matrix
[3]
On 7 July 2008, the plaintiff instituted action against the defendant
for damages arising from his wrongful and unlawful arrest
on 12 July
2007 and his wrongful and unlawful detention from 12 July 2007 to 18
October 2007.
[4]
In terms of the particulars of claim dated 7 July 2008 (original
particulars of claim) the plaintiff sought damages as follows:
‘
4 (e) General
damages in the amount of R 150 000-00.
7 (a) Disability in
respect:
(i) Loss of earnings up
to July 2007 @ R 1 500-00 p.m. x 17 months to date: R 18 500-00;
(d) General damages for
past pain and shock, depriving of his liberty, suffering impairment
of his dignity and self-esteem and contumelia:
R 150 000-00;
(e) General damages for
malicious prosecution: R 20 000-00.
Total amount of damages
in the amount of R 188 000-00.’
[5]
The matter was enrolled for trial on two occasions for the
determination of the issue of liability. On 16 May 2012, Swain J
granted the following order:
‘
That in terms of
Rule 33(4) separating the issues of liability and quantum. The trial
will proceed initially solely on the issue
of liability.
It is declared that the
Defendant is liable to compensate the Plaintiff for any damages that
the Plaintiff may prove to have suffered.
That the Defendant is
ordered to pay the Plaintiff’s costs to date.’
[6]
I was informed by counsel for the plaintiff and defendant that the
issue of liability was conceded
in toto
,
as incorporated in the above order granted by Swain J.
[7]
The plaintiff thereafter by notice of amendment in terms of rule
28(1) dated 3 July 2014 (first amendment), sought to amend
the
original particulars of claim by
inter
alia
inserting the word “maliciously”
and by increasing the quantum of its damages as set out in the
notice.
[8]
Such amendment was not opposed by the defendant and the amended pages
were filed on 30 July 2014, thereby effecting the amendment.
[9]
On 8 October 2014, the plaintiff sought further amendments in terms
of a notice in terms of rule 28(1) of the Uniform Rules
of Court
(second amendment) in
inter alia
,
the following respects:
[9.1] replacing the
amount of R 250 000 in paragraph 4(e) in respect of general
damages with an amount of R 1 200 000;
[9.2] replacing the word
“assault” with the words “arrest and detention”
in claim B of its amended particulars
of claim;
[9.3] extending the date
of the plaintiff’s unemployment until the end of October 2014;
[9.4] extending the
period for loss of earnings to end of October 2014;
[9.5] amending the total
quantum of its claim to R 1 342 500;
[9.6] the aforesaid
amendments are set out in detail in the plaintiff’s notice
dated and served on 8 October 2014.
[10]
The defendant objected to the proposed amendments by notice of
objection dated 10 October 2014.
[11]
The grounds as stated in the notice are the following:
‘
1.
1.1 The initial amount of
damages was in the sum of R 250 000,00 and preceeding the trial
the Defendant was taking instructions
and trying to resolve the
matter based on the said amount;
1.2 The intended
amendment amount is R 1 200 000,00, the Defendant is now
facing a much more higher risk, if it were to
loose at trial;
1.3 the Defendant needs
more time to take instructions and deliberate over the new amended
sum claimed;
2.
2.1 The initial loss of
earnings claimed is in the amount of R 18 500,00.
2.2 The intended amended
amount is now R 112 500,00;
2.3 Defendant advances
the same argument as above.’
Analysis
[12]
Amendments to pleadings and documents, other than a sworn statement
are governed by the provisions of rule 28 of the Uniform
Rules of
Court.
[13]
Of significant relevance are the provisions of rule 28(10) which read
as follows:
‘
The court may,
notwithstanding anything to the contrary in this rule, at any stage
before judgment grant leave to amend any pleading
or document on such
other terms as to costs or other matters as it deems fit.’
[14]
It is clear from the aforesaid sub-rule that such amendments must be
requested before judgment, as once a court has pronounced
a final
judgment, it is
functus officio
and has no authority to grant any amendment of the
pleadings (see
Firestone South Africa
(Pty) Ltd v Genticuro AG
1977 (4) SA
298
(A) at 306F-G).
[15]
The order of Swain J referred to above was dispositive and
constituted a final judgment in respect of the issue of liability,
which in any event was confirmed by counsel for both the plaintiff
and defendant.
[16]
The first amendment sought by the plaintiff was to introduce a claim
for malicious prosecution after the grant of the order
by Swain J,
which claim was clearly not pleaded in its original particulars of
claim, notwithstanding reference to damages for
malicious
prosecution.
[17]
Notwithstanding the fact that the defendant did not object to such
amendment, the amendment is clearly a nullity, alternatively
void
ab
origine
. In seeking such amendment
after the grant of a final judgment referred to above, such amendment
violates the unambiguous provisions
of rule 28(10) of the Uniform
Rules of Court.
[18]
The general damages for such malicious prosecution concomitantly must
also fall away.
[19]
The purport of the second amendments sought by the plaintiff, as
reflected below, is in my view related to both issues of liability
and quantum for the reasons that appear hereunder.
[20]
The substitution of the word “assault” with the words
“arrest and detention” in paragraph 5, being
claim B of
the first amended particulars of claim, was nothing more than a
correction of a misnomer, as the plaintiff’s original
particulars of claim was never premised on an action for assault, but
rather an action for the wrongful and unlawful arrest and
detention
of the plaintiff. Such correction of the obvious misnomer can hardly
occasion any prejudice to the defendant (see
Moolman
v Estate Moolman
1927 CPD 27).
[21]
The amendment relating to the loss of earnings by extending the
period from seventeen (17) months to date with the words ‘loss
of earnings from the date of arrest and detention being 12 July 2007
@ R 1 500-00 p.m. to the end of October 2014’,
goes to the
root of the defendant’s liability to the plaintiff’s
damages in that the defendant conceded liability premised
on the
plaintiff’s original particulars of claim as recorded in the
order of Swain J referred to
supra
.
[22]
In considering the arguments before me, I am alive to the fact that
the court has wide powers to effect a change in the pleadings
at any
stage of the action (
Morgan & Ramsay
v Cornelius & Hollis
(1910) 31 NPD
262
at 265), however, such amendment should not be granted unless the
parties could be put back in the position as they were when the
pleading which was sought to be amended was filed (see
Simmons,
NO v Gilbert Hamer & Co Ltd
1963
(1) SA 897
(N))
.
[23]
In any event, such amendment falls foul of the provisions of rule
28(10) as referred to
supra
and is accordingly unsustainable.
[24]
The consequential proposed increase in the quantum of the plaintiff’s
claim in respect of loss of earnings in the circumstances
must also
fall away.
[25]
The amendment sought in respect of the plaintiff’s general
damages from R 250 000 to R 1 200 000 is related
only to
the issue of quantum and not the predisposed issue of liability.
[26]
Whilst the plaintiff has not submitted a reasonable explanation as to
the delay in seeking such amendment, such failure in
itself does not
preclude a court in the exercise of its judicial discretion from
granting such amendment (see
Ekurhuleni
Metropolitan Municipality v Waverley Court CC
2015
JDR 1496 (GJ) para 14).
[27]
In any event, the defendant cannot be prejudiced by the grant of such
amendment as the plaintiff is still obliged to prove
its general
damages at a trial to determine the issue of the plaintiff’s
quantum of damages.
Costs
[28]
Both parties have been partially successful and in the exercise of my
discretion, I deem it appropriate that the costs of the
application
should be reserved for determination by the trial court hearing the
issue of the plaintiff’s quantum of damages.
[29]
For the reasons referred to above, I grant the following orders:
[29.1] The
plaintiff’s amendment of 3 July 2014 to insert the word
“maliciously” and claim the increased
sum of R 30 000
for malicious prosecution in paragraph 4(c) in his amended
particulars of claim, is a nullity
and is accordingly set
aside.
[29.2] The
plaintiff’s amendment to replace the words “to date”
and substitute same with the words “to
the end of October
2014” and the consequent increase of the Plaintiff’s
claim for loss of earnings is a nullity
and is accordingly set aside.
[29.3] The
plaintiff’s amendment to replace the word “assault”
with the words “arrest and detention”
in paragraph 5 is
granted.
[29.4] The
plaintiff’s amendment to increase his general damages from R
250 000 to R 1 200 000 is granted
subject to the plaintiff
proving the general damages he has suffered.
[29.5] The costs of
the application are reserved for determination by the trial court
hearing the issue of the quantum of
the plaintiff’s damages.
________________
HENRIQUES J
Case
Information
Date
of argument
:
13 &
21 October 2014
Date
of judgment
:
3 March
2017
Appearances
Counsel
for Plaintiff
: Adv. W. S. Kuboni
Instructed
by
: Chiliza Dlamini Attorneys
Suite 1103, 11
th
Floor
Metlife Building
391 Anton Lembede Street
(Smith Street)
Durban
Ref: BGD/LN/01/W020/08
(T) 031-301 7556
(F) 031-301 9882
Counsel
for Defendant
: Adv.
T. Khuzwayo
Instructed
by
: State Attorney: KwaZulu-Natal
6
th
Floor, Metlife Building
391 Anton Lembede Street
(Smith Street)
Durban
Ref: 123/002257/08/W/P26
(T) 031-365 2500
(F) 031-306 2448