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[2016] ZAKZDHC 13
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Moodley v Renasa Insurance Company Limited and Others (9443/2010) [2016] ZAKZDHC 13 (31 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU
LOCAL DIVISION, DURBAN
Case
No: 9443/2010
DATE:
31 MARCH 2016
In
the matter between:
INBAVATHI
MOODLEY
.........................................................................................
Applicant/
Plaintiff
And
RENASA
INSURANCE COMPANY LIMITED
....................................
First
Respondent/Defendant
HOLLARD
INSURANCE COMPANY LIMITED
............................
Second
Respondent/Defendant
TRACKER
NETWORK (PTY) LIMITED
...........................................
Third
Respondent/Defendant
FORSDICKS
BMW
...............................................................................
Fourth
Respondent/Defendant
Coram:
Koen J
Heard:
22 March 2016
Delivered:
31 March 2016
ORDER
(a)
An order is granted in terms of paragraphs
1 and 2 of the Notice of Application in terms of rule 28(4) dated 10
September 2014.
(b)
The Applicant and the Second Respondent are
each liable for their own costs of the application.
J
U D G M E N T
KOEN
J
:
[1]
The Applicant seeks an order granting her leave to amend her
Particulars of Claim:
By
the introduction of the following:
“
24A
Alternatively
to paragraph 24.2 the Plaintiff’s claim is for payment of the
sum of R674 250,00 being the amount insured
(R710 000.00) minus the
excess payable in terms of the policy with the First Defendant (R35
750.00).”
By
the addition of the following prayer:
“
2.
Alternatively, payment of the sum of R674 250.00;”’
[1]
She
further seeks an order that she be directed to pay the wasted costs,
if any, occasioned by this amendment, and an order that
the Second
Respondent
[2]
pay the costs of
the application.
[3]
[2]
The application is opposed by the Second Respondent, Hollard
Insurance Company Limited. The other Respondents abide by the
decision of this court.
[3]
I do not intend quoting in detail from the pleadings, but will
briefly summarize by way of background what the allegations in
the
pleadings by the parties reveal, insofar as relevant to this
judgment:
(a)
The Applicant purchased a BMW X5 vehicle
from the Fourth Respondent (Forsdicks BMW) on 24 December 2009. The
purchase was financed
with a loan from BMW Financial Services South
Africa for a price of R713 500.00. It was a requirement of that
finance that the
vehicle had to be comprehensively insured;
(b)
The vehicle was comprehensively insured
with the First Respondent (Renasa Insurance Company Limited) on
24 December 2009.
This insurance required that the vehicle
be fitted with a vehicle tracking system. The Fourth Respondent was
contracted by the
Applicant on 24 December 2009 to fit such a system
to the vehicle and the Third Respondent was contracted to monitor and
track
the vehicle, and in the case of a loss thereof to locate the
vehicle, using this tracker device;
(c)
The Applicant concluded an insurance policy
with the Second Respondent on 24 December 2009, a copy of
part of which was
annexed as annexures ‘F1’ and ‘F2’
to the Particulars of Claim, referred to as a ‘shortfall
protection’
policy. The Applicant alleges that:
‘
In
terms of this policy the Second Defendant undertook to compensate the
Plaintiff in the event that the Plaintiff’s insurer
(that is
that the First Defendant) failed to compensate the Plaintiff’.
The terms of the Policy are:
“
Violation
If
your vehicle is damaged, stolen or written off and the claim is
rejected by the underlying policy due to you unintentionally
violating a condition of the underlying policy, shortfall protection
will pay:
If
the vehicle is repairable : Cost of repair less the underlying policy
excess.
If
the vehicle is a total loss : Maximum indemnity less the underlying
excess”.’
[4]
(d)
The vehicle was stolen on 15 February 2010.
The First Respondent has denied liability. Its reasons for doing so
are not relevant
to this judgment;
(e)
The Applicant lodged a claim against the
Second Respondent alleging that she fulfilled all her obligations in
terms of the insurance
policy in lodging the ‘insurance claim’
and that the insurance contract was in force at the time of the
theft. The
Second Respondent however repudiated the Applicant’s
claim by letter dated 22 June 2001. Its reasons for doing so are
likewise
not relevant to this judgment, save to record that they are
founded on the provisions of the policy;
(f)
Based
on the above the Applicant claimed that the Respondents each in the
alternative ‘is liable to compensate the Plaintiff
for the sum
of R713 500,00 being the value of the vehicle at the time of the
theft’
[5]
;
(g)
In response the Second Respondent in its
amended plea set out
inter alia
the terms of the insurance policy in detail and specifically pleaded
that, at best, it could be liable to indemnify the Applicant
for the
‘Maximum Indemnity’ as defined in the policy, being ‘the
Sum insured or the Market Value of the Vehicle,
whichever is the
lesser, or the Statutory Settlement Balance, which[ever] is the
greater …’ less the ‘First
Amount Payable’.
These terms bear specific defined meanings in terms of the provisions
of the policy;
(h)
It
is this plea which gave rise to the amendment sought by the
Applicant.
[6]
[4]
The amendments sought were objected to and the application for the
amendment opposed on the basis that the amendment would:
(a)
introduce a different claim to that originally pursued which by the
time the notice of amendment was filed would have prescribed,
alternatively
(b)
render the Particulars of Claim excipiable, at least at the level of
them being vague and embarrassing.
[7]
[8]
[5]
As much as both the aforesaid grounds are competent grounds on which
a court may refuse leave to amend, it bears reminding
that courts are
indulgent in granting amendments so as to ensure that the true issues
are ventilated and will generally take an
indulgent approach unless
prejudice will result to any party affected by the amendment which
cannot be remedied by an appropriate
order as to costs. Thus it was
held in
YB
v SB & Others NNO
[9]
that:
[11]
The primary consideration in applications of this nature seems to be
whether the amendment will have caused the other party
prejudice
which cannot be compensated for by an order for costs or by some or
other suitable order such as a postponement (
Imperial
Bank Ltd v Barnard and Others NNO
2013
(5) SA 612
(SCA) para 8). It is of course necessary to bear in mind
that a further important object of allowing an amendment is 'to
obtain
a proper ventilation of the dispute between the parties'
(
Trans-Drakensberg
Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd
and Another
1967
(3) SA 632
(D) at 638A). Our courts have also increasingly recognised
that court rules and pleadings are not there for their own sake but
to advance 'the good order, and the administration of justice'
(
Bankorp
Ltd v Anderson-Morshead
1997
(1) SA 251
(W) at 253D – G). It is accepted law that a court
will not allow amendments where their effect would render such a
pleading
excipiable or where it does not cure an excipiable pleading.
(Erasmus
Superior
Court Practice
service 42, 2012 B1 – 183). In
Crawford-Brunt
v Kavnat and Another
1967
(4) SA 308
(C) at 310G Tebbut AJ (as he then was) held, however,
that, 'If the pleading would appear to be possibly open to exception
or even
if the court is of opinion that the question of whether or
not the pleading is excipiable is arguable, it would seem to be the
more correct course to allow the amendment.'
[10]
[6]
In deciding whether to grant or refuse a pleading, a court exercises
a discretion. Thus it was said in
Trans-Drakensberg
Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd
and Another
[11]
that:
‘
The
decision whether to grant or refuse an application to amend a
pleading rests in the discretion of the Court.
Robinson
v Randfontein Estates Gold Mining Co. Ltd.
,
1921 AD 168
at p. 243. The principles by which that discretion is
exercised are not, however, easy to define, in the light of the
multiplicity
of reported cases, not entirely harmonious, on the
subject. That the attainment of justice between the parties is not to
be obstructed
by a too rigid adherence to the pleadings appears to be
implicit in what DE VILLIERS, J.A., said in
Shill
v Milner
,
1937 AD 101
at p. 105,
namely: 'The importance of pleadings should not be unduly magnified',
followed by the quotation of the dictum of INNES,
C.J., in
Robinson
v Randfontein Estates Gold Mining Co. Ltd
.,
1925 AD 173
at p. 198, as follows:
'The
object of pleading is to define the issues: and parties will be kept
strictly to their pleas where any departure would cause
prejudice
or would prevent full enquiry. But within those limits the Court has
a wide discretion. For pleadings are
made for the Court, not the
Court for pleadings.'
…
The
primary principle appears to be that an amendment will be allowed in
order to obtain a proper ventilation of the dispute between
the
parties, to determine the real issues between them, so that justice
may be done. Overall, however, is the vital consideration
that no
amendment will be allowed in circumstances which will cause the other
party such prejudice as cannot be cured by an order
for costs and,
where appropriate, a postponement.
In
Whittaker v Roos and Another
,
1911 T.P.D. 1092
at p. 1102,
WESSELS, J., said:
'This
Court has the greatest latitude in granting amendments, and it is
very necessary that it should have. The object of the Court
is to do
justice between the parties. It is not a game we are playing, in
which, if some mistake is made, the forfeit is claimed.
… But
we all know, at the same time, that mistakes are made in pleadings,
and it would be a very grave injustice, if for
a slip of the pen, or
error of judgment, or the misreading of a paragraph in pleadings by
counsel, litigants were to be mulcted
in heavy costs. That would be a
gross scandal. Therefore, the Court will not look to technicalities,
but will see what the real
position is between the parties.'
In
Rishton v Rishton
,
1912 T.P.D. 718
, the same learned Judge
said at p. 719:
'There
is, however, another principle in our practice, and that is to allow
a party, up to the very last stage of the case, the
full right to
amend, so that the Court may not be deceived or judgment may not be
wrongly given against the party, and also to
enable the Court to know
exactly the nature of the dispute and the facts of the dispute in a
particular case. But the practice
which has been gradually
adopted in English Courts now crystalized by rules and orders, which
has also been followed very largely
in our Courts, is to allow
amendments to be made provided the other side is not in any way
prejudiced by such amendments. In
Tildesley
v Harper
,
10 Ch.D. 393
, Lord BRAMWELL
said (p. 396):
'My
practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting mala fide, or
that, by
his blunder, he has done some injury to his opponent which could not
be compensated for by costs or otherwise.'
BRETT,
M.R., in
Clarapede and Co v Commercial Union Association
,
32
W.R. 262
, said the following (p. 263):
'However
negligent or careless may have been the first omission and however
late the proposed amendment, the amendment should be
allowed if it
can be made without injustice to the other side. There is no
injustice if the other side can be compensated by costs.''
...In
the Cape Division the matter was expressed by WATERMEYER, J., in
Moolman v Estate Moolman and Another
,
1927 CPD 27
at p. 29, as
follows:
‘ …
the
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or unless
such
amendment would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless the parties
cannot be
put back for the purposes of justice in the same position as they
were when the pleading which it is sought to amend
was filed.'
In
this Province, in
Morgan & Ramsay v Cornelius & Hollis
,
1910 NPD 262
at p. 264, BALE, C.J., said:
'The
Court has very wide powers to effect a change in the pleadings at
any stage of the action - it has been said, though
not decided
here, even after argument and before judgment;'
and
DOVE - WILSON, J., said at p. 265:
'In
my opinion the Court ought to allow all such amendments as may be
necessary for the purpose of determining in an existing action
or
proceedings the real question between the parties. Personally I see
no objection to a new ground of action or defence being
stated by way
of amendment, nor should I in all circumstances object to amendment
merely because it goes the length of changing
the character of the
action, where that is necessary to determine the real question
between the parties.'
BROOME,
J.P., in
Heeriah and Others v Ramkissoon
,
1955 (3) SA 219
(N) at p. 222, adopted the remarks of BOWEN, L.J., in an English
case, namely:
'Now,
I think it is a well-established principle that the object of Courts
is to decide the rights of the parties, and not to punish
them for
mistakes they make in the conduct of their cases by deciding
otherwise than in accordance with their rights . . . I know
of no
kind of error or mistake which, if not fraudulent or intended to
overreach, the Court ought not to correct, if it can be
done without
injustice to the other party. Courts do not exist for the sake of
discipline but for the sake of deciding matters
in controversy, and I
do not regard such amendment as a matter of favour or of grace . . .
It seems to me that, as soon as
it appears that the way in
which a party has framed his case will not lead to a decision on the
real matter in controversy, it
is as much a matter of right on his
part to have it corrected, if it can be done without injustice, as
anything else in the case
is a matter of right . . . I have found in
my experience that there is one panacea which heals every sore in
litigation, and that
is costs. I have very seldom, if ever, been
unfortunate enough to come across an instance where a person has made
a mistake in
his pleadings which has put the other side to such a
disadvantage as that it cannot be cured by the application of that
healing
medicine.'
I
had occasion in a judgment with which my Brethren HENNING and
HARCOURT agreed, in
Simmons, N.O v Gilbert Hamer & Co.
Ltd
.,
1963 (1) SA 897
(N) at p. 906, to say:
'.
. . it is desirable not to be bound inflexibly to rules of procedure
unless compelled to this by the clear language of the law,
and that
the present day tendency is away from formalism in procedure and in
the direction of assuring that justice is done by
allowing, whenever
necessary, amendments to pleadings and the admission of further
evidence, whether oral or on affidavit, subject
to the absence of
prejudice to the other party not remediable by an appropriate order
as to costs',
…
These
observations, in all four Provinces, make it clear, I consider, that
the aim should be to do justice between the parties by
deciding the
real issues between them. The mistake or neglect of one of them in
the process of placing the issues on record is
not to stand in the
way of this; his punishment is in his being mulcted in the wasted
costs. …
In
relation to delay in applying for an amendment, in
Rosenberg v.
Bitcom
, supra at pp. 118, 119, GREENBERG, J., made observations
of which RAMSBOTTOM, J., said in
Park Finance Corporation (Pty.)
Ltd v Van Niekerk,
1956 (1) SA 669
(T) at p. 676:
'Mr.
Eloff contended that there had been unreasonable delay in applying
for the amendment, and that as a result the defendant would
be
prejudiced if the amendment were allowed. He contended that
unreasonable delay was in itself a ground for refusing the amendment,
and relied on
Rosenberg v Bitcom
,
1935 W.L.D. 115.
There is some authority to support this contention,
although I am not sure that
Rosenberg v
Bitcom
does help him.'
Then,
after discussing that case, he said at p. 667:
'It
is not clear to me that GREENBERG, J., held that an amendment might
be refused if either the delay had been unreasonable or
the omission
had been
mala fide
or intentional, as is stated in the head-note. That would be
inconsistent with the remark of BRETT, M.R., from which GREENBERG,
J., expressed no dissent. I think that the passage
'The
two requisites therefore are in the first place unreasonable delay,
and, secondly, that the omission should be
mala
fide
or intentional' may be merely a restatement or summary of the passage
in Bullen & Leake to which he had referred. It was not
necessary
for GREENBERG, J., to decide whether unreasonable delay alone is a
sufficient ground for refusing an amendment, since
a satisfactory
explanation was given. The error that the plaintiff sought to rectify
was not made and the application was granted.
Speaking for myself, I
do not know why long delay alone should be a bar to the granting of
an amendment where 'the amendment facilitates
the proper ventilation
of the dispute between the parties'. If an amendment at a late stage
should cause prejudice to the other
side which cannot be prevented by
a postponement or compensated by costs the amendment would be refused
on that ground, but where
there is no prejudice which cannot be
prevented or compensated in that way I do not know why it should not
be granted.'
[12]
[7]
Mr Harcourt SC
,
on behalf of the Applicant, readily, and correctly conceded that the
Particulars of Claim were not a model of clarity. He sought
some
excuse for that in the submission that the possible causes of action
against some of the Respondents are potentially complex,
it not being
clear whether they are properly founded in contract or delict. That
potential difficulty however does not arise in
respect of the Second
Respondent. The claim against it can only arise from the contract of
insurance and can only be for an indemnity,
which the Particulars of
Claim articulated by stating that the Second Respondent is liable to
the Applicant ‘on the grounds
that the Plaintiff fulfilled all
her obligations in terms of the insurance and claim and that the
Second Defendant’s repudiation
was wrongful and unlawful’.
[8]
I agree with the submission that all the Applicant seeks to achieve
by the amendment is to better lay a basis for what she believes
she
would be entitled to claim in the light of the Second Respondent’s
plea.
[9]
As regards the issue whether the amendment now introduces a claim
different to that originally pleaded, and which because of
the
intervening lapse of time would have prescribed, the general body of
authority is clear that it is not necessary for an initial
claim to
have been pleaded flawlessly to interrupt prescription (as much as it
is recognized that where a completely different
cause of action is
sought to be introduced, plainly such an amendment should be
refused). However, where the ‘debt’,
being the word used
in the
Prescription Act 68 of 1969
, remains of the same nature and
only the amount thereof and the basis for contending that a lesser
amount is due are new, for example
due to overlooked deductions, an
amendment should not be refused. In order to interrupt prescription
in terms of
s 11(d)
of the
Prescription Act, all
the legal process
initiating the claim had to do was to identify the debt. It is
sufficient even if a complete cause of action
was not made out.
[10]
Thus in
CGU
Insurance Ltd v Rumdel Construction (Pty) Ltd
[13]
it was said that:
‘
…
.the
appellant's argument commenced with the sound premise that an
amendment was permissible provided that the debt claimed in the
amendment was the same or substantially the same as the debt
originally claimed. It then, however, overlooked the broad meaning
given by the Court to the word 'debt' in the
Prescription Act 68 of
1969
and, in doing so, equated the debt with the respondent's cause
of action. By curing a defective cause of action by introducing the
contract upon which it really relies, the respondent's summons did
not necessarily claim a different debt.
[14]
The Act did not define 'debt' but from its use it was evident that
'debt' meant different things in different contexts. It did
not have
the technical meaning given to the phrase 'cause of action' when used
in the context of pleadings but bore a wider and
more general
meaning. The debt was not the set of material facts but that which
was begotten by the set of material facts.
[15]
…
when
a court was called upon to decide whether a summons interrupted
prescription it was necessary to compare the allegations and
relief
claimed in the summons with the allegations and relief claimed in the
amendment to see if the debt was substantially the
same. In the
present case there was no amendment to the relief claimed. The
amendment did introduce a new insurance contract as
the basis for the
claim of the loss which occurred in March 1996, but an objective
comparison between the original particulars
of claim and the
particulars of claim as amended made it clear that, although part of
the cause of action was now a different contract,
the debt was the
same debt in the broad sense of the meaning of that word. The
contractual relationship alleged in the summons
and the
amendment was and remained one of insurer and insured and the debt
was and remained the same debt for the same loss,
notwithstanding
that it had become payable by reason of an earlier contract of
insurance and not the one originally pleaded’.
[16]
[11]
Similar sentiments are apposite in respect of the issues before me.
The
proposed amendment to claim a lesser amount
[17]
in the alternative is not the introduction of a new or different debt
which might run the risk of prescription. It does not introduce
a new
cause of action but only clarifies a pleading which insufficiently or
imperfectly sets out the original cause of action.
[18]
[12]
This is also consistent with what was said in
Sentrachem
Ltd v Prinsloo,
[19]
which held that when deciding whether an amendment introduces a new
claim which it is contended has prescribed, in the context
of
s 15(1)
of the
Prescription Act, that
the term
‘”
cause
of action” is misleading and the term “right of action”
is preferable. It is not necessary for the purposes
of prescription
that a summons discloses a cause of action as long as it is not a
nullity incapable of amendment. The real test
is whether the same
claim was preferred in earlier process, that is whether debt as set
out in amended process is recognisable
from that in the original
process, so that the subsequent amendment amounts to no more than a
clarification of defective pleading’
[20]
.
[13]
It was only necessary for the original summons to have identified the
debt to interrupt prescription. That it did. Whether
as a matter of
law that claim should correctly be calculated with reference to the
‘value of the vehicle at the time of the
theft’ and
whether the amount of the ‘value’ coincides with the
‘market value’ is for the trial court
to decide.
Ultimately, as against the Second Respondent it might be proved that
the Second Respondent’s liability to compensate
was, at best,
for a lesser amount being the maximum indemnity less the underlying
excess, whereas the potential liability against
the other Respondents
might be for different amounts. The excess deduction will not be a
matter of pleading but a matter for evidence.
[14]
As a matter of pleading, all the Applicant has to allege in her
Particulars of Claim are the relevant facts. The requirements
for
proper pleading are explained succinctly by the learned authors in
Herbstein & Van Winsen
[21]
as follows:
‘
IV
PARTICULARITY
Subrules
18(4) and (5) provide as follows:
18(4)
Every pleading shall contain a clear and concise statement of
material facts upon which the pleader relies for his claim,
defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
(5)
When in any pleading a party denies an allegation of fact in the
previous pleading of the opposite party, he shall not do so
evasively
but shall answer the point of substance.
The
requisites of good pleading are said to be ‘that it should
contain a statement of (1) fact, now law, (2) material facts
only,
(3) facts, not evidence, and (4) facts stated in a summary form’
and that ‘material facts’ are all facts
which must be
proved in order to establish the ground of claim or defence.
Every
pleading must contain a clear and concise statement of the material
facts, preferably in chronological order, upon which the
pleader
relies for his claim, defence or answer to any pleading, as the case
may be, with sufficient particularity to enable the
opposite party to
reply to it. The necessity to plead material facts is in
accordance with the general requirement of the
common law. If a
party relies on a fact, and will fail in the claim or defence unless
at the trial that fact is proved, that
fact will be a ‘material
fact’…
A
pleading must allege the facts that are required in order to disclose
a cause of action or defence. A pleading that states
conclusions and opinions instead of material facts, or that draws a
conclusion without alleging the material facts which, if proved,
would warrant that conclusion, is defective”.
[15]
Buchner
& another v Johannesburg Consolidated Investment Co. Ltd
[22]
contains a useful summary of what pleadings should contain:
‘
Court
Rule 18(4)
lays down:
'Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.'
I
emphasise the words 'shall contain a clear and concise statement of
the material facts'.
The
necessity to plead material facts does not have its origin in this
Rule. It is fundamental to the judicial process that the
facts have
to be established. The Court, on the established facts, then applies
the rules of law and draws conclusions as regards
the rights and
obligations of the parties and gives judgment. A summons which
propounds the plaintiff's own conclusions and opinions
instead of the
material facts is defective. Such a summons does not set out a cause
of action. It would be wrong if a Court were
to endorse a plaintiff's
opinion by elevating it to a judgment without first scrutinising the
facts upon which the opinion is based.’
[16]
The Applicant’s pleadings as sought to be amended remain terse
and the details of the cause of action relied upon sparse.
Nevertheless, as a matter of law the Applicant could, at best, never
succeed against the Second Respondent for more than the ‘Maximum
Indemnity’ (as defined in the policy) less the ‘First
Amount Payable’. The proposed amendment does allege that
the
Applicant will contend that the Maximum Indemnity (from which the
‘First Amount Payable’ will of course fall to
be
deducted) will be the amount insured, which she contends is R710
000,00. Whether that amount is correct, and what the first
amount
payable which falls to be deducted therefrom amounts to, are matters
for evidence. Whether the ‘Market Value’
as defined or
the ’Statutory Settlement Balance’ would be less or more
than the Sum Insured, are matters for evidence
and possible defences
available to the Second Respondent to raise. It does not appear to me
to be ‘defences’ which
the Applicant would need to
negative, by alleging in her pleadings what the ‘Market Value’
of the vehicle and the ‘Statutory
Settlement Balance”
are, for her particulars not to be excipiable. To hold otherwise
would in my view impose too onerous
a duty on the Applicant and would
go beyond what pleadings require. If the sum insured is not the
amount for which the Applicant
should succeed, then the basis for any
other lesser amount which the Applicant would be confined to and
which would preclude the
Applicant’s claim as pleaded, should
be pleaded by the Second Respondent and the triable issues in the
trial be broadened
accordingly. I am not persuaded that the amendment
would introduce an excipiable pleading. To the extent that
particulars necessary
for trial might be lacking, these can be
remedied by an appropriate request for further particulars. To the
extent that I might
possibly be erring in my conclusion that the
amendment would not introduce an excipiable pleading, I am mindful of
the comments
of Tebbut AJ in
Crawford-Brunt
v Kavnat and another
[23]
that:
'If
the pleading would appear to be possibly open to exception or even if
the Court is of opinion that the question of whether or
not the
pleading is excipiable is arguable, it would seem to be the more
correct course to allow the amendment.'
[17]
Indeed it has been held that where the supervention of prescription
is not common cause, an application for an amendment is
not the
proper place to deal with it and it should rather be dealt with in a
special plea.
[24]
[18]
Most significantly in conclusion, is that the Second Respondent
cannot really point to any prejudice. The high water mark of
its
argument is that the loss of a defence of prescription points to the
prejudice it will suffer. That submission is however disposed
of by
my finding earlier that no new prescribed cause of action would be
introduced if the amendments are granted.
[19]
Accordingly, the application for leave to amend should be granted.
[20]
The Applicant must pay any wasted costs occasioned by the amendment.
[21]
The opposition to the notice to amend and the application to amend by
the Second Respondent cannot in my view be described
as unreasonable,
such as to justify mulcting the Second Respondent with the costs of
the application. The amendment could very
well have been avoided if
the Applicant had pleaded her causes of action with more care, with
proper reference to the terms of
the policy of insurance, and with
greater attention to detail. She has however been successful in
obtaining leave to amend her
Particulars of Claim. In the exercise of
my discretion on costs it seems appropriate that the Applicant and
the Second Respondent
each be directed to pay their own costs
relating to the application.
[22]
The following order is issued:
(a)
An order is granted in terms of paragraphs
1 and 2 of the Notice of Application in terms of
rule 28(4)
dated 10
September 2014.
(b)
The Applicant and the Second Respondent are
each liable for their own costs of the application.
DATE
OF HEARING: 22 MARCH 2016
DATE
OF DELIVERY: 31 MARCH 2016
APPLICANT’S
COUNSEL: MR. A.W.M. HARCOURT SC
INSTRUCTED
BY: GOVENDER, PATHER & MORGAN
(REF:
MR S. MORGAN).
SECOND
RESPONDENT’S COUNSEL: Mr. M M SWAIN
INSTRUCTED
BY: NORTON ROSE FULBRIGHT
(REF:
MR S KHOZA)
[1]
These are the amendments foreshadowed in her notice in terms of
terms of
Rule 28(1)
dated 30 January 2014.
[2]
The Respondents bear the same numbers as Defendants in the action
pending against them by the Applicant as Plaintiff.
[3]
These are in terms of respectively paragraphs 2 and 3 of her
application in terms of
Rule 28(4).
In paragraph 4 she sought a
costs order also against any other Respondents who may oppose the
application.
[4]
Paragraph 21.3 of the Particulars of Claim.
[5]
Paragraph 24 of the Particulars of Claim.
[6]
The
amendment is one sought consequentially upon the amendment of the
Second Respondent’s plea, a situation often prompted
in
practice when some or other issue is raised in the plea. It is part
of the process of defining the true issues in dispute
between the
parties. A “consequential” amendment is however
not limited to the next pleading which follows
sequentially in the
conventional order of successive pleadings.
[7]
Alpha
(Pty) Ltd v Carltonville Ready Mix Concrete CC & Others
2003 (6) SA 289
(W) para 15.
[8]
A
technical objection was also raised that the application for the
amendment was sought late thus requiring that condonation should
be
sought for the late filing of the application. Nothing was however
said in that regard in argument and in my view correctly
so. Insofar
as may be necessary condonation is granted.
[9]
2016 (1) SA 47 (WCC).
[10]
Paragraph 11.
[11]
1967
(3) SA 632
(D) confirmed as the leading authority by the AD in
Caxton
Ltd v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A) at 565 G-I.
[12]
At 637A – 641G.
[13]
2004
(2) SA 622
(SCA) at 623D- 624A.
[14]
Paragraph 5 at 626H/I and 627 A-B.
[15]
Paragraph 6 at 627 E-F/G, 628 A/B and 628B/C-C.
[16]
At
623D-624A.
[17]
An
amendment will always be allowed when it seeks merely to correct an
incorrect computation of the amount of a claim - see
Wigham
v British Traders Insurance Company Ltd
1963
(3) SA 151
(W); Herbstein & Van Winsen
The
Civil Practice of the High Courts and the Suoreme Court of Appeal of
South Africa
5
th
ed (2009) at 687;
Churchill
v Standard General Insurance Co. Ltd.
1975
(3) SA 503
(W) at 509.
[18]
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering t/a
L.H. Marthinusen
1992
(4) SA 466
(W) at 473 G-H; Herbstein & Van Winsen supra at 687
[19]
1997
(2) SA 1 (A).
[20]
See also
Imperial
Bank Ltd v Barnard and Others
NNO
2013 (5) SA 612
(SCA) at 616 C-F and 612 B-D where it was held that
an amendment would cause prejudice if, for example, its effect would
be to
deprive the other party to the action of the opportunity to
raise an otherwise good plea of prescription. Thus, a late amendment
which has the effect of introducing a new cause of action or new
parties would inevitably cause prejudice to the other party
in the
action, as it would defeat an otherwise good defence of
prescription. However, a plaintiff is not precluded
by prescription
from amending his or her claim, 'provided the debt which is claimed
in the amendment is the same or substantially
the same debt as
originally claimed, and provided, of course, that prescription of
the debt originally claimed has been duly
interrupted'. In
Neon
and Cold Cathode Illuminations (Pty) Ltd v Ephron
1978
(1) SA 463
(A) Trollip JA, referring to
1977 (1) SA 506
(A), said
the following at 474A:
'In
Churchill's case, supra at p. 517B – C, this Court, through
Rumpff, CJ, pointed out that, while the previous summons
need not
set out an unexcipiable cause of action, nevertheless, for its
service on the debtor to interrupt prescription of a
right of
action, the latter must at least be recognisable or identifiable
(‘kenbaar’) in the previous cause of action.'
…
It
follows, in my view, that the amendment sought and granted by the
court below does not have the effect of substituting a different
plaintiff. It merely corrects a misnomer in the first paragraph of
the particulars of claim, where it is not made clear that
the
respondents are not acting in their personal, but representative,
capacities. No new cause of action will be introduced by
the
amendment.…. The claim sought to be enforced in the
original summons and particulars of claim will remain the
same after
the amendment has been effected. It is not in dispute that the
combined summons was served on the appellant. Prescription
was
therefore interrupted in terms of
s 15(1)
of the
Prescription Act.
The
question of prejudice which would otherwise be caused by the
amendment does not arise’.
[21]
‘
(5
th
Ed.) Vol. 1 p 565 – 566..
[22]
1995
(1) SA 215
at 216 G – 216 J.
[23]
1967
(4) SA 308
(C) at 310G.
[24]
1996
(4) SA 1139
(W) at 1142.