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[2015] ZAFSHC 78
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Pane v MEC: of Department of Health Free State Province (131/2013) [2015] ZAFSHC 78 (16 March 2015)
IN
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case Number:
131/2013
In the matter
between:
BONISWA
PANE
….......................................................................................................................
Applicant
and
MEC: OF
DEPARTMENT OF HEALTH
FREE
STATE PROVINCE
…...................................................................................................
Respondent
HEARD
ON
:
26
FEBRUARY 2015
DELIVERED
ON
:
16
MARCH 2015
MOCUMIE, J
[1]
The plaintiff and defendant are parties in case 131/2013 in which
plaintiff has issued summons against defendant for a specified
amount
of damages she allegedly suffered as a result of defendant’s
employees’ negligence during a surgical operation
she underwent
whilst admitted at Manapo Hospital in Phuthaditjaba, Free State on or
about 24 January 2010.This is an application
to seek an order from
this court for leave to amend plaintiff’s particulars of claim
in terms of Rule 28 of the Rules of
this court.
[2] In its objection
to the application the defendant simply states in its answering
affidavit:
‘
4.2
The plaintiff is seeking an amendment to introduce a new cause of
action. This new cause of action is stated in paragraph 5E
of the
plaintiffs notice in terms of Rule 28(1) and (2).This cause of action
was never mentioned or relied on in the particulars
of claim and has
therefore prescribed...
4.3 [T]he amendment
sought by the plaintiff would render the particulars of claim
excipiable.The plaintiff cannot simply plead that
‘the
defendant’s medical negligence is gleaned from Manapo hospital
records’
[3]
In
Commercial
Union Assurance Co Ltd v Way mark
1
the
court stated:
‘
The
principles applicable to this issue have been set out in numerous
cases. In
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A) Corbett CJ stated at 565G:
'Although
the decision whether to grant or refuse an application to amend a
pleading rests in the discretion of the Court, this
discretion must
be exercised with due regard to certain basic principles
.'
The
following statement by Watermeyer J, as he then was, in
Moolman
v Estate Moolman and Another
1927
CPD 27
at 29 has been accepted and followed as reflecting the
situation in our law:
'The
question of amendment of pleadings has been considered in a number of
English cases. See for example:
Tildesley
v Harper
(10
ChD 393)
;
Steward
v North Met Tramways Co
(16
QBD 556)
and 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 it is sought to
amend was
filed.'
In
Rosenberg v Bitcom
1935
WLD 115
at 117 Greenberg J, as he then was, stated:
'Although
it has been stated that the granting of the amendment is an
indulgence to the party asking for it, it seems to me that
at any
rate the modern tendency of the Courts lies in favour of an amendment
whenever such an amendment
facilitates
the proper ventilation of the dispute between the parties.'
In
Zarug v Parvathie
NO
1962
(3) SA 872
(D) at 876C Henochsberg J held:
'An amendment cannot
however be had for the mere asking. Some explanation must be offered
as to why the amendment is required and
if the application for
amendment is not timeously made, some reasonably satisfactory account
must be given for the delay.'
Caney
J stated in
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
and Another
1967
(3) SA 632
(D) at 641 A: 'Having already made his case in his
pleading, if he wishes to change or add to this, he must explain the
reason
and show
prima
facie
that
he has something
deserving of consideration, a triable issue
;
he cannot be allowed to harass his opponent by an amendment which has
no foundation. He cannot place on the record an issue for
which he
has no supporting evidence, where evidence is required, or, save
perhaps in exceptional circumstances, introduce an amendment
which
would make the pleading excipiable.'(My
emphasis)
And
at 639B:
'The mere loss of
the opportunity of gaining time is not in law prejudice or injustice.
Where there is a real doubt whether or not
prejudice or injustice
will be caused to the defendant if the amendment is allowed, it
should be refused, but it should not be
refused merely in order to
punish the plaintiff for his neglect.'
And at 642H:
'In my judgment, if
a litigant has delayed jn bringing forward his amendment, this in
itself, there being no prejudice to his opponent
not remediable in
the manner I have indicated, is no ground for refusing the
amendment.'
In
Benjamin v Sobac
South African Building and Construction (Pty) Ltd
1989
(4) SA 940
(C) at 958B, Selikowitz J stated:
'Where
a proposed amendment will not contribute to the real issues between
the parties being settled by the Court, it is, I think,
clear that an
amendment ought not be granted. To grant such amendment will simply
prolong and complicate the proceedings for all
concerned and must, in
particular, cause prejudice to the opposing party who will have to
devote his energy and expend both time
and money in dealing with an
issue, the resolution of which may satisfy the needs (or curiosity)
of the party promoting it, but
which will not contribute towards the
adjudication of the genuine dispute between the parties. Mr
Seligson
urged
me to adopt this guideline for the exercise of my discretion here
where the applicant applies to amend his cause of action.
It is, in
my view, necessary in this application that I consider whether or not
the claim for relief under s 32(2) is competent
before I grant the
amendment. If the claim is, in the circumstances of this case, not in
law a viable claim I would be doing not
only the respondent but also
the applicant an injustice by granting the amendment.'
The principles
enunciated in the abovementioned cases can be summarised as follows:
1. The Court has a
discretion whether to grant or refuse an amendment.
2. An amendment
cannot be granted for the mere asking; some explanation must be
offered therefor.
3.
The applicant must show that
prima
facie
the
amendment 'has something deserving of consideration, a triable
issue'.
4. The modern
tendency lies in*favour of an amendment if such 'facilitates the
proper ventilation of the dispute between the parties'.
5.
The party seeking the amendment must not be
mala
fide.
6. It must not
'cause an injustice to the other side which cannot be compensated by
costs'.
7. The amendment
should not be refused simply to punish the applicant for neglect.
8. A mere loss of
time is no reason, in itself, to refuse the application.
9. If the amendment
is not sought timeously, some reason must be given for the delay.’
[4] The facts to
which these principles must be applied are that subsequent to the
closure of the pleadings and pretrial conference
being held, on
further consultation with her attorney, the latter arranged that she
sees a medical specialist who will assist during
her oral evidence in
court when the matter goes on trial. The said doctor was provided
with all the medical records relating to
the incident that occurred
to the plaintiff on 23 January 2010 and the subsequent dates she went
to the hospital, which documents
have been discovered, in the light
of the doctor’s report, it has become necessary to further
elaborate to the court on all
the information necessary to prove her
case in a more simplistic manner flowing from the historical date of
the medical negligence
caused to her by respondent’s employees
on 23 January 2010 and subsequent date.
[5] Although the
original particulars of claim did not contain allegations in each
paragraph that defendant was consequentially
liable for the
negligence of its employees after January 2010, there are
introductory paragraphs that made it clear that this was
the case.
‘
3.
On or about 23
ra
January 2010 the plaintiff bled profusely as a result of a
miscarriage of her pregnancy.
4. Resultant from
her stated medical ill condition, Manapo hospital at Phuthaditjaba
admitted her [for] medical treatment.
5. On or about the
24
th
January 2010, the defendant’s hospital, Manapo
discharged her albeit still having sharp pains from her swollen
stomach.’
[6] On the fact
presented I must agree with plaintiff, the amendments sought do not
raise a new cause of action as alleged by defendant.
The amendments
seek to simplify the case according to the chronology of facts in
line with the medical records of defendant’s
hospital and to
facilitate the proper ventilation of the dispute between the parties.
The defendant, in its plea, admits that the
same cause of action
indeed occurred on 23 January 2010 and continued to the subsequent
dates. The pleadings cannot be rendered
excipiable as the defendant
suggests. The amendments do not bring about a new claim.
[7] In an
application of this nature, it is important to distinguish between an
amendment introducing a new cause of action (i.e.
right of action)
and one which merely introduces fresh and alternative facts
supporting the original right of action as set out
in the cause of
action. An amendment which introduces a new claim will not be allowed
if it would resuscitate a prescribed claim
or defeat a statutory
limitation as to time.The proposed contentious paragraph (5E) is
consequential to the same cause of action
which started on 23 January
2010 which defendant admits occurred as alleged and that it continued
until 11 February 2010. L. consequently
cannot find that it has
prescribed.
[8] In so far as
paragraph 8 of the proposed amendment is concerned, as correctly
conceded by plaintiff, it is indeed vague and
should be struck out on
that basis.
[9] In the result
the following order is granted.
ORDER
1. Application to
amend the particulars of claim as set out in the Notice in terms of
Rule 28 (1) and (2) of the Superior Courts
Practice Rules is granted.
2. Plaintiff is
granted leave to amend her particulars of claim as set out in the
Notice referred to in paragraph 1 of this order,
excluding paragraph
8 of the Notice referred to.
3. Costs to be costs
in the cause.
B.C. MOCUMIE, J
On behalf of the
applicants: Mr Ponoane
Instructed by:
Ponoane Attorneys
BLOEMFONTEIN
On behalf of the
respondents: Adv. B.S Mene
Instructed by:
State Attorneys
BLOEMFONTEIN
1
Commercial
Union Assurance Co Ltd v Waymark
1995
(2) SA 73
(TK) at 76-77.