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[2010] ZAFSHC 132
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South African National Roads Agency Ltd v Moodley and Others (1509/2010) [2010] ZAFSHC 132 (16 September 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. 1509/2010
In
the matter between:-
THE
SOUTH AFRICAN NATIONAL
ROADS
AGENCY LIMITED
…
...............................................
Applicant
versus
VEKNESHAN
MOODLEY
…...............................................
1
st
Respondent
THE
XHARIEP DISTRICT MUNICIPALITY
….................
2
nd
Respondent
THE
MANGAUNG MUNICIPALITY
…...............................
3
rd
Respondent
THE
MEC: POLICE ROADS AND TRANSPORT
…........
4
th
Respondent
DELIVERED
ON:
16
SEPTEMBER 2010
JUDGMENT
MOCUMIE,
J
[1]
This case is about the setting aside of particulars of claim of three
related matters in terms of Rule 30 of the Rules of Practice
of the
Superior Court Practice under case no's 1509, 1510 and 1511/2010 on
the basis that they do not comply with Rule 18(10).
Since the facts
of the three cases are very similar in that the plaintiffs in the
respective claims were travelling together in
the same vehicle when
the accident occurred and the first defendant is the same institution
in all three matters, the matters have
been set down for adjudication
on a consolidated basis before me. The parties will be referred to as
in the main application.
[2]
The plaintiffs issued summons against the defendant in respect of a
collision that occurred on 1 April 2007 when a vehicle they
were
travelling in hit a pothole in the road and capsized. The plaintiffs
claim damages for the injuries sustained by all the passengers
during
the collision in the globular amount of R900 000,00 under the
headings "Past Hospital and Medical Expenses"; "Future
Medical Expenses"; "Past loss of income"; "Future
loss of income" and "General damages". The
nature of
the plaintiffs' claims, which they allegedly sustained as a result of
the accident, is set out in paragraphs 18.1 to
18.3 of the
particulars of claim as follows:
"18.1
Past Hospital and Medical Expenses R
50
000
As
appears from annexure A' hereto
18.2.
Estimated future medical expenses. ......R
100
000
18.3.
Estimated Past loss of income R
50
000
[3]
Annexed to the particulars of claim, are faint
copies
of
hospital
records in which the alleged injuries of the plaintiffs appear. The
nature of the cause of action is delictual and based
on the
actio
legis aquilia
as
applied in the Roman Dutch law and the South African law as expanded
and applied. See
Minister
van Wet en Orde v Jacobs
1999
(1) SA 944
(OPA) at 948B.
[4]
On 1 April 2010 the first defendant gave notice to the plaintiffs in
terms of Rule 30(2)(b). The first defendant's complaint
reads as
follows:
"1.1
The claim in respect of future medical expenses as per paragraph 18.2
of the Particulars of Claim has not been properly
pleaded as
required.
1.2.
The past loss of income as per paragraph 18.3 of the Particulars of
Claim has not been properly pleaded as contemplated in
terms of Rule
18(10)(c) as it has not been stated how the amount is made up.
1.3.
The amount claimed in respect of future loss of income as per
paragraph 18.4 of the Particulars of Claim has not been properly
pleaded as it does not comply with the provisions of Rule
18(10)(c)(i) since it is not stated how the estimated future loss is
made up and the nature of the work the Plaintiff will in future be
able to do."
[5]
In the notice the defendants invited the plaintiffs to remove the
cause of their complaint within ten days after service of
the notice.
The plaintiffs did not react to this invitation at all and on 12 May
2010 the defendants filed an application in terms
of Rule 30. In the
application they rely on the grounds set out in the application as
follows:
"1.1
The claim in respect of future medical expenses as per paragraph 18.2
of the Particulars of Claim has not been properly
pleaded as required
in terms of Rule 18(10) (a) as it has not been stated how these costs
and expenses are made up.
1.2.
The past loss of income as per paragraph 18.3 of the Particulars of
Claim has not been properly pleaded as contemplated in
terms of Rule
18(10)(c) as it has not been stated how the amount is made up.
1.3.
The amount claimed in respect of future loss of income as per
paragraph 18.4 of the Particulars of Claim has not been properly
pleaded as it does not comply with the provisions of Rule
18(10)(c)(i) since it is not stated how the estimated future loss is
made up and the nature of the work the Plaintiff will in future be
able to do."
[6]
In his Heads of Argument Mr. Khan, on behalf of the plaintiffs,
raised the point that the application in terms of Rule 30
was filed
out of time after more than ten days had expired. Both Mr. Khan and
Mr. Cilliers, on behalf of the defendants, however
came to an
agreement that this issue should not be pursued any further.
[7]
The relief sought by the defendants in the Rule 30 application reads
as follows:
"1.
That the plaintiffs summons and particulars of claim in case number
1509/2010 [1510/2010 and 1511/2010] is set aside
as a whole,
alternatively that paragraphs 16.2, [18.2; 181.2 and 18.3 of the
particulars of claim are set aside.
2.
That the plaintiff is ordered to pay the costs of this application."
*
[8]
In their answer to the defendants' complaint, the plaintiffs answer
that:
"9.4
If one has regards to the particulars of claim, the amounts set out
are in respect of
estimated
future
loss of expenses. The claim at this stage is simply an estimate and
will need to be properly and fully quantified in due
course by the
provision of medico-legal reports in this matter.
9.5.
It would be improper and negligent of the Plaintiff's attorneys to
expend vast amounts of monies on medicolegal reports
at this
stage when the question of liability..
9.6.
As this is a delictual claim and no interest runs against the
Applicant, Applicant simply cannot claim prejudice in this
respect.
9.7.
Once the Plaintiff has undergone medico-legal examinations, notices
in terms of the relevant Uniform Rules of Court will
be served on
the Defendants and full details and particularity provided in
respect of the estimated costs
9.8.
The Applicant further complains in respect of the Plaintiff's claim
for past loss of income as set out in paragraph 18.3
of the summons.
9.9.
I again point out that this is an
"estimated
"
claim
as the amount is subject to quantification by the relevant experts
being an industrial psychologist and actuary. Similarly,
there can
be no prejudice to the Applicant at this stage as there is no
interest running in this matter and the full particularity
of this
claim will be provided once the medico-legal reports are to hand.
9.10.
The Applicant further complains in respect of future loss of income.
Similarly, this is an
"estimate
"
and
the full particularity will be provided once the various
medicolegal reports are to hand.
9.11.
I respectfully submit that the Applicant can have no cause of
complaint or prejudice at this stage as the claim in respect
of
liability has not been disposed of and it is unclear whether the
Applicant is in fact liable to the Plaintiff or not.
9.12.
The full information required by the Applicant will be provided in
due course once the Plaintiff has undergone medico-legal
examinations in terms of the Rules of Court."
[9]
Mr Khan submitted, on behalf of the plaintiffs, that in matters of
this nature the court will ordinarily determine the issue
of
liability first and the plaintiffs do not want to incur any costs in
respect of the determination of quantum by obtaining
expert reports
that substantiate their claims at this stage. He submitted further
that the current action is delictual in nature
and no interest is
claimed against the defendants as a result the defendants will not
be prejudiced. He also submitted, when
such reports are available
the defendants will be provided with same.
[10]
Mr. Khan argued that the plaintiffs have more to lose than the
defendants in that:
10.1
The claims would have lapsed if the plaintiffs did not institute
their claims in the unsubstantiated form that they were
as the
claims would have prescribed by the time such reports were made
available;
10.2.
The defendants were well aware of the plaintiffs' predicament and
potential prejudice and deliberately instituted these
applications;
10.3.
The defendants can merely plead over once more particulars become
available; and
10.4.
The plaintiffs had a right to access to courts enshrined in terms of
section 34 of the Constitution of the Republic of South
Africa Act
108 of 1996. If this Court upheld the defendants' applications this
would virtually shut the plaintiffs' door and
they will be without
any recourse.
[11]
Rule 18(10) reads as follows:
"(10)
A plaintiff suing for damages
shall
set
them out in such manner as will enable the defendant reasonably to
assess the quantum thereof:
Provided
that
a plaintiff suing for damages for personal injury
shall
specify
his date of birth, the nature and extent of the injuries, and the
nature, effects and duration of the disability alleged
to give rise
to such damages, and
shall
as far as practicable
state
separately what amount, if any, is claimed for-
(a)
medical costs and hospital and other similar expenses and how these
costs and expenses are made up;
(b)
pain and suffering, stating whether temporary or permanent and which
injuries caused it;
(c)
disability in respect of-
(i)
the earning of income (stating the earnings lost to date and how the
amount is made up and the estimated future loss and the
nature of
the work the plaintiff will in future be able to do);"
(Underlining
for emphasis)
[Erasmus
et
ah
Superior
Court Rules of Practice,
B1-129
-130 and cases cited.]
[12]
It is a basic requirement in civil cases that the defendant must
have a clear enough exposition of the plaintiff's case to
enable it
to take instructions from the client and file an adequate response
to the claim in the form of a plea. The plea may
consist of a denial
seriatim
of
all the averments in the particulars of claim (a bare denial), as
long as there is no ambiguity in such denial. See
Venter
and Others
NNO
v
Barrstt Venter and Others
NNO
v
Wolfsberq Arch Investments
2
(Pty)
Ltd
2008
(4)
SA 639
(C) at 644 G.
[13]
Rule
18(4)
provides
that every pleading must be in a clear and concise statement. The
object of the pleadings being to define the issues
so as to enable
the other party to know what cases he has to meet. See
Beira
v Beira
1990
(3)
SA
802
(W)
at
809
B.
[14]
The defendant is however not entitled to insist on specific
particulars and information which would enable it to make precise,
measured and accurate calculations of the plaintiffs damages nor can
it insist on an abridged exposition of the plaintiff's proposed
evidence in support of the various claims.
See
Minister
van Wet en Orde v Jacobs
,
supra
at
952 i -953 c.
[15]
For the defendants to succeed in their application in terms of Rule
30 they must show prejudice on their part. Mr. Khan has
submitted
that the defendants have failed to show prejudice at all.
[16]
In
Sasol
Industries (Ptv) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992
(4)
SA
466
(W) at 471 H - J; 472 A - B the court stated the following where
estimates were claimed:
"I
do
not think that it is possible to generalise about the particulars
that should be furnished of the cost of restoration in a
case like
the present. It is obviously desirable that the defendant should be
informed of the cost, estimated or actual, of the
several items of
restorative work in order that he may be in a position to tender or
plead in excuse where this is possible.
On the other hand, in some
cases it may be unreasonable to require a separate allocation of
different items of work because in
the ordinary course they would be
done together as a single job. If that is the position it is open to
the plaintiff to say so.
In the present case the plaintiff has
stated that the £450 is an estimate but it is not reasonable
to suppose that an estimate
of the cost of the several different
kinds of repair or replacement work to be done was arrived at
without itemisation. The £450
must be a lump sum, a total made
up of a number of items which the plaintiff will seek to establish
at the trial. The plaintiff
does not set up the case that he is not
in a position to analyse the sum of £450.
His
statement that it is an estimate does not excuse him from giving
further particulars; unless it is a pure guess it must be
an
estimate based on a collection of detailed estimates.
I
find it unnecessary to decide whether the damages claimed are
"general" or "special"; the substance of the
matter is that the details of how the £450 is made up ought,
if possible, to be in the defendant's hands at the pleading
stage,
and there is no reason to doubt that the plaintiff is in a position
to supply them."'
(Underlining
for emphasis)
I
agree with these remarks.
[17]
There is no exhaustive test to determine whether a pleading contains
sufficient particularity for the purposes of the sub-rule
but it is
essentially an issue of fact. In
Nasionaie
Aartappel Kooperasie Bpk v
Price
Waterhouse
Coopers
Inq
en Andere
2001
(2)
SA
790
(T)
at
798
F - 799 J
the
court
held that a pleading contains sufficient particularity if it
Identifies and defines the issues in such a way that it enables
the
opposite party to know what they are. What sufficient particularity
means in each case will be determined by its own particular
circumstances.
[18]
In these three matters can it be said that the particulars of claim
are of sufficient particularity and in compliance with
the
prerequisites set out in Rule 18(10)? In my view they are not. The
requirements of sub-rule 18(10) and the purpose they serve
are
different from those of sub-rule (4). In
Grindrod
(Ptv) Ltd v Delport and Others
1997
(1) SA 342
(W)
at
346 F - G the court held that:
"However,
inasmuch as the learned Judge appears to have coupled the provisions
of Rule 18(4) with those of Rule 18(10), I
must respectfully
disagree with him. It seems to me that these two subrules have
entirely different functions and are not in
any way related.
Rule
18(4) relates to the pleading of facts which make up either a claim,
defence or answer. Here the requirement is that such
facts be
pleaded with 'sufficient particularity to enable the opposite party
to reply thereto "'
[19]
Sub-rule 18(10) makes it clear that greater particularity is
required in claims for damages for personal injuries. It demands
additional requirements in respect of personal injuries as compared
to other damages. This provision has done away with the uncertainty
which prevailed prior to the substitution of the sub-rule in 1987.
See
Du
Plessis
Diamante v De Bruvn Broers
1967
(3) SA 255
(GW);
Rondalia
Versekerinqskorporasie van Suid Afrika Bpk v Die
Onqevallekommissaris
1968
(4) SA 755
(N) at 758 H -759 A;
Rondalia
Versekerinqskorporasie van Suid Afrika Beperk v Mavundla
1969
(2) SA 23
(N) at 27 G,
[20]
It is now accepted that if the pleading does not comply with the
provisions of Rule 18(10) requiring specific particulars
to be set
out therein, the prejudice required for the setting aside of the
pleading in terms of Rule 30 has
prima
facie
been
established. See Sasol Industries (Pty)
Ltd,
supra,
at
470 H -
I.
This
is entrenched in Rule 18(12) which provides that:
"
(12) If a party fails to comply with any of the provisions of this
rule, such pleading shall be deemed to be an irregular
step and the
opposite party shall be entitled to act in accordance with rule
30."
[21]
In my view the particulars of claim in all three matters fall short
of the prerequisites laid down in sub-rule 10 in that
the defendants
cannot reasonably estimate the damages in the way in which they are
coached. In terms of Rule 18(10)(c), the plaintiffs
must show
"the
earning of income (stating the earnings lost to date and how the
amount is made up and the estimated future loss and
the nature of
the work the plaintiff[s] will in future be able to do);"
[22]
I
can find no reason why it is not
"reasonably
practicable"
for
the plaintiffs to state the work the plaintiffs did previously or
are doing currently; how much they earned and what will
the position
be likely in the future. This could never be a problem because it is
information only the plaintiffs are privy to
without the assistance
of or inputs from the experts. Rule 35(12) and (14) do not solve and
address the complaint of the defendants
at all as I indicated the
subrule demands
more
particularity in its form now. Mr Khan's submission, on behalf of
the plaintiffs, that the court will be confined to the
determination
of liability only at this stage and determine quantum at a later
stage is not correct because the action is undivided.
The fact that
the plaintiff can apply for separation of issues in terms of Rule
33(4) is a totally different issue that can have
no bearing on the
question whether the plaintiffs have complied with Rule 18(10) or
not.
[23]
The argument Mr. Khan raised, the results of this application, that
if the application is upheld the plaintiffs will be denied
their
right to access to courts provided for in section 34 of the
Constitution is a nobel idea but one not justified in the
circumstances of this case. Rules of Practice are made not only for
compliance, but for consistency and for all parties to know
precisely what is expected of them so as to promote speedy
finalisation of the matters before the courts and importantly to
enable the other party to prepare itself adequately and timeously
without anticipating any surprises along the way. in my view
the
failure to provide clear and sufficient particularity of the
particulars of ciaim on its own is
prejudicial
to the defendants for numerous reasons including the investigation
and presentation of their case.
[24]
Taking in to account what I have set out above I find that the
plaintiffs have not complied with the prescriptive provisions
of
Rule 18 (10) and that their combined summons in which their
particulars of claim are incorporated are deemed to be an irregular
step as contemplated in Rule 30 (1).
[25]
In the circumstances I make the following order.
ORDER:
1.
Paragraphs
18.2,
18.3
and
18.4
of
the particulars
of
claim
in case number 1509
/2010,
1510
/2010
and
1511
/2010
are
set aside.
2.
The plaintiffs are granted leave to amend the particulars of claim,
in the matters referred to in para 1 above, within 30 days
of this
order.
3.
The plaintiffs are ordered to pay the costs of this application.
B. C. MOCUMIE, J
On
behalf of the applicant:
Adv.
H
.J.
Cilliers
Instructed
by: Honey Attorneys BLOEMFONTEIN
On
behalf of the defendant/ respondents
Adv.
Z. Khan Instructed by: D A Honiball Attorneys
c/o
Matsepe Inc
BLOEMFONTEIN