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2002
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[2002] ZAFSHC 7
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Maseko v Auto & General Insurance CO. Ltd (149/2001) [2002] ZAFSHC 7 (25 July 2002)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
Nr : 149/2001
In
the matter between:
NA
MASEKO
Applicant
and
AUTO
& GENERAL INSURANCE CO LTD
Respondent
_____________________________________________________________
HEARD
ON:
19
JUNE 2002
_____________________________________________________________
HEARD
BY:
HANCKE
et MUSI JJ
_____________________________________________________________
DELIVERED
ON:
25
JULY 2002
_____________________________________________________________
JUDGMENT
BY:
MUSI
J
_____________________________________________________________
Introduction
The
appellant sued the respondent for payment of the amount of R33 448,63
being for damages suffered by the appellant as a result
of damage
caused to the appellantâs motor vehicle in a road collision. The
motor vehicle concerned was insured by the respondent
and the claim
was based on the relevant insurance contract. The court a quo
dismissed the action with costs. The appellant now
appeals against
the judgment of the court a quo.
Applications
The
appellant has directed two applications to this Court. The first
application is for condonation of the late filing of a bundle
of
documents comprising exhibits handed in during the trial but which
were not incorporated in the record prepared for the appeal.
The
second application is for amendment of the appellantâs papers in
order to substitute Mrs L Maseko for the appellant. It should
be
noted that in the summons the plaintiff is cited as NK Maseko, a
female person, but Mr NA Maseko testified at the hearing that
he is
the plaintiff and he applied, albeit belatedly after the conclusion
of the evidence, for amendment of his pleadings to reflect
his
correct names. Such application was rejected by the magistrate.
It
is quite clear that Mr NA Maseko was in fact the plaintiff in the
matter and was erroneously cited as NK Maseko. In that sense
the
application to amend was merely to correct a misnomer and was wrongly
dismissed. The dismissal is however, of no consequence
in view of
the manner in which the appeal comes before us. In this judgment any
reference to the plaintiff or appellant shall be
reference to Mr NA
Maseko, because for all practical purposes he is the plaintiff and
appellant in these proceedings and he in fact
signed the power of
attorney authorising this appeal.
An
affidavit has been filed in support of the application for
condonation of the late filing of the bundle of documents and an
explanation
given for the failure to annex the documents to the
record and condonation will not result in any prejudice to the
respondent. It
is desirable moreover that the full record be before
the court. This application is therefore granted right away and
there shall
be no order as to costs.
The
application for amendment stands on a different footing and it was
common cause that its fate will be decisive of the entire appeal.
I
now deal with it. It is settled law that amendment of pleadings will
usually be allowed unless the application to amend is
mala
fide
or the amendment would result in prejudice to the other party which
cannot be cured by an appropriate order as to costs. That includes
amendments for substitution of parties, even where a completely
different party is substituted and such application can be brought
even on appeal as in this case. See
LUXAVIA
(PTY) LTD v GRAY SECURITY SERVICES (PTY) LTD
2001(4) SA 211 (WLD) at p 216-220 and the cases cited therein. The
crux of the matter therefore is whether any of the two limitations
to
the grant of an amendment referred to above (irremediable prejudice
and mala fides) are present in the instant case.
Lack
of
mala
fides
Mr
De Wet for the respondent, submitted that a substantive application
supported by affidavits should have been filed. He contended
that
this was necessary as there was an onus on the appellant to show that
his conduct in relation to the application was
bona
fide
.
Indeed there are a number of issues that the appellant needed to
explain.
Firstly,
the claim is based on a written contract of insurance (exhibit A).
It clearly states that the insured is Mrs L Maseko.
Yet the
appellant insisted on issuing summons in his own name. If he had any
misconception and thought that his conversation with
Mrs Van Zyl as
per exhibit D constituted a separate insurance contract in respect of
the damaged Volkswagen Golf motor vehicle, that
should have been
dispelled with the production of the full contract. The contract
reflects the Golf as the second vehicle insured.
At any rate the
appellant was legally represented and any conscientious, diligent
attorney would not issue summons in a matter of
this nature without
first perusing the relevant contract. Worse still, even when the
respondent disputed the plaintiffâs
locus
standi
and pleaded that it contracted not with NK Maseko but with Mrs L
Maseko the appellant persisted that he was the insured. He crowned
that by persisting under oath with that averment and then sought an
amendment to reflect his correct names. This was a conscious,
deliberate assertion made in the face of clear evidence to the
contrary, namely, that he was no party to the contract with the
defendant.
Quite clearly the appellant and his lawyers bungled his
case. He was duty bound to come clean and explain this. As matters
stand,
no such explanation has been forthcoming. Indeed counsel for
the appellant could not give any nor was he expected to do so from
the bar.
Secondly,
there needed to be an indication that Mrs L Maseko consented to being
substituted. In the absence of a confirmatory affidavit
from her,
she should have been joined in the application. Compare
BARRIE
MARAIS & SEUNS AND ANOTHER v ELI LILLY (SA) (PTY) LTD AND OTHERS
1995(1) SA 469 (WLD) where the proposed new party was joined. The
involvement of Mrs L Maseko may not be as straight forward as
suggested by Mr Gilliland for the appellant. He submitted that her
substitution would not cause any complications in the matter
because
it was always the respondentâs case that she was the insured and
its defence on the merits would be unaffected by the substitution.
It should be noted that the respondent repudiated liability and
alleged that it refunded to Mrs Maseko all the premiums paid after
the collision. It may well be that she has accepted the amount of R3
374,08 allegedly paid into her account and thus accepted repudiation
of the contract and that may explain why the appellant decided not to
involve her in the case in the first place.
Ex
facie
the record, the conduct of the appellant in persisting with
prosecution of the case in his own name was reckless and
mala
fide
and in the absence of a full explanation the present application
cannot be regarded as
bona
fide
.
Irremediable
prejudice
One
of the grounds upon which respondent opposed the application was that
the proposed amendment would deprive it of the defence of
prescription and that the resultant prejudice would be irremediable.
It was common cause that the appellant had no cause of action
against
the respondent and that is precisely why it is sought to substitute
Mrs L Maseko. In other words, the appellant was no creditor
of the
respondent and since the summons herein was not issued by the
creditor as defined in
section 51(1)
of the
Prescription Act No 68 of
1969
, the running of prescription was not interrupted. The instant
application for amendment would have had the effect of interrupting
prescription but it is too late as the claim has already prescribed.
See
STANDARD
GENERAL INSURANCE CO LTD v ELI LILLY (SA) (PTY) LTD
1996(1) SA 382 (WLD);
ASSOCIATED
PAINT & CHEMICAL INDUSTRIES (PTY) LTD T/A ALBESTRA PAINT AND
LACQUERS v SMIT
2000(2) SA 789 (SCA). (The claim herein prescribed during July 2001
after the expiry of a period of three years from the date of
repudiation.) In the circumstances the amendment cannot be granted.
There
is a further ground on which this application could be dismissed.
The appellant had no
locus
standi
.
Although this issue was not formally pleaded, it was nonetheless
duly canvassed at the hearing and it ought to be regarded as an
issue
that was to be decided between the parties. Compare
BRITISH
DIESELS LTD v JERAM AND SONS
1958(3) SA 605 (NPD) at 606C. Indeed the magistrate decided upon
that issue when she found that the appellant had lied when he said
that he was the insured and that the correct contractant was Mrs L
Maseko. The effect of the proposed amendment would be to re-open
an
issue that has already been decided upon. Compare
SCHMIDT
PLANT HIRE (PTY) LTD v PEDRELLI
1990(1) SA 398 (D&CLD) at 407A-D.
In
conclusion, I must point out that the application for amendment was
brought at the last minute at the instance of Mr Gilliland.
He was
candid that that was the only way in which the claim could be
resurrected and acknowledged that the appellantâs case had
been
bungled. I have sympathy for counsel but the appellant is the author
of his own misery. He is, however, not without a remedy.
If the
fault is not his, he can consider recovering his damages from his
Kroonstad attorneys on the basis of professional negligence.
The
application for amendment is dismissed and so is the entire appeal
and the appellant, Mr NA Maseko, is ordered to pay the costs
of both
the application and the appeal.
_________________
HM
MUSI, J
I
CONCUR:
_________________
SPB
HANCKE, J
On
behalf of the Applicant : Adv JG Gilliland
Instructed
by
Naudes
On
behalf of the Respondent : Adv PJT de Wet
Instructed
by
Symington
& De Kok
/Jacobs