About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 38
|
|
Rakhojane v Member of the Executive Council: Department of Health, Northern Cape Province (CA & R 22/2022) [2024] ZANCHC 38 (19 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY
Not
Reportable
Case
No: CA & R 22/2022
In
the matter between:
GEORGE
RAKHOJANE
APPELLANT
And
MEMBER
OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF HEALTH, NORTHERN CAPE PROVINCE
RESPONDENT
Neutral citation:
Rakhojane v Member of the Executive Council: Department of
Health, Northern Cape Province
(Case no CA & R 22/22) (19
April 2024)
Coram:
PHATSHOANE AJP, LEVER and NXUMALO JJ
Heard:
20
November 2023
Delivered:
19 April
2024
Judgment
PHATSHOANE
AJP
Introduction
[1]
This appeal, with leave of the Supreme Court of Appeal, is against
the whole of the judgment
and order of the court a quo (Mamosebo J)
in which
it refused condonation for the late
filing of the amended particulars of claim; set aside the appellant’s
amended particulars
of claim as an irregular step in the proceedings
and struck out certain paragraphs of the appellant’s answering
affidavit
to the Rule 30(1) application.
Application for
condonation and reinstatement of the appeal
[2]
The appellant failed to comply
with rule 49
(6)
(a)
of
the Uniform Rules of this court
which
requires that within sixty days, after delivery of a notice of
appeal, an appellant must make written application to the registrar
for a date for the hearing of the appeal and rule 49(7)(a) which
provides in part that simultaneously with the application for
a date
for the hearing the appellant file with the registrar three copies of
the record on appeal and furnish two copies to the
respondent. The
notice of appeal was filed on 29 September 2021, thus the record of
appeal ought to have been filed on 23 December
2021.
[3]
An incomplete record, which was filed on 09 May 2022, constitutes of
oral argument
by counsel in the court a quo in respect of the main
proceedings of 14 August 2020. A supplementary volume 5 of the
record, which
constitutes of oral argument by counsel in the court a
quo with regard to the application for leave to appeal heard on 05
May 2021,
was filed on 10 June 2022. Therefore, the appellant seeks
condonation for non-compliance and the reinstatement of the appeal.
[4]
In terms of rule 49(7), where
the
record is not ready for filing, the registrar may accept an
application for a date of hearing without the necessary copies
if—(i) the application is accompanied by a written
agreement between the parties that the copies of the record
may be
handed in late; or (ii) failing such agreement, the
appellant delivers an application together with an affidavit
in which
the reasons for his omission to hand in the copies of the record in
time are set out and in which is indicated that an
application for
condonation of the omission will be made at the hearing of the
appeal. The appellant did not comply with rule
49(7)
his reason being that
he could not
apply for the
hearing date because the record had been incomplete.
[5]
The application for condonation and reinstatement of the appeal was
brought on 05
May 2023, approximately one year and five months later,
after the appeal had lapsed and had been struck off the roll. In the
application
for the reinstatement of the appeal the appellant submits
that he filed an application for condonation of the late filing of
the
record on 13 June 2022, soon after delivery of the complete
record of the proceedings on 10 June 2022. I will accept this
as the
respondent,
the Member of the Executive Council, Department of
Health, Northern Cape,
did not controvert the
averment. However, that application was not placed before us for
consideration as part of the record of
this appeal. Clearly, there
had been some procedural blunders on the part of the appellant’s
attorneys which the court a
quo correctly labelled as “a
lackadaisical approach” in attending to this matter. The
frequency and flagrancy of the
flouting of the rules of this court
ought to be strongly deprecated.
[6]
Needless to say, the efforts the appellant’s attorney made in
an attempt to
obtain the full record of the proceedings, albeit an
exercise in futility, cannot be ignored. As already alluded to, the
transcript
of proceedings he sought to file comprised of oral
arguments by counsel which ordinarily ought not to form part of the
appeal record.
The appellant’s attorney explained the
difficulties he encountered in securing the complete record by
referring to several
contemporaneous exchanges at various intervals
between his office and the transcription service. In my view, regard
being had to
this, the delay associated with the procurement of the
record has been adequately explained.
[7]
With regard to the delay in applying for the hearing date the
appellant’s attorney
explained that he laboured under the
misapprehension that the record had to be filed first prior to the
application. Rule 49(7)(a)
plainly sets out the time-frame within
which the application for the hearing date is to be made. It is so
that, for proper judicial
case-flow management, the registrar had
advised the parties that, until the record was in order, she was
unable to allocate the
hearing date. In the end, the overriding
consideration is the interest of justice which, in my view, demands
that, in the present
case, the application for condonation and the
reinstatement of the appeal be upheld. A further reason for the
application to be
granted is that the appeal itself has reasonable
prospects of success.
Background
[8]
On 21 October 2016 the appellant instituted an action for damages
against the respondent
for injuries sustained as a result of the
alleged medical negligence which caused him to lose his eyesight. In
setting out his
cause of action the appellant pleaded, in part, as
follows in his original particulars of claim dated 20 October 2016:
“
5.
On the 24
th
of November 2015, the plaintiff went to Galeshewe Day Clinic Hospital
in Kimberley for treatment of a severe and persistent headache,
of
which he was experiencing such a grave headache for the first time.
6.
Upon arrival at Galeshewe Day Clinic Hospital the plaintiff was
attended
to upon by a nurse who then referred him to the medical
doctor who was on duty on the aforementioned date.
7.
Whilst the medical doctor was examining the plaintiff at Galeshewe,
the plaintiff
got a seizure and thereafter fell down from the
hospital bed. The medical doctor then gave the plaintiff an injection
on the back
and commanded him to sit on a wheelchair while he called
an ambulance.
8.
At all material times, there was no further medical examination or
check-ups
done by the doctor whilst the plaintiff was seated on the
wheelchair for hours until he was transferred to Kimberley Complex
Hospital
by ambulance.
9.
Despite the plaintiff being referred to Kimberley Complex Hospital
with
a referral letter instructing the hospital staff to treat him on
an emergency basis, the plaintiff was put in the waiting room at
the
casualty department for long hours, starting from 14h00 until late
hours of the night.
10.
On the evening of the 25
th
of November 2015, the plaintiff
was taken for a CT Scan by medical doctor who was on duty, but it was
only after midnight that
the plaintiff was taken to Intensive Care
Unit (ICU). By the time the plaintiff was taken to ICU, his condition
had already deteriorated
as the medical staff had neglected to treat
him on an emergency basis albeit being aware that he (plaintiff) was
an emergency case
and in this regard also being informed by the
plaintiff’s wife that his condition was worsening while the
plaintiff was kept
waiting at the Casual Department.
11.
On the early hours of the 26
th
of November 2015, the
plaintiff was taken for a surgical head operation for the bleeding
which had developed from inside his brain.
12.
As a result of the said surgical operation conducted by Kimberley
Hospital Complex, the
plaintiff lost his vision and became
permanently blind until to date.
13.
The following week after the 26
th
of November 2016, the
plaintiff was referred to an Ophthalmologists at Kimberley Complex
Hospital who found that the plaintiff’s
head operation affected
his optic nerve and cerebral cortex.
14.
The Ophthalmologists further confirmed that the surgical operation
done by Kimberley Complex
Hospital caused the plaintiff to have some
visual disturbances with fluctuating visual activity causing the
plaintiff to lose his
vision and thus becoming permanently blind to
date.
15.
The plaintiff was discharged from hospital on the 1
st
of
December 2015 and upon his discharge from the hospital, the plaintiff
was informed that he should report for his follow up consultation
scheduled for the 17
th
of February 2016.
16.
The defendant further advised the plaintiff that by the 17
th
of February, the plaintiff would then
have regained his vision, but the plaintiff is to date still blind
albeit such a promise [was]
made to him
...”
[9]
On 09 March 2018 the appellant’s attorneys served and filed a
notice in terms
of rule 28(1) and (2) of the appellant’s
intention to amend the above para 13 of his particulars of claim by
adding
the following sub-paragraphs:-
“
13.1
At all material times the treating doctor from Kimberley Hospital was
not sure about the cause of the plaintiff’s
blindness.
13.2
The defendant’s treating doctors at Kimberley Hospital ought to
have known that a drainage operation
for a chronic subdural haematoma
are far away from the optic nerves, the blindness is not as a result
of a direct injury to the
optic nerves but the blindness is as a
result of brain herniation.
13.3
The defendant’s treating doctors ought to have avoided a lumber
puncture (LP) procedure in the high
pressure of haematoma.”
[10]
The respondent’s attorneys did not object to the proposed
amendment. However, the appellant’s
attorneys omitted to file
the amended particulars of claim within the period of 10 days as
contemplated in rule 28(5) but filed
them on 14 November 2019, some
18 months after the
dies
had expired. The respondent contended
that this constituted an irregular step in the proceedings and filed
a notice in terms of
rule 30(2)(b) on 28 November 2019 in which the
appellant was afforded 10 days within which to withdraw the amended
particulars
of claim.
[11]
In light that the appellant did not respond to the rule 30(2)(b)
notice and had not sought the
respondent’s consent to file the
amendment or the court’s leave, the respondent filed an
application in terms of rule
30(1) on 19 December 2019 seeking an
order that the appellant’s amendment be set aside pursuant to
rule 30(1) on the basis
that it constituted an irregular step in the
proceedings. The respondent also raised three other issues in the
rule 30(1) application.
First, that the appellant had in his original
particulars of claim pleaded that the operation performed at Robert
Mangaliso Sobukwe
Hospital (RMSH) had caused his blindness whereas in
the amended particulars he averred that the brain herniation caused
his blindness.
It was argued that this constituted a new cause
of action.
[12]
Secondly, it was argued that, insofar as the appellant was treated at
RMSH on 25-26 November
2015 any cause of action arising out of the
said treatment ought to have been pleaded by 25 November 2018 (within
a period of three
years). Therefore, it was contended, the new cause
of action raised in the amended particulars of claim had prescribed.
Thirdly,
it was half-heartedly argued that the particulars of claim
were excipiable in that at para 12 thereof the appellant pleaded that
the operation performed on 26 November 2015 caused his blindness
whereas in the amended para 13.2 he pleaded that the blindness
occurred as a result of the brain herniation. The two paragraphs, it
was argued, were contradictory, vague and embarrassing and
consequently excipiable.
[13]
On 14 February 2020 the appellant filed an answering affidavit to the
respondent’s rule
30 (1) application together with the
application for condonation of the late filing of the amended
particulars of claim in terms
of rule 28(5). In this answering
affidavit the appellant was at pains to show that the amended
particulars did not introduce a
new cause of action nor were they
excipiable. He explained that the amendments were a simple
elaboration of what had been contained
in the initial particulars of
claim for purposes of perfecting that pleading. The salient averments
in this affidavit, which became
central to the defendant’s
application to strike-out, read:
‘
5.5
I submit that upon my attorneys of record having further consulted
with my medical experts on
the interrogation of his medico-legal
report, the concept of brain herniation was clarified and that it
means a brain swelling
or bleeding from a head injury resulting from
a long delay in receiving treatment, a fact that has always been part
of my particulars
of claim.
5.10.1 The defendant does
not dispute or deny my particulars of claim at page 9 paragraph 11
and further that it did a surgical
head operation procedure after a
long delay being seated at its casualty department. In this regard,
at page 21 paragraph 9 of
its Plea of defence, the defendant wholly
admits the claim I have made herein. There is further no denial by
the defendant that
bleeding resulted from the head operation which I
know that in medical terms that that condition of bleeding is brain
herniation.
5.10.2 The medico-legal
report of Doctor Wilkinson, my medical expert witness, says the long
delay in diagnosis and treatment are
also causes of brain herniation
which is now known that such a bleeding that occurred in medical
terms is called brain herniation.
5.10.6
I am advised by expert specialist as this court can glean
from
paragraph 14 of his medico-legal report in that:
“…
[T]he
long delay in diagnosis and treatment are also causes of brain
herniation…”
5.10.7 I further submit
that of interest to the above, is that the defendant in its plea ad
paragraph 15 does admit that I had brain
bleeding, a fact which still
comes to the same meaning of the concept “brain herniation”
and this will be a matter
for legal argument to the effect that the
amendments sought are simply to explain in medical terms what is
already contained in
my particulars of claim.
21.3 I
submit that the cause of action has been so disclosed in my
particulars of claim as the long delay and
not treating me on an
emergency basis albeit the defendant’s hospital had such a
referral letter from Galeshewe Day Care
Hospital. This I submit is
what Dr Wilkinson is explaining in medical terms in his report that
long delays are also causes of brain
herniation and which the
defendant does admit that it has to do with the bleeding in the brain
as per its plea of defence...”
[14]
In seeking condonation for the late filing of the amendment the
appellant’s legal representative
stated that he had allocated
the file to his candidate attorney and did not diarise the matter.
Consequently, he forgot to effect
the amendment within a period of 10
days pursuant to rule 28(5). The candidate attorney, who shortly
qualified as an attorney,
left the firm a year later without handing
over the files to the appellant’s attorney, who apologised for
his mistake which
he urged that it not be attributed to his client.
[15]
On 09 March 2020 the respondent filed a replying affidavit together
with a response to the appellant’s
application for condonation.
In respect of condonation the respondent submitted that it suffered
grave prejudice, which cannot
be cured by an appropriate costs order,
because the purported new cause of action, as pleaded in the amended
particulars of claim,
had prescribed. It also contended that the
appellant had not shown that it had a bona fide case which
necessitated the amendment.
[16]
On 05 May 2020 the respondent also filed an application to strike out
the quoted paras 5.5,
5.10.1, 5.10.2, 5.10.6, 5.10.7 and 21.3
of the appellant’s answering affidavit to its rule 30(1)
founding affidavit on the
grounds that they constituted inadmissible
hearsay evidence in that the appellant filed only the confirmatory
affidavit of his
attorney but not that of Dr Wilkinson.
[17]
On 14 August 2020, Mamosebo J considered the respondent’s rule
30(1) application, the appellant’s
application for condonation
of the late filing of his amended particulars of claim and the
respondent’s application to strike
out the identified
paragraphs of the appellant’s answering affidavit.
The judgment of the
court a quo
[18]
The court a quo recorded it as common cause that the cause of action
arose on 25 or 26 November 2015 and that the
appellant had until 25
November 2015 to file the amended particulars of claim which
introduced the “new cause of action”.
The court concluded
that when the amended particulars were filed on 19 November 2019,
some 18 months later, “the new cause
of action had prescribed”.
The court reasoned:
“
The
cause of action as it appears in the original particulars of claim
and new cause of action as it appears in the amended particulars
of
claim are substantially different and the new cause of action falls
clearly outside the prescription period”.
Accordingly,
the court a quo upheld the respondent’s application in terms of
rule 30 by setting aside the amended particulars
of claim as an
irregular step in the proceedings.
[19]
In any event, so reasoned the court, good cause had not been
established for the late filing of the amended particulars
of claim.
It refused condonation on these bases:
“
I
am not swayed by the explanation furnished by the plaintiff’s
attorneys. It does not provide an accurate account of the
causes for
the delay. The mere fact that his colleague has left the firm and he
erroneously omitted to diarise this file displays
a lackadaisical
approach which fails to meet the required standard of diligence
required of an attorney. It follows then that the
application for
condonation must fail, unless the prospects of success are strong.”
[20]
Turning its attention to the application to strike out the specified
parts of the appellant’s answering affidavit
to the rule 30(1)
application, the court noted that in para 5.5 of the appellant’s
answering affidavit he made mention of
the consultation that his
attorney had with his expert regarding the brain herniation. However,
he only filed the confirmatory
affidavit of his attorney excluding
that of his expert. What the attorney conveyed to the appellant, so
reasoned the court, constituted
inadmissible evidence. Accordingly,
the court a quo struck out para 5.5 of the appellant’s
answering affidavit. Insofar as
the averment was repeated in paras
5.10.1, 5.10.2, 5.10.6, 5.10.7, and 21.3 of the answering affidavit,
the court concluded, these
had to suffer the same fate.
Discussion
[21]
What arises for consideration in the present appeal is firstly,
whether the court a quo correctly
set aside the amended particulars
of claim as an irregular step in the proceedings because the
amendment introduced a new cause
of action which had prescribed.
Secondly, whether the court a quo correctly dismissed the application
for condonation of the late
filing of the amended particulars of
claim and lastly whether the court correctly upheld the striking out
application.
[22]
The appellant argued that the allegation made in the amended
particulars of claim, that his blindness
was caused by brain
herniation, does not introduce a new cause of action. Even if it were
to be assumed that it did, it did not
introduce a new debt for
purposes of the
Prescription Act 68 of 1969
. It was further argued
that the debt claimed in the amended particulars of claim is the same
debt claimed in the original particulars
of claim, namely, a claim
for injuries suffered by the appellant as a result of the negligent
treatment at RMSH, which resulted
in his permanent disablement.
Consequently, it was submitted, the court
a quo
erred when it
found that the amended particulars of claim introduced a new cause of
action which falls outside the prescription
period.
[23]
It was further argued, for the appellant, that even if it were to be
assumed that the court
a quo
was correct that the amended
particulars of claim introduced a new cause of action, such new cause
of action had not been extinguished
by prescription. The appellant
further submitted that the proposed amendment is not
mala fide
but is intended to perfect the particulars of claim in accordance
with the expert report of Dr Wilkinson. As to the application
to
strike out, it was contended that there was no legal basis for such
an application.
[24]
The respondent countervailed that in
para 12 of
the original particulars of claim the appellant’s cause of
action was based on
commission
in
that as a result of the said surgical procedure he lost his vision.
He was referred to an ophthalmologist on 26 November 2016
who found
that the head operation had affected his optic nerve and cerebral
cortex. However, in the amended particulars of claim,
the respondent
argued, the appellant’s cause of action morphed into an
omission on the part of the treating doctors.
It was argued
that the surgical operation is ‘a conduct’ on its own and
that the brain herniation arising from haematoma
and the failure to
act thereon, would constitute a separate conduct. The appellant had
not initially pleaded that the cause of
his blindness was brain
herniation. To the extent that the
appellant’s
blindness is said to have been caused by brain herniation, in the
amended particulars of claim, it was argued
for the respondent, this
constituted a new cause of action different from the cause of action
pleaded in his original particulars
of claim.
[25]
In any event, it was argued for the respondent, when the summons was
issued on 21 October 2016
Dr Wilkinson’s report dated 16
September 2016 was available. The amendment was only made on 14
November 2019, some eighteen
months later. Therefore, the
appellant’s ‘new claim’ prescribed on 15 September
2019.
[26]
A court hearing an application for an amendment has a discretion
whether or not to grant it.
[1]
Such a discretion must be exercised judicially in the light of all
the facts and circumstances. Case law is replete that for
a
proper ventilation of the dispute between the parties t
he
convention is to allow amendments where this can be done without
prejudice to the opponent. The attainment of justice between
the
parties is not to be obstructed by a too rigid adherence to the
pleadings.
[2]
In
Macsteel
Tube and Pipe, A Division of Macsteel Service Centres SA (Pty) Ltd v
Vowles Properties (Pty) Ltd
[3]
Molemela JA said:
“
[12] It
is true that the refusal of an amendment may have a final and
definitive effect because a party may be
precluded from leading
evidence at the trial in respect of the aspects which were to be
introduced by the amendment of the pleadings.
However, the granting
of an amendment does not, without more, have that effect. Ordinarily,
an order granting leave to amend is
an interlocutory order which is
not final and definitive of the rights of the parties.”
[27]
The striking feature pertaining to the proposed amendment is that it
went unopposed. Ordinarily,
absent any
objection
by the opponent, the party desiring the amendment is entitled to make
it. The objection came some 19 months later
, by means of
rule
30(1)
, when it was evident that the appellant had not filed the
amendment he sought within the prescribed 10 days period.
[28]
In his original particulars at para 11 the appellant intimated that
he had a “surgical
head operation for the bleeding which had
developed from inside his brain”. This was admitted by the
respondent who further
averred in para 10 of his plea that “the
loss of vision was caused by pressure on the brain as a result of
subdural bleeding.”
The appellant explained, in his amended
particulars, that
the blindness did not result
from a direct injury to the optic nerves but from brain herniation
which he clarified in a later affidavit
to mean the swelling of the
brain or bleeding from a head injury as a result of a delayed
treatment. In my view, this raises a
triable issue worth of being
decided between the parties.
[29]
I could find no evidence on record that the plaintiff was in
possession of Dr Wilkinson’s
report dated 22 September 2016 at
the time the summons was issued as found by the court a quo in the
judgment on the application
for leave to appeal. In his answering
affidavit to
rule 30(1)
application the appellant merely stated:
“
The
medico-legal report of my medical expert was already served on the
defendant’s attorneys on the 9
th
of March 2017.”
To my mind, the date in
respect of which the appellant received Dr Wilkinson’s report
is immaterial because a party is entitled
to make an amendment to its
pleading at any stage of the proceedings but before the judgment.
[30]
Save to argue that the appellant had failed to establish a bona fide
case which warranted the
amendment, it was never contended that the
amendment was mala fide. A careful and sensible reading of para 13,
introduced by the
amendment, is that the appellant intended to
elucidate his real case by setting out averments
supportive
of the same claim made in the original particulars. In my view, the
conclusion
is
irresistible that the clarification in question did not give rise to
a distinct cause of action. Otherwise put,
the
proposed amendment did not introduce a new issue than the one already
averred in the initial particulars of claim
.
Where, as here, the amendment does not introduce a fresh cause of
action but only clarifies a pleading which insufficiently or
imperfectly set out the original cause of action, the amendment will
be allowed.
[4]
It follows that
the objection was not justified.
[31]
As
already mentioned, the respondent successfully applied for the
striking out of some specified paragraphs from the appellant’s
rule 30(1) answering affidavit.
T
wo
requirements must be satisfied before an application to strike out a
matter from any affidavit can succeed. First, the matter
sought to be
struck out must be scandalous, vexatious or irrelevant. In the
second place, the court must be satisfied that
if such matter
was not struck out the parties seeking such relief would be
prejudiced.
[5]
[32]
To recapitulate,
the purported objectionable
matter in the affidavit is that the appellant referred to the
consultation between his legal representative
and the expert who
clarified what herniation meant. He also referred to his expert’s
report which is to the effect that the
long delay in diagnosis and
treatment, as had allegedly occurred in his case, were also causes of
the brain herniation.
The respondent urged in the court a quo
as it did in this court that the alleged offending paragraphs were
susceptible to being
struck out as inadmissible hearsay. It argued
that, while the appellant’s attorney had filed a supporting
affidavit, in which
he confirmed the contents of the answering
affidavit as it pertained to him, there had been no confirmatory
affidavit from the
medical expert the attorney had consulted with.
[33]
As I see it, what the appellant does in the impugned paragraphs is to
point out what Dr Wilkinson
stated in his report, which had been
served and filed with the court. He did not adduce evidence regarding
the probative value
of Dr Wilkinson’s expert report. The
indications from the record is that, in all likelihood, Dr Wilkinson
would testify at
the trial in due course. To the extent that Dr
Wilkinson’s report had been availed to the respondent, there
can be little
prejudice to it. For these reasons, in my view, the
alleged offending paragraphs ought not to have been struck out.
Belatedly,
in the application for the reinstatement of the appeal,
the confirmatory affidavit of Dr Wilkinson which sought to support
the
averment as contained in the appellant’s rule 30(1)
answering affidavit was attached to the appellant’s replying
affidavit.
No leave was sought for the admission of that evidence on
appeal. Nothing turns on this.
[34]
As to the argument that the appellant’s claim had prescribed,
established jurisprudence
is that a plaintiff is not precluded by
prescription from amending its claim, provided the debt which is
claimed in the amendment
is the same or substantially the same debt
as originally claimed, and provided the prescription of the debt
originally claimed
has been duly interrupted.
[6]
In
Evins
v Shield Insurance Co Ltd
[7]
Corbett JA held:
“
Where
the plaintiff seeks by way of amendment to augment his claim for
damages, he will be precluded from doing so by prescription
if the
new claim is based upon a new cause of action and the relevant
prescriptive period has run, but not if it was part and parcel
of the
original cause of action and merely represents a fresh quantification
of the original claim, or the addition of a further
item of
damages.”
[35]
The conclusion I have come to, that the amendment did not introduce a
new cause of action, disposes
of the question whether the claim has
prescribed.
The
respondent was timeously informed in the original particulars of
claim, prior to the expiration of the period of prescription,
of
every material feature of the case it had to meet which ought to have
left no uncertainty in its mind as to the nature of the
action.
In
any event, prescription is fact driven and conveniently raised by
means of a special plea in trial proceedings where the evidence
may
elicit facts which militates against it. In
Jugwanth
v Mobile Telephone Networks (Pty) Ltd
[8]
Gorven
JA said
:
“
The
fact that a debt appears to have become due on a certain date is not
the only relevant fact required to determine whether it
has
prescribed. The particulars of claim do not necessarily show when the
debt became due, whether the creditor was prevented from
coming to
know of the existence of the debt, when the creditor became
aware of the identity of the debtor, whether the
completion of
prescription was delayed, whether the running of prescription was
interrupted or whether there was an agreement not
to invoke
prescription.”
[36]
The delay in bringing the application for leave to amend will not in
itself, in the absence of
prejudice, constitute a sufficient reason
for refusing the amendment particularly where the amendment
facilitates the proper ventilation
of the dispute between the
parties.
[9]
The remarks in the
English decision
Cropper
v Smith
[10]
by
Bowen LJ adopted by Broome JP in
Heeriah
and Others v Ramkissoon
,
[11]
resonates with the present setting:
“
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
. . .
”
[37]
to the extent that there had been a delay in effecting the amendment
and in bringing the condonation
application, I am of the view, that
any resultant prejudice to the respondent can be mitigated by an
appropriate costs order.
[38]
On the aforegoing exposition, insofar as the court a quo granted the
striking-out application, refused the application
for condonation of
the late filing of the amendment and set aside the amendment as an
irregular step in the proceedings, it erred.
The upshot of this is
that the appeal should succeed.
[39]
I come now to deal with the question of costs. The costs of the
appeal itself including costs in respect of the
application for leave
to appeal must follow the result. In respect of the application for
condonation and reinstatement of the
appeal, I am of the view, that
the appellant, as a party seeking an indulgence from the court,
should bear those costs.
[40]
On 21 November 2022 the appeal could not be disposed of because the
appellant had failed to furnish good and sufficient
security for the
respondent’s costs of the appeal as set out in
rule 49(13).
In
addition, he did not arrange that he be released from furnishing
security prior to the appeal hearing. This largely occasioned
the
delay which, to my mind, ought to be attributed solely to him. The
appeal was subsequently set down on 20 March 2023 but was
struck off
the roll with costs because it had lapsed and no power of attorney to
prosecute it had been filed. Here too, the delay,
it goes without
saying, ought to be ascribed to the appellant. It follows that he
should bear the wasted costs occasioned by the
postponement of
21 November 2022.
[41]
As the costs of the proceedings before the court a quo, they must
follow the result save for costs in respect of
the application for
condonation of the late filing of the amended particulars of claim
which the appellant should bear. An order
is therefore made.
Order:
1.
The application for condonation and reinstatement of the
appeal is granted.
2.
The appellant is to pay the costs of the application for
condonation and reinstatement of the appeal.
3.
The appeal is upheld with costs including costs of the
application for leave to appeal.
4.
The appellant is to pay the wasted costs occasioned by the
postponement of
21 November 2022.
5.
The order of the court a quo is set aside and in its place is
substituted the following:
“
1. The
defendant’s (MEC for Health, Northern Cape) application in
terms of
rule 30(1)
is dismissed with costs.
2. The plaintiff’s
(Mr George Rakhojane) application for condonation of the late filing
of his amended particulars of claim
is granted.
3. The
plaintiff is to pay costs of the application referred to in para 2 of
this order.
4. The plaintiff is
granted leave to file its amended particulars of claim dated 14
November 2019.
5. The defendant’s
application to strike-out paras
5.5, 5.10.1,
5.10.2, 5.10.6, 5.10.7 and 21.3 of the plaintiff’s answering
affidavit to the
rule 30(1)
application is dismissed with costs.”
Phatshoane AJP
Lever
and Nxumalo JJ concur in the Judgment and order of Phatshoane AJP.
Appearances
:
For
the appellant:
Mr
MJ Ponoane
Instructed
by Ponoane Attorneys, Bloemfontein
For
the respondent:
Towell
& Groenewaldt Attorneys, Kimberley.
Adv
M Salie SC
Instructed
by Robert Charles Attorneys & Conveyancers, Kimberley.
[1]
Brocsand
(Pty) Ltd v Tip Trans Resources (Pty) Ltd
and
Others
2021
(5) SA 457
(SCA)
para
15.
[2]
Trans-Drakensberg
Bank Ltd (under judicial management) v Combined Engineering (Pty)
Ltd
and
Another
1967
(3) SA 632
(D) at 637B and 638.
[3]
2021
JDR 3367 (SCA) para 12.
[4]
Trans-African
Insurance Co Ltd v Maluleka
1956
(2) SA 273
(A)
at
279A–E.
[5]
Beinash
v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA)
at
733.
[6]
Associated
Paint & Chemical Industries (Pty) Ltd v Smit
2000
(2) SA 789
(SCA)
para
13.
[7]
1980
(2) SA 814
(A) at 836D - E:
[8]
2021
JDR 2056 (SCA) para 8.
[9]
See
Trans-Drakensberg
Bank Ltd, ibid
Fn
2 at
642H
and see also
Park
Finance Corporation (Pty) Ltd v Van Niekerk
1956
(1) SA 669
(T)
at
667.
[10]
L.R.
26 Ch.D. at 710-711.
[11]
1955
(3) SA 219
(N)
at 222B-C.