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[2024] ZAECMHC 25
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Aneliswe v Member of the Execution Council for Health Eastern Cape (4307/2018) [2024] ZAECMHC 25 (5 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MTHATHA
NOT REPORTABLE
Case no: 4307/2018
In the matter between:
MAPHELO
ANELISIWE
Plaintiff/Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR
HEALTH,
EASTERN
CAPE
Defendant/Respondent
JUDGMENT
Zilwa AJ
[1]
The
Plaintiff seeks leave to further amend her particulars of claim in
terms of her notice of amendment dated 28 June 2023. This
involves
the insertion of the following paragraph:
“
Further
the Plaintiff in her personal
capacity has suffered loss of income due to the delay in finishing
her schooling and her tertiary
qualifications, such delay having been
consequent (inter alia) of the need for the Plaintiff to care for her
severely impaired
child for the remainder of the child's life, as
well as the effect of the aforementioned delay on her employment
prospects and
future career progression, given the need (inter alia)
for the Plaintiff to care for a severely impaired child for the
remainder
of the child's life. The total loss of income is
R900 000 000.”
[2]
The
Defendant objected to the Plaintiff's notice of amendment. The
following grounds of objection have been raised:
2.1
The
Applicant’s claim has prescribed;
2.2
The
amendment introduces a new cause of action;
2.3
The
amendment sought will render the particulars of claim excipiable;
2.4
The
Applicant waived alternatively abandoned her claim for loss of
earnings or earning capacity;
2.5
The
notice to amend was delayed and no explanation was proffered for the
delay;
2.6
The
application for leave to amend is
mala fides;
2.7
If
the amendment is granted will cause prejudice to the Respondent; and
2.8
The
Applicant is estopped from proceeding with her claim.
.
[3]
At
the commencement of the argument I directed the parties to address me
on point 2.3 which was amplified to rely on non-compliance
with Rules
18(4) and 18(10) of the Uniform rules. The high watermark of the
objection was couched as follows:
“
If
the amendment is effected, the pleadings will be excipiable in that
the pleadings will not comply with the Rule 18(4) and Rule
18(10) in
that the pleadings will not contain a clear and concise statement of
the material facts upon which the Applicant relies
for her claim for
loss or earnings or earning capacity and will not be in compliance
with the Rule 18 (10)(c)(i) in that, inter
alia, she failed to state
the earnings lost to date and how the amount is made-up.”
[4]
Uniform
Rule 18(10) provides as follows:
'
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
); (ii) the enjoyment of amenities of life
(giving particulars); and stating whether the disability concerned is
temporary or permanent;
and
(d)
disfigurement,
with a full description thereof and stating whether it is temporary
or permanent.' (
underlining for emphasis)
[5]
When
adjudicating the dispute between the parties, the Court should be
guided by the following legal principles, set out in the
ancient
Moolman
v Estate Moolman
[1]
:
5.1 it
is trite that a litigant may amend his or her pleadings at any stage
of the proceedings before judgment;
5.2 a
court hearing an application for an amendment has a discretion to
grant it. Such discretion must be
exercised judiciously.
5.3 the
general approach to amendments is that they should be allowed, unless
the amendment application is
made in bad faith and would cause an
injustice which cannot be compensated with a costs order;
5.4
an
amendment that would render the particulars of claim excipiable is
impermissible.
[2]
(
underlining
for emphasis
)
[6]
Over
the years there has been a considerable wealth of judicial authority
in relation to which factors must, in principle, result
in the
refusal of the amendment. It has been held, for instance, that where
a pleading sought to be amended will become excipiable,
such
amendment must be refused. Even though this principle originates
before our current constitutional dispensation, it still
remains good
law in my view.
[3]
It is also my
view that there is no prudence in allowing an amendment that would
place the pleadings in a worse situation than
they were before the
amendment. Put it differently, to allow the amendment in the sure
knowledge that the Defendant will immediately
note an exception makes
little sense.
[4]
The role of the
pleadings is to properly outline issues, not only for the parties,
but also for the Court. Pleadings that render
it difficult to
understand the cause on which the claim or defence is based stand in
the way of justice, and therefore an amendment
that carries a
possibility of such an eventuality must be discouraged early on, even
before the other party confronts it with an
exception.
[7]
The
view I hold in this regard was once echoed in the case of
Phanto
Props (Pty) Ltd v La Concorde Holdings (Pty) Ltd
[5]
where
Binns – Ward J remarked as follows:
“
By
allowing an amended pleading non- compliant with rule 18, a court
would necessarily thereby be permitting a pleading to be brought
into
being that would be deemed, in terms of rule 18(12), to be an
irregular step. It seems to me undesirable for a court to make
itself
party to any such process or procedure.”
[8] Claims
for personal injury such as the present need to be particularised to
the extent that the parties,
and the Court, know why there is a case
and to where it is going. For the Defendant, this latter aspect
embodies the reasonable
expectation of what it can be called upon to
pay. For the Plaintiff, it creates a reasonable expectation of
financial recovery.
Figures which are not justified in the way
postulated by the Rules do a disservice to the interests of both.
[9]
Plaintiff
is therefore required to plead a summary of the material facts on
which he or she will rely with sufficient clarity to
enable the
defendant to plead thereto. These primary factual allegations, which
are also referred to the
facta
probanda
,
are those which the Plaintiff will be required to prove at the trial
in order to succeed with his or her claim. They must be distinguished
from the secondary allegations, or
facta
probantia
,
which are usually matters for evidence.
[6]
[10]
Facta
probantia
which prove the essential and material facts and it is
those which have to be clearly and concisely set out. The Defendant
is entitled
to not be taken by surprise at the trial as she is
further entitled to conduct her own enquiries about the case she is
called upon
to meet and prepare evidence accordingly. To do this, it
must know what the case is.
[11]
The
book of Harms Civil Procedure in the Supreme Court
[7]
,
the author had the following to say:
“
Pleadings
must therefore be lucid and logical and in an intelligible form; the
cause of action or defence must appear clearly from
the factual
allegations made.”
[12]
At
page 264 the learned author suggests further that, as a general
proposition,
it may be assumed that,
since the abolition of further particulars, and the fact that
non-compliance with the provisions of Rule
18 now (in terms of Rule
18(12)) amounts to an irregular step, a greater degree of
particularity of pleadings is required. No doubt,
the absence of the
opportunity to clarify an ambiguity or cure an apparent
inconsistency, by way of further particulars, may encourage
greater
particularity in the initial pleading.
[13]
Clearly
and logically in my view, the ultimate test must still be whether the
pleading complies with the general rule enunciated
in Rule 18 of the
Uniform rules and the principles laid down in our existing case law.
[14]
In
the case of
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
[8]
the
following articulation was made:
"In my view, if a
pleading does not comply with the subrules of Rule 18 requiring
specific particulars to be set out, prejudice
has,
prima facie
,
been established. Cases may well arise where a party would not be
prejudiced by the failure to comply with these subrules, or
where a
pleader would be excused from providing the prescribed particularity
because he is unable to do so.
But in such cases the onus would in
my view be on him to establish the facts excusing his non-compliance
.
The law reports abound with cases which lay down this principle in
respect of other Rules of Courts, and the same principle applies
in
my view in relation to non-compliance with Rule 18.” (My
underlining)
[15] The
above authority is on point if regard is had to the fact that there
has been no averment in the
notice to amend that seeks to explain as
to why particularity required in Rule 18(10) cannot be available. It
is common practice
that the particulars of claim get filed lacking in
particularity envisaged but there is normally a rider giving an
undertaking
that more particularity will be provided once the
relevant experts’ reports, with proper quantification as to how
the amount
claimed has been arrived at, have been obtained.
[16] On
the other hand
Mr Mtshabe SC,
who appeared for the Applicant,
argued that the particulars of claim would not be excipiable after
the amendment has been granted
moreso that the relevant experts’
reports were delivered in terms of Rule 36(9) shortly after the
notice to amend was delivered.
With respect I did not follow this
line of argument if regard is had to the basic principle that the
notice to amend upon which
the application for leave to amend is
premised should be considered in isolation.
[17]
Eloquently
stressing this point, Davis J had the following to say in the case of
Ngobeni
v Eskom Holdings Soc Limited
[9]
:
“
The
same lack of particularity is also glaringly absent in respect of the
quantum formulation. There is a non-compliance with Rule
18(10) and
this has been debated with counsel during argument.
The
argument that, subsequent to the service of the summons the two
reports referred to in the introduction of this judgment had
been
forwarded to the defendant, provides no answer.
Should the plaintiff wish to rely on the findings, conclusions or
even descriptions contained in those reports as part of its case,
they needed to be pleaded or her reports need to be incorporated in
the particulars of claim.
”
(My
underlining)
[18] On
the issue of prejudice, it was submitted on behalf of the Applicant
that the Respondent cannot be
prejudiced if the proposed amendment
can be allowed in its current. I disagree. My view is that the
prejudice for non-compliance
with Rule 18 is
prima facie
prejudicial. In the case of
Sasol Industies (Pty) Ltd t/a Sasol 1
(supra),
Cloete J agreed with this view when he remarked as
follows:
“
In
my view, if a pleading does not comply with the subrules of Rule 18
requiring specified particulars to be set out, prejudice
has,
prima
facie
, been established. Cases may well
arise where a party would not be prejudiced by the failure to comply
with these subrules, or
where a pleader would be excused from
providing the prescribed particularity because he is unable to do so.
But in such cases the
onus would in my view be on him to establish
the facts excusing his non-compliance. The law reports abound with
cases which lay
down this principle in respect of other Rules of
Court, and the same principle applies in my view in relation to
non-compliance
with Rule 18.”
[19] The
fact that the Respondent will be embarrassed to plead is a clear
prejudice which cannot be compensated
by an order of costs, in my
considered view.
[20] I
will not be doing justice in granting an amendment that will militate
towards further unnecessary
litigation in this matter. That could be
avoided if the proposed amendment were improved to bring it into
compliance with Rule
18(10). Now that I am inclined to refuse the
application for amendment, it would be well within the Plaintiff's
power to take such
ameliorating steps.
[21] On
the issue of costs - considering that the Applicant is championing
her constitutional right and that
the Defendant’s negligence
has been established, I am inclined to depart from the normal rule of
costs following the outcome.
In the exercise of my discretion, I am
not persuaded to mulct the Applicant with costs. The justifiable
order is for each party
to pay its own costs.
[22] In
the result, the following order shall issue:
1.
The
application for amendment is refused.
2.
That
each party shall pay its own costs.
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For Applicant:
Adv NR Mtshabe SC
Instructed by:
Mjulelwa Inc. Attorneys, Mthatha
For Respondent:
Adv RK Ramdass
Instructed by:
Norton Rose Fulbright SA Inc., Johannesburg c/o Smith Tabata
Attorneys, Mthatha
Date Heard:
29 February 2024
Date Delivered:
05 March 2024
[1]
1927
CPD 27
at 29;
[2]
Also
see
: Krischke v Road Accident Fund
2004 (4) SA 358
(W) at 363B; Bowring
Barclays & Genote (Edms) Bpk v De Kock [1991] 3 All SA 42 (SWA)
[3]
In
Phanto (
infra
)
at pages 5 – 6 the following useful background is given for a
proper understanding of the rule:
“
Rule
18(10) in its current form was part of the overhaul of Rule 18
introduced by way of amendments to the rules made as long
ago as
1987. Historical investigation will show that prior to those
amendments any deficiency in particularity in a declaration
or
particulars of claim could be addressed by the defendant requesting
further particulars for the purposes of pleading. Those
historical
provisions were taken away and replaced by rule 18(10) in respect of
damages claims. In my view, it clearly follows
therefrom that a
pleading in a damages claim now has to contain far greater
particularity in respect of the calculation or making
up of that
claim than had previously been the case.
”
[4]
De
Klerk v Du Plessis
1995 (2) SA 40
BCLR 124 (T); Manyatshe v South
African Post Office Ltd [2008] 4 All SA 458 (T)
[5]
2021
JDR 3266 (WCC) at page 7
[6]
Jowel
v Bramwell Jones
1998 (1) SA 836
(WLD) at 903 A-B)
[7]
At
pages
263 - 264
[8]
1992
(4) SA 466
(W) at 470H
[9]
2022
JDR 0857 (GP) at page 11