IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
(EXERCISING ITS ADMIRALTY JURISDICTION)
CASE NO: A66/2017
Name of the ship: MV “RASCAL ”
In the matter between:
RUSSEL CHARD Plaintiff
and
OLD MUTUAL INSURANCE LIMITED Defendant
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ORDER
___________________________________________________________________
In the premises it is ordered that:
1. The application for amendment is dismissed .
2. The defendant is ordered to pay costs of the application including costs of
senior counsel on scale C.
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JUDGMENT
________ ________________________________ ___________________________
Mathenjwa J
[1] This is an interlocutory application brought by the defendant for leave to
amend its plea to the particulars of claim filed by the plaintiff. The relief sought is
opposed by the plaintiff.
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[2] The action ar ises out of a written agreement of insurance conc luded by the
plaintiff and defendant on 26 June 2007 in terms of which the defendant undertook to
indemnify the plaintiff in respect of his Bavaria vessel in respect of defined events
including loss or damage to the vessel whilst afloat at the seas, in ports and rivers or
on inland waters including docking, undocking, launching and hauling out and
accidental loss or damage , including external accidental means , including sinking
and negligence of any person what soever .
Factual background
[3] The plaintiff alleged that on 3 January 2017 the vessel sank at the Durban
Marina and its engines became submerged in salt water . The plaintiff informed the
defendant of the occurrence of the insured event. The defendant appointed an
assessor and a techni cian to assess the damage to the vessel. The assessor ,
alternatively the technician, started and operated the engines of the vessel without
following the standard procedures for engines which had been submerged in salt
water, alternatively without taking reasonable precautions against damage to
engine s which had been submerged in salt water. The vessel was a total loss as a
result of the sinking thereof; alternatively, the sinking thereof and the negligent
actions of the assessor and /or the technician who were negligent in a manner
described in this paragraph.
[4] The defendant seeks to amend its plea firstly , by inserti ng in paragraph 2,
paragraph 2(e) to read as follows:
‘It is a warranty of this insurance that you shall take all reasonable steps to maintain the
vessel in a proper state of repair and seaworthiness and that you act reasonably as owner to
prevent or minimise any loss or damage .’
Secondly, by inserti ng in paragraph 3 a new paragraph 3(e) to read as follows:
‘The refusal by the plaintiff to fund replacement lubricant oil for the engines after they were
submerged in salt water, alternatively the failure to give an instruction to effect such a
replacement when he knew or ought to have known that it should be given, immediately after
the re -floating of the vessel constituted a breach of the express warranty pleaded in 2 (e )
above ... and breach of the common law duty on an insured to act prudently and to minimise
loss’.
And thirdly by amend ing the existing paragraph 6 so as to read as follows:
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‘The allegations contained in this paragraph are denied. In amplification of that denial and
without derogating from the generality thereof:
(a) Defendant accepts liability to pay the plaintiff the lesser of the reasonable costs or
repair of the vessel and the insured amount of R3 000,000,00. In so far as the repairs
were occasioned by defined events for which the plaintiff made a claim; except
(b) In so far as it may be established that the plaintiff breached his warranty to act
reasonably as owner to prevent or minimise any loss or damage .’
[5] It is appropriate to point out that the relevant part of the existing paragraph 3
of the plea reads as follows:
‘(a) The engines were subsequent to the re - floating of the vessel, started and operated
in accordance with standard procedures applicable in such circumstances;
(b) The engines were rehabilitated and but for required repairs to electronics and wiring,
had been salvaged after the submersion; ’
and the existing paragraph 6 read s as follows:
‘The allegations contained in this paragraph are denied. In amplification of that denial and
without derogating from the generality thereof, defendant accepts liability to pay to plaintiff
the lesser of the reasonable costs of repair of the vessel and the insured amount of R
3000.000 in so far as the repairs were occasioned by defined events for which the plaintiff
made a claim’.
[6] The amendment sought arises from the defence witness , Mr Vermaak’s
concession during cross -examination where he stated that the proper way to attempt
to salvage the engines included completely draining of the lubricant oil and his
allegation that he wanted to re place the oil; and he had made a request to the
plaintiff that the new lube oil be provided but this request was refused. The
defendant contended that given the provision of clause 19 of the agreement of
insurance which provides that:
‘It is a warranty of this insurance that you shall take all reasonable steps to maintain the
vessel in a proper sta te of repair and seaworthiness and that you act reasonable as owner to
prevent or minimise any loss or damage ,’
if it was held that Mr Vermaak’s v ersion was accepted, then the plaintiff would be in
breach of the warranty which will excuse the defendant from liability entirely. For that
reason, the defendant applied for leave to amend its pleadings accordingly.
Parties’ contention
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[7] The plaintiff contends that the proposed amendment if allowed :
(a) would render the plea excipiable on the ground that it is vague and
embarrassing ;
(b) while the proposed amendment relies on the plaintiff’s refusal to fund oil , it
lacks particularity ;
(c) the proposed amendment contradicts the defendant’s pleading s which states
that the engines were subsequent to the re -floating of the vessel, started and
operated in accordance with the required standard procedures;
(d) the proposed amendment if allowed would cause prejudice to the plaintiff,
(e) the amendment is not bona fide ; and
(f) there is no explanation by the defendant as to why it only sought to bring the
amendment at such a late stage of the proceedings.
[8] Counsel for the defendant Mr Wallis SC submitted in argument that there will
be no prejudice to the plaintiff if the amendment was granted because the
witnesses whose evidence is relevant to the proposed amendment might be
recalled at the reconvened trial . Regarding the plaintiff’s contention that the
proposed amendment was vague in that it does not give particularity of the refusal by
the plaintiff to enable the replacement of lube oil, and the mode and time of refusal
by the plaintiff , it was submitted on behalf of the defendant that it was apparent from
the evidence presented in court that the defendant was not relying on any written
documents . Further, it was submitted that the plaintiff’s contention that the
amendment was mala fide is not sustainable since the amendment was so ught
consequent upon evidence elicited in the cross -examination.
[9] Counsel for the plaintiff, Mr Voormolen SC submitted that the assertion by the
defendant in the proposed amendment in stating that the plaintiff refus ed to fund
replacement lubricant oil for the engines is contrary to its own pleadings on which the
defendant relied upon that the engines were properly first aided after the sinking of
the vessel and the proper procedures for starting the engines were followed ,
therefore, the argument went, the proposed amendment does not raise a triable
issue. Further, it was submitted on behalf of the plaintiff that the proposed
amendment is so vague in that it is impossible to discern what the defendant ’s case
is; and if granted the amendment would be prejudicial to the plaintiff in that it lacks
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particularity as to whether there was a request in the first place, when and how it was
made .
Applicable legal principles
[10] Amendment of pleadings has received extensive judicial attention. The court
has a discretion whether to grant an amendment or not, which must be exercised
judicially in the light of all the fact s and prevailing c ircumstances .1 It is trite that the
primary object of allowing an amendment is to ‘obtain a proper ventilation of the
dispute between the parties, to determine the real issues between them, so that
justice may be done ’.2 An a mendment can be made at any stage before judgment in
the proceedings. However , an amendment is not for taking, a party seeking the
indulgence must explain the reason for bringing the amendment and satisfy the
court that the amendment if granted will raise a triable issue.3
[11] The test on whether an amendment should be allowed as enunciated in
Moolman v Es tate Moolman4 has been endorse d by the courts . In Ascendis Animal
Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others ,5 the Constitutional
Court quoted with approval Moolman where Watermeyer J stated as follows:6
‘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 which is sought to amend was filed.’
[12] Thus , the general rule is that the amendment should be granted unless if
granted the other party will suffer prejudice which cannot be compensated by costs.
However, the granting of an amendment is an indulgence to the party asking for it.7
Thus, the onus rests with the party seeking the amendment to satisfy the court that it
1 Robinson v Randfontein Es tates Gold Mining Co Ltd 1921 AD 168 at 243.
2 Trans -Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering ( Pty) Ltd and
Another 1967 (3) SA 632 (D) at 638A .
3 Ibid at 641A.
4 Moolm an v Estate Moolman 1927 CPD 27 .
5 Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327
(CC) para 89 .
6 Moolman above fn 4 at 29.
7 Rosenberg v Bitcom 1935 WLD 115 at 117.
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is not made mala fide and the other party will not be prejudiced if the amendment is
granted.8
[13] Where the facts raised in the proposed amendment will not contribute to the
determination by the court of the real issues between the parties nor possibl y affect
the outcome it ought not be grant ed. In Trans -Drakensberg Bank Ltd Caney J stated
as follows:9
‘Having already made his case in his pleading, if he wishes to change o r 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 exception which would make the pleading excipiable .’
If the amendment which the part y proposes would have no significan ce to the
outcome in the case, that party would suffer no prejudice if the amendment is not
allowed.10
Analysis
[14] Having scathed the factual background and applicable legal principles, I now
turn to the grounds of objection. Counsel for both parties in their respective
address es have referred the court to the evidence of Mr Vermaak . Mr Voormolen
submitted that the question of exception should not be determined with reference to
evidence, but with reference to the pleading alone. I agree with this contention which
was endorsed in the Constitutional Court judgment of Baliso v FirstRand Bank Ltd t/a
Westbank .11 In Baliso Froneman J stated that ‘where an exception is taken a court
looks only to the pleading excepted to as it stands, not to facts outside those stated
in it’.12 At this stage of the interlocutory application the court does not consider the
evidence; the credibility of witnesses in the main action ; speculate what could be the
plaintiff’s response to the defendant’s evidence or how such response would impact
on the parties evidence.
8 Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (T K) at 77F -I.
9 Trans -Drakensberg Bank Ltd above fn 2 at 641A -B.
10 Trope and Others v South African Reserve Bank 1993 (3) SA 264 (A).
11 Baliso v FirstRand Bank Ltdt/a Westbank 2017 (1) SA 292 (CC).
12 Ibid para 33.
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[15] The proposed amendment to paragraph 3 to the plea provides that the
refusal by the plaintiff to fund replacement of the oil, alternatively the failure to give
an instruction to effect such a replacement constituted a breach of the express
warranty of the insurance agreement . It is apparent from the amendment that there
are no averment s that the defendant had requested the plaintiff for fund s to replace
the oil, nor that the plaintiff refused the request. Furthermore, the amendment lack s
averments as to where, when, and how the request was made .
[16] Uniform rule 18(4) provides that:
‘Every pleading shall contain a clear and concise statement of the material facts upon which
the pleader relies for his or her claim, defence or answer to any pleading, as the case may
be, with sufficient particularity to enable the opposite party to reply thereto .’
This provision of the rule requires parties in litigation to plead with suffi cient clarity
and particularity of the material facts upon which they rely for their conclusion to
enable the other party to plead to the pleading.13 It is clear from the proposed
amendment that it does not comply with rule 18(4) ; and lacks sufficient particularity
of the material facts upon which the defendant relies for its defence.
[17] During argument , counsel for the defendant argued that if the court
determined that the pleading was unclear, it should issue an order with an
amendment that addressed the particularity that was lacking. In my view if the court
were to grant that order it will grant an order that was not requested and ventilated
by the parties in their pleadings . The defendant ’s pleadings in this application does
not make provision for the proposed order and therefore a case was not made in the
pleadings for the proposed order. Courts should desist from granting orders that
were not requested by the parties . I align myself with the reasoning of Binns - Ward J
in Phanto Props ( Pty) Ltd v La Concorde Holdings (Pty) Ltd14 where he stated 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 .’
13 Trope above fn 10.
14 Phanto Props ( Pty) Ltd v La Concorde Holdings (Pty) Ltd 2021 JDR 3266 (WCC) at 7.
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[18] In my view if the proposed amendment is granted the plaintiff will be
embarrassed when he plead s to a pleading that is not clear and lacks sufficient
particularity . He would not know what case to meet and how to reply to the
defendant’s plea. Such embarrassment would constitute prejudice to the plaintiff that
cannot be compensated by an order of costs. I align myself with the case of Sasol
Industries ( Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering ( Pty) Ltd t/a LH
Marthinusen ,15 where the court held that:
‘In my view , if a pleading does not comply with the subrules of Rule 18 requiring specifi ed
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 .’
If granted , the amendment would be deemed an irregular step and the plaintiff will
be entitled to act in accordance with rule 30.16 Also i f granted , the amendment will
have an adverse effect to the administration of justice . It will militate further
unnecessary litigation that w ill further delay the finalisation of the matter and
consequently impede the court’s delivery of justice.
[19] It is instructive that the defendant brought its application late in the
proceedings , towards the end of its case. The defendan t has explained that the
application arose from the concession made by its witness during cross -examination
and re -examination. Therefore, I have no reason to draw a conclusion that the
defendant was mala fide in bringing the application at that late stage of the
proceeding.
[20] This brings me to the contradiction s between the defendant’s version in its
current plea and the proposed amendment s. Paragraph 3(a) of the defendant’s
current plea states categorically that : “the engines were started and operated in
accordance with applicable standard procedures ”. By inserti ng a new paragraph
3(e) the plea will state that a request was made to the plaintiff to fund replacement
lubricant oil for the engines to which he refused or alternatively the plaintiff failed to
give an instruction to effect such a replacement when he knew or ought to have
15 Sasol Industries ( Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering ( Pty) Ltd t/a LH Marthinusen
1992 (4) SA 466 (W) at 470H -I.
16 Rule 18(12).
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known that it should be given, immediately after the re -floating of the vessel thereby
contradict ing the current pleading s which state that the defendant’s agent followed
correct procedures when they first aided the vessel. Since it is now accepted by both
parties that replacement of lubricant oil is part of the procedure for first aiding
engines which had been submerged in salt water, the facts raised in the proposed
amendment contradicts the pleadings which states that the proper procedure was
followed because the defendant now provides the reason why the proper procedure
was not followed . The reason being the refusal of the plaintiff to fund the
replacement of the oil . Therefore, the facts raised in the proposed amendment will
not affect the outcome of the case . Thus, the proposed amendment does not raise a
triable issue and therefore is excipiable.
[21] In my view the application for amendment is interwoven. The averments that
the plaintiff refused the request for funding of the replacement oil is the thread that
holds together all the other proposed amendments. As it falls, the remaining
proposed amendments should not stand .
[22] The general r ule that costs follow the result should apply in this case. Given
the complexity of the matter, it necessitated the employment of senior counsel.
Therefore, costs should include costs of senior counsel on scale C.
Order
[23] In the premises it is ordered that:
1. The application for amendment is dismissed .
2. The defendant is ordered to pay cost s of the application including cost s
of senior counsel on scale C .
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Mathenjwa J
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Date of hearing: 5 December 2024
Date of judgment: 17 January 2025
Appearances:
Plaintiff’s counsel : Mr A V Voormolen SC
Instructed by: Duvenage Incorporated
Richards Bay
Locally represented by: Johan Jooste & Co
Durban
First respondent’s counsel: Mr P J Wallis SC
Instructed by: Norton Rose Fulbright South Africa INC
Durban