THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 886/2023

In the matter between:

TASHREEKA OLIVER NO APPELLANT

and

MEC FOR HEALTH: WESTERN CAPE
PROVINCIAL DEPARTMENT OF HEALTH RESPONDENT
Neutral citation: Oliver NO v MEC for Health : Western Cape Provincial
Department of Health (886/2023) [2025] ZASCA 45 (17 April
2025 )
Coram: MOCUMIE , KGOELE , SMITH and UNTERHALTER JJA and MUSI
AJA
Heard: 17 February 2025
Delivered: This judgment was handed down electronically by circulation to the
parties ’ representatives by email, publication on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand -down is deemed to be
at11h00 on 17 April 2025.

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Summary: Delict – medical negligence – damages – amendment of pleading s after
litis contestatio – whether amend ment of a claim for special damages interrupted
litis cont estatio rendering a claim for general damages no t transmissible –
divisibility of special and general damages cause of action – one indivisible cause
of action – material amendments – litis contestatio interrupted – development of
common law governing the transmissibility of non -patrimonial claims for general
damages – pleadings inadequate for the proposed development .
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ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Mantame J, sitting as court of first instance ):
1 The appeal is upheld with no order as to costs.
2 The order of the high court is set aside and is replaced with the following
order:
‘(a) The plaintiff is granted leave to further amend their particulars of claim
within 30 days from the date of this order.
(b) The c osts are reserved. ’
3 The matter is remitted to the high court to determine whether the common law
rule regarding the non -transmissibility of non -patrimonial damages (general
damages) after litis contestatio should be developed on the facts of this matter.


JUDGMENT

Kgoele JA (Mocumie, Smith and Unterhalter JJA and Musi AJA concurring )

[1] The issue in this appeal relates to the trans ferability of a non-pecuniary claim
(general damages ) to the estate of Mrs Ware ldiah Oliver (the deceased), who was
substituted by the Executor of her estate , Ms Tashreeka Oliver , the appellant. The
appeal is with the leave of this Court against the order granted on 27 October 2022
by the Western Cape Division of the High Court , Cape Town (the high court) . The
appeal arises from a dispute between the respondent, the Member of the Executive
Council for Health, Western Cape (the MEC ) and the appellant , regarding certain
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amendments proposed by the appellant to her claim. The high court ruled that the
amendment s sought by the appellant re-opened litis contestatio , rendering her claim
for general damages not transferable to her estate .

[2] The a ppeal comes about as a result of an action instituted by the deceased
against the MEC for damages arising out of the alleged negligen ce of the medical
staff in her employ. The deceased contended that the negligent treatment by the
hospit al staff led to the amputation of her leg. Initially , the deceased claimed
compensation for:
2.1 Past and future medical and hospital expenses in the amount of R2 220 000.
2.2 Loss of earnings in the amount of R50 000; and
2.3 General damages in the amount of R950 000.

[3] The decision of the high court was based on agreed facts (a stated case)
submitted by the parties . Therefore, only a summation of the facts relevant to the
appeal is necessary. Prior to her death, the deceased amended her particulars of claim
several times. Material to this appeal are the last two amendments. The first of these
amendments was made before the pleadings closed in January 2016, when the City
of Cape Town was joined . Long after the pleadings were close d, the deceased
amended her particular s of claim on 4 October 2017 by increasing her claim for
future medical expenses and hospital expenses (special damages) from R2 175 000
to R6 105 000. The amendment s brought the total amount claimed for damages to
R7 155 000. The deceased passed away five days thereafter, on 9 October 2017,
before the expi ry of the 15 days stipulated in Rule 28(8) of the Uniform Rule s of
Court , being a period within which the respondent could have filed its response to
the amended plea.

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[4] The passing of the deceased sparked a dispute between the parties as to
whether the latter amendment s interrupted litis contestatio and, if so , whether the
deceased ’s claim for general damages had fallen away upon her passing on
9 October 2017. In the stated case presented to the high court, t hree issues were
identified for determination . The f irst issue was whether the amendment s by the
deceased of her particulars of claim on 4 October 2017 had the effect of re -opening
the pleadings, with the result that litis contestatio fell away . If the first issue was to
be answered in the affirmative, then the second issue arises , which is whether the
deceased’s claim for general damages was trans missible to her estate . The third issue
is whether the common law should be developed based on the facts of this case to
render the general damages claim of the deceased transferable, which arises only if
the appellant fails on the first two.

[5] Before the high court , the thrust of the MEC ’s argument was that claims for
general and special damages constitute a single cause of action. As a result, the
amendments of the claim for special damages rendered the earlier achievement of
litis contestatio to fall away because they were material. Fu rther, even though the
deceased passed away before the MEC could reply, litis contestatio was not revived.
As a result, her claim for general damages could not be transmitted to her estate. On
the other hand, the appellant contended that our law allows a person who suffers
patrimonial and non -patrimonial loss to claim redre ss for both in the s ame action,
provi ded that the requirements of those cause s of actions are satisfied. However, the
argument continued, this does not detract from the principle that th ese are two
distinct causes of action , and hence the amendment of the claim for special damages
did not affect the transmissibility of the claim for general damages.

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[6] As an alternative to the above, t he appellant contended that if the court does
not find in her favour , the common law should be developed on the fac ts of this case
to cover the transmi ssibility of the non-patrimonial damages . According to the
appellant, this would give full effect to the spirit, purport , and object of the Bill of
Rights. In opposition to the alternative suggested, the MEC maintained that the facts
of this case do not justify the extension of common law p rinciples governing the
transmissibility of general damages.

[7] As already indicated, t he high court ruled in favour of the MEC . It reasoned
that the amendments were substa ntial and material, in addition to having the effect
of rede fining the issues . Further , it found that if the appellant’s submission is
accepte d, the deceased’s claim for special damages would be transmissible to her
estate on the facts of this case, and that, would be tantamount to a blanket and open -
ended reward for her delays in finali sing her litigation. Regarding the development
of the common law, t he high court found that no case was made by the appellant as
there were no factual allegations indicating glaring inconsistencies with the stated
constitutional provisions or an indication that the common law rule falls short of the
spirit , purpo rt, and objects of the Bill of Rights .

[8] The effect of the proposed amendment s to the pleading s, namely , whether
they revived litis contestatio achieved in January 2016 , remains a contested issue in
the appeal. If they did, then the appellant’s claim for non-patrimonial damages is
non-transmissible , and therefore , the next question is whether the common law
principles governing the non -transmissibility of non -patrimonial damages after litis
contestatio could be developed on the facts of this case .

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[9] The common law rule governing the transmissibility of non-patrimonial
claim s for general damages to a deceased ’s estate is well-settled , as stated by this
Court in Minister of Justice and Correctional Services and Others v Estate
Stransham -Ford .1 However, the contentious issue regarding the proposed
amendment originates from the fact that the amendment sought relates to the
quantum of the claim for special damages , not general damages. Two further issues
arise from this set of fact s. First, whether the two claims , one for patrimonial loss
and the other for general damages , constitute one indivisible cause of action. I hasten
to indicate that it was only during the arguments before us that counsel for the
appellant, correctly so in my view, conceded that many decision s of this Court have
held that these claims are indivisible , as they form part of one cause of action. As a
result, the need for this Court to further analyse this issue fell away . The second
issue that remains is whether litis contestatio falls away when pleadings are
amended subsequent to it being achieved . I turn to deal with this issue.

[10] Whether litis contestati o has been reached is a matter dealt with in rule 29(1)
of the Uniform Rules of Court (the rules) , which prescribes when pleadings are
considered to have closed. However, rule 29 is silent as to what the effect of an
amendment brought after this is. However, in Natal Joint Municipal Pension Fund
v Endumeni Municipality (Endumeni) ,2 this Court recogni sed that amendments to
pleadings m ight alter the scope of the litigation , with consequences for litis
contestatio . It stated :
‘The answer is that when pleadings are re -open ed by amendment or the issues between the parties
are altered informa lly, the initial situation of litis contestation falls away and i s only restored once

1 Minister of Justice and Correctional Services and Others v Estate Late James Stransham -Ford and Others [2016]
ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) para 19.
2 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 15 .
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the issues have once more been defined in the pleadings or in some other less formal manner. That
is consistent with the circumstances in which the notion of litis contestatio was conceived .’

[11] Relatedly , Kruger J in K.J.S v M .J.S,3 taking a cue from Endumeni , expanded
on this issue and explained that an amendment must be material to undo the earlier
achievement of litis contestatio .4 This is in line with the maxim de minimis non curat
lex (ie, the law does not concern itself with tri vialities). In simple terms, a non-trivial
amendment will be immaterial . In my view, the decision is sound . It was also
endorsed in Ngubane v Road Accident Fund5 and is also consistent with Endumeni.
This brings me to the key question: are the amendments material?

Materiality of amendments
[12] Before us, the appellant remained resolute that, contrary to the high court's
finding , the amendment s were not material and had no t significant ly redefined the
issues to the claim for general damages . In its heads of arguments, the appellant
argued that the correct approach is not to look at the scope of the increased quantum ,
as the high court did , but also, whether they were material . Gravitating from this
axis, and in an attempt to per suade this Court to accept the proposit ion that the
amendments did not redefine the issues , the appellant’s counsel elevated the
materiality test . She submitted that: ‘The test is that the claim for general damages
is transmissible unless there is an amendment to the plea that ‘fundamentally ’ alters
the nature of the dispute between the parties (the fundamental rule test )’. The
appellant ’s counsel submitted that, regardless of her earlier concession regarding the
indivisibility of the cause of action upon which the appellant relied , the amendments

3 K.J.S v M.J.S [2015] ZAKZDHC 43; 2016 (1) SA 64 (KZD); [2015] 3 All SA 85 (KZD).
4 Ibid para 16.
5 Ngubane v Road Accident Fund (Ngubane) [2022] ZAGPJHC 275; 2022 (5) SA 231 (GJ) para 34.
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did not fundamentally change the issues in both claims , and therefore, litis
contestatio was not affected. The result is that the general damages ar e transferable.

[13] This proposition cannot be correct for the following reasons. Apart from the
fact that the quantum of special damages substantially increased by approximately
117 percent from the original claim , the amendment set out 41 previously unple d
procedures the appellant would allegedly have been required to undergo in the
future; the amendment included previous ly unmentioned seque llae alleg edly arising
from the MEC ’s employees negligence , giving rise to further claims for the
treatment of such injuries; the concomit ant pain and suffering , including loss of
amen ities of life that the appellant would have suffer ed as a result of the newly
introduced sequellae from the amendments , if subsequently established by the
evidence, would have as a result , substantially informed not only the appellant’s
increase d claim for future medical expenses , but also her claim for general damages.

[14] In my view, the amendment s significantly altered and expanded the issues
that have a bearing on the damages suffered by the appellant that would go to trial.
They are material , and would require a response in an amended plea.

[15] The upshot is that the legal effect of the proposed amendment s of the
particular s of the claim on 4 October 2017 was that the initial litis contestatio
achieved in January 2016 fell away . Thus, when the appellant passed away on
9 October 2017 , litis contestatio had not yet been achieved . It follows from the
common -law principle s applicable to the transmissi bility of general damages that on
9 October 2017 , her claim for general damage s occasioned by her bodily injur ies
was extinguished and could not be transmitted to her estate. The high court ’s
decision cannot be faulted in this regard.
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Development of the common law
[16] The high court also refused to develop the common law rule applicable to the
non-transmissibility of claims for general damages as an a lternative to the finding
in favour of the MEC on the first issue as prayed by the appellant. That court
concluded that no proper case was made for developing the common law .

[17] In support of this ground, the appellant submitte d that the common law rule
regarding the transmissibility of general damages should be developed by the
creation of a qualification , on the facts of this case , that the appellant’s claim for
general damages occasioned by the deceased’s bodily injury was not extinguished ,
but instead would be transmit ted to her estate. The bas es proffered were that the
deceased passed away after litis contestatio was first achieved; the amendment s to
her particulars of claim w ere prompted by and founded upon reports from experts
who had been jointly appointed as part of settlement negotiations; the amendments
did not affect the claim for general damages; and did not change the issues in dispute.
The reliance on these facts as submitted was that they are peculiar and warrant the
common law to be developed to accord with the spirit, purport, and object of the Bill
of Rights.

[18] As to how the common law should be developed, the appellant’s counsel, in
an attempt to answer a question from this Court, proposed three different
approaches: (a) the extension of litis contestatio on the facts of this case; (b) the
adoption of the rule in Nkala and Others v Harmony Gold Mining Company Limited
and Other 6 (ie abandon the litis contestatio rule); and (c) the adoption of the new
elevated test ‘the fundamental change rule ’.

6 Nkala and Others v Harmony Gold Mining Company Limited and Others [2016] ZAGPJHC 97; [2016] 3 All SA
233 (GJ) ; 2016 (7) BCLR 881 (GJ); 2016 (5) SA 240 (GJ) para 243 .
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[19] The MEC opposed the se propositions and instead proposed an alternative
order that this Court ought to make due to the inadequacy of the pleadings, including
the absence of any evidence relating to the proposed development of the common
law. The MEC’s counsel urged this Court to uphold the appeal and replace
paragraphs 2, 3, and 4 of the high court’s order with an order granting the appellant
leave to amend her particulars of claim w ithin 14 days. In addition, the MEC
submitted that no order should be made regarding the costs of the appeal.

[20] Our common law does not permit the transmission to the deceased estate a
claim for gen eral damages or non -patrimonial loss occ asioned by bodily injury if
the claimant dies before litis contestatio . If the appellant’s contention is accepted,
developing our common law rule by adding the qualification the appellant is
propounding would permit such transmission before litis contestatio .

[21] The point of departure is that the appellant did not plead precisely how the
common law should be developed to allow the transmission of the claim for general
damage s into her estate. The suggestions were only made during arguments. But this
is not the end of the difficulties with the appellant’s case as pleaded . As the
submissions before this Court crystallised , it became apparent that further essential
requirements relating to the development of the common law were also not pleaded.
In my view , the paucity of the averments as the law requires deprives this Cour t, as
a court clothed with appellate jurisdiction, of the ability to properly analyse the
merits of these proposals.

[22] Although the high court dismissed the appellant 's contentions, its reasoning
regarding the development of the common law is somehow flawed . First, the
appellant cannot solely shoulder the blame for the inadequacy of the pleadings .
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Second, it was, in my view , too harsh in its approach to dismiss the matter when it
gave its blessing to the specification of the issues without requiring that the
development of the common law issue be properly pleaded . The law relating to the
development of the common law is clear . It requires adhe rence to the steps set out
in Mighty Solutions v Engen Petroleum Ltd and Another (Mighty Solution s).7
Froneman J, in the majority decision of MEC for Health and Social Development ,
Gauteng v DZ obo WZ (DZ obo WZ) ,8 wrote :
‘To start the enquiry one must be clear on (1) what development of the common law means; (2)
what the general approach to such development is ; (3) what material must be available to a court
to enable the development ; and (4) the limits of curial, rather than legislative, development of the
common law .’

[23] The third difficulty with the high court’s finding is that the arguments made
before it – and eventually to this Court – were predica ted on a ‘bare bones ’ stated
case for all the issues raised . No evidence was led. Even though the limited facts
established by the stated case attempt ed to satisfy the first requirement mentioned
in DZ obo WZ , the pleading does not at all, as indicated earlier, go further to establish
the other requirement s. They fall far short .

[24] Our courts have lamented on several occasion s requests to develop the
common law principles in a factual vacuum. In H v Fetal Assess ment Centre ,9 a
practical illustration of the latter difficulty in circumstances dissimilar to those of
the present case can be observed . There, applying this Court ’s judgment in Stewart
and Another v Botha and Another ,10 the high c ourt upheld an exception to the

7 Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum and Another (Mighty Solutions CC) [2015]
ZACC 34; 2016 (1) SA 621 (CC) 2016 (1) BCLR 28 (CC) para 38.
8 MEC for Health and Social Development Gauteng v DZ obo WZ (DZ obo WZ) [2017] ZACC 37; 2017 (12) BCLR
1528 (CC); 2018 (1) SA 335 (CC) para 27.
9 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) para 14.
10 Stewart and Another v Botha and Another [2008] ZASCA 84; 2008 (6) SA 310 (SCA); [2009] 4 All SA 487
(SCA).
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particulars of claim in an action for damages against the Ce ntre brought by the
mother of a child born with down syndrome, on behalf of the child, and so had
dismissed the claim. The action was based on the Centre’s alleged wrongful and
negli gent failure to warn the mother, who had consulted the Centre during her
pregnancy, that there was a high risk of the child being born with down syndrome.
The child alleged that had the mother been warned , she would have cho sen to
undergo an abortion. The child claimed special damages for past and future medical
expenses and general damages for disability and loss of amenities of life. The Centre
excepted t o the claim as being bad in law and not disclosing a cause of action
recogni sed by our law. The child so represented contended that the common law
should be developed to recognise the claim.

[25] The Constitutional Court considered the potential vi ability of the child’s claim
in our law, ie , whether our common law may possibly be developed to recogni se it,
and, having done so, concluded that the child’s claim is not necessarily
inconceivable under our law. The Constitutional Court , however, held that the
exception ‘was not the proper procedure to determine the importan t factual, legal
and policy issues that may have a deci sive bearing on whether the common law
should be developed to allow the child’s claim to be accommodated in the particular
circumstances of this case ’.11 It upheld the appeal, set the high court's order aside ,
and replaced it with an order granting the plaintiff leave to amend the particulars of
claim.12

[26] Factual evidence to sub stantiate a carefully pleaded argument for the
development of the common law must be properly adduced by the claimant for

11 Op cit fn 9 para 78.
12 Ibid para 83 .
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analysis by a court. If it is sufficient ly cogent, it might well carry the day. In the
matter before this Court , only an effort was made to secure some fact –specific
relaxation of the comm on law from the facts agreed upon by the parties in the stated
case. The high court , therefore, erred in its approach by dismissing the development
of the common law rule on the bas is of a stated case. It was denied an opportunity
to determine whether a well -defined development of the common law is warranted.

[27] In addition to the fact that a case for the proposed development of the law
ought to have been properly formulated, an exposition of the range of pos sible
developments , as already indicated, which might inclu de what the appellant
proposed by way of submission before us , had to be made. The high court had a duty
to explore the parameters of what the development of the common law might entail .
It did not. Unfortu nately, the lack of precision regarding the proposed development
was not cured by the parties ’ stated case. The high court was consequently not placed
in a position to consider whether the common law should be developed , and if so
how. T his Court is in the same position.

[28] The high court also failed to insist on proper adherence to the notice of the
comment procedural as required by rule 16A (1). The notice that the appellant issued
on 17 November 2021 did not state with precision how the common law should be
developed to permit the transmission of the appellant’ s claim of general damages.
Given the importance of this matter and the interests of various other potential
parties in the development of the common law in this regard, among others, the
potential amici curiae , including the Road Accident Fund, the South African Police
Service, the National Department of Health, the Provincial Department of Health in
our other eight provinces, municipalities, and non -governmental organisations, a
more than the perfunctory notice was required. That, in turn, may have alerted the
15

interested parties t o the proposed development and enabled them to be admi tted as
such in the proceedings, if necessary.

[29] Lastly , the record contains no evidence of the broader consequences of the
development of the common law sought by the appellant . This Court is thus asked
to develop the common law in a factual vacuum despite the self -evidently wide
ramifications for personal injury claims under the common law contended for by the
appellant . For example, t he evidence may show that the ramifications of any
common law change are such that the separation of powers principle would be best
served by leaving it to the legislature to decide whether a change is necessary and,
if so, what it should be.13 As the Constitutional Court stated in DZ obo WZ ,
‘development of the common law cannot take place in a factual vacuum ’14 and ‘any
development of the common law requires factual material upon which the
assessment whether to develop the law must be made ’.15 Moreover, evidence is
indispensable to enable the high court to make informed findings concerning the
wider consequences of the proposed change of the law and to take those
consequences into account, as it is obliged to do.16

[30] For these reasons, I agree with the alternative order suggested by the MEC. I
therefore conclude that , as a result of the fact that the proposed development of the
principles of common law by the appellant – albeit from the bar – warrant proper
consideration , the alternative ord er suggested by the MEC should, in the interest of
justice , be made by this Court . An appropriate order in the circumstances of this

13 Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC); 2002 (1) SACR 79 (CC) para 36. See also Masiya v Director of Public Prosecutions, Pretoria and Another
[2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (CC); 2007 (2) SACR 435 (CC) para 31; Nortje v Road
Accident Fund and Another [2022] ZAKZDHC 2; 2022 (4) SA 287 (KZD) paras 46 –48; Ngubane paras 37 –39.
14 DZ obo WZ para 28.
15 DZ obo WZ para 38.
16 Mighty Solutions para 38.
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matter is, therefore, to remit the matter to the high court to have these issues
adequately formulated, pleaded, and ventilated and, furthermore, to permit the high
court to ensure that proper notice is given .

[31] The following order is made :
1 The appeal is upheld with no order as to costs.
2 The order of the high court is set aside and is replaced with the following
order:
‘(a) The plaintiff is granted leave to further amend their particulars of claim
within 30 days from the date of this order.
(b) The c osts are reserved. ’
3 The matter is remitted to the high court to determine whether the common law
rule regarding the non -transmissibility of non -patrimonial damages (general
damages) after litis contestatio should be developed on the fact s of this matter.



__________ _______________
A M KGOELE
JUDGE OF AP PEAL
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Appearances

For the appellant : N Stein
Instructed by: Malcolm Lyons & Brivik Inc ., Cape Town
Matsepe s Attorneys , Bloemfontein

For the respondent : A M Breitenbach SC with M Ipser
Instructed by: State Attorney , Cape Town
State Attorney , Bloemfontein .