SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO.: EL2440/2023
Reportable : Yes/No
In the matter between:
A[...] D[...] obo OM [……], Plaintiff /Applicant
LD [[…...] and CD […...]
and
BUFFALO CITY METROPOLITAN MUNICIPALITY Defendant /Respondent
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] This matter concerns an application for amendment in terms of Rule 28 of the
Uniform Rules of Court. Despite the plea not having been filed and the pleadings not
having been closed, there is a further application for separation of merits and
quantum pursuant to Rule 33(4) of the Uniform Rules of Court. For consistency, the
parties will be referred to as they were in the main action . The defendant objects to
the applications.
[2] The plaintiff, in her personal capacity and a representative of her minor
children , instituted action against the defendant, seeking damages for breach of duty
of care. The claim arises from a tragic incident in which her husband, while walking
on a footpath, accidentally encountered a live electric cable carrying electric power,
resulting in severe electrical burns and other fatal bodily injuries. The plaintiff’s
husband ultimately succumbed to his injuries.
[3] Following the service of summons and particulars of claim, on 26 January
2024, the defendant’s attorneys served a combined notice in terms of Rule 23(1) and
30(2)(b) of the Uniform Rules of Court. This notice calls upon the plaintiff to remedy
the specified defects and complaints therein within a period of 15 days. The notice
stipulate s that the plaintiff’s particulars of claim are vague and embarrassing, or in
the alternative, lack the averment necessary to sustain a valid cause of action.
[4] In support of this contention , the defendant alleges an inconsistency in the
applicant’s identification. Specifically, the summons and particulars of claim cite the
plaintiff as “A[...] D[...] ” acting on behalf of several parties, whereas , in paragraph 1 of
the particulars of claim, the plaintiff is referred to by a different name, thereby
creating confusion regarding the plaintiff’s ident ity. Further to the notice, the
defendant asserts that although the unidentified plaintiff has in the particulars alleged
that she is suing in her personal capacity and representative capacity as the
biological mother and guardian of the minor children, the personal aspect of her
claim has not been pleaded. The third ground upon which the defendant relied in its
notice is that although the plaintiff has alleged in paragraph 15 of the particulars of
claim that the defendant’s employees breached their duty of care…. “and/or to
ensure the safety of members of the public, including the plaintiff’s daughter” , it is not
clear which daughter she is referring to.
[5] In its notice, the defendant also contests that the plaintiff’s proposed
amendment, if granted, would constitute an irregular step due to non-compliance
with Uniform Rule 18 (4) and 18(10) specifically on the ground that the specificities
regarding the amount that each minors are claiming, the nature of the medical
treatment which each one of the minors received in the past; the nature of hospital
and medical expenses which each one of the minors incurred in the past; the nature
of the medica l treatment which each of the minors will receive in the future; the
nature of the medical treatment which each of the minors will receive in the future
and how the amount claimed is computed are not stated. On 29 January 2024, the
plaintiff notified the defendant of her intention to apply for the amend ment of the
particulars of claim. The notice of the amendment is outlined as follows:
‘1. By deleting the contents of paragraph 1 thereof and by replacing
same with the following contents:
“The Plaintiff is A[...] D[...] , an adult female person currently unemployed, who
resides at No, C[…] Kwa Nobhetele Squatt er Camp, Scenery Park, Phase 3,
East London, Eastern Cape, who was born on 17 June 1982 with identity
number : [………...].
2. By deleting the words “personal and” appearing in paragraph 2 of the
particulars of claim herei n
3. By deleting the contents of paragraph 14.8 and by replacing same
with the following contents:
“14.8 they failed to prevent injury to the Plaintiff’s husband and failed to
ensure that existing precautions, if any, are adhered to while in the
circumstances they could and should have done so.”
4. By deleting the existing contents of paragraph 15 and replacing same
with the following contents:
“In the circumstances, the Defendant’s employees wrongfully and unlawfully
breached their duty of care and/or to ensure the safety of the members of the
public, particularly the Plaintiff’s husband .”
5. By addition of the following sub paragraph 22.2.3:
“22.3.2 In terms of R8 (10) of the Rules of Court, the Plaintiff hereby provides
the following additional particularity to enable the Defendant to assess the
quantum of the Plaintiff’s claim despite the absenc e of the reports by experts :
22.2.3.1 With regard to the estimated future medical expenses, it is
anticipated that, as a result of the electro cution and the resultant death of her
husband, the Plaintiff’s minor children will require ongoing treatment and
therapy from all experts in the field to assist with difficulties experienced by
them pursuant to the aforesaid incident, including an occupati onal therapist
and a clinical psychologist , etc. The opinions of the aforementioned experts
will be obtained in due course and same will be made available to the
Defendant .”
6. By addition of the following sub paragraph 22.3.4:
“22.3. 4 In terms of R18 (10) of the Rules of Court, the Plaintiff hereby
provides the following additional particularity to enable the Defendant to
assess the quantum of the Plaintiff’s claim despite the absence of the reports
by the experts :
22.3.4.1 with regards to estimated future loss of support, loss of earnings
alternativ ely earning capacity, it is anticipated that, as a result of the
electrocution and the resultant death of her husband, who was the
breadwinner in their family , the career path and earning capacities of her
minor children may be adversely affected and they would likely to have a
significant loss of support and future loss of earnings because of their loss of
a father who was their bread winner and their psychological condition .
22.3.4.2 It is unlikely that, due to their psychological condition, they may be
able to fairly compete in the open labour market and maintain a fair
remunerative work in the open labour market and economic conditions, as
such may be precluded from fair earnings until normal retirement age.
22.3.4.3 However, an opinion of an industrial psychologist, clinical
psychologist and educational psychologist will be obtained in due course and
same will be made available to the Defendant .”
7. By addition of the following sub paragraph 22.3.5:
“At this stage, the Plaintiff does not have sufficient funds to engage experts in
order to deal with the quantification of claim at this stage. It is for this reason
that Plaintiff is costs conscientious and as a result does not currently possess
reports expanding on areas requiring expert opinion, once to hand, Plaintiff
will serve them .”
8. By addition of the following sub paragraph 22.3.6:
“At the commencement of trial Plaintiff will apply that this Court first decides
the question of liability in isolation of quantum. For the above reason
Defendant need not prepare its defence or case on aspects relating to
quantum. ”
9. By deleting the existing amount of R 15 000 000.00 (Fifteen Million
Rand) appearing in paragr aphs 19, 24 and wherever it appears in the
relevant document and by replacing same with the sum of
R 18 000 000.00 (Eighteen Million Rand). ’
[6] The grounds for the applications, as well as the objection thereto, are fully set
out in the affidavits filed by the parties’ attorneys and are further elaborated upon in
the respective heads of argument.
[7] As previously stated in its notice dated 26 January 2024, the defendant
maintains its opposition to the proposed amendment contending that its allowance
would contravene the provisions of Rule 18(4) read in conjunction with Rule 18(10)
of the Uniform Rules of Court. The defendant submits that the plaintiff should provide
a breakdown of how the claimed amounts were calculated including the constituent
components comprising the total amounts claimed. Moreover, the defendant asserts
that permitting the proposed amendments would hinder its ability to reasonably
assess the quantum of the substantial claim against it.
[8] In his address, Mr Kotze, counsel for the defendant referred to specific
paragraphs of the proposed amendments and presented the following argument:
Regarding paragraph 6, he contended that the plaintiff seeks to amend the claim for
future loss of support and earning capacity by purporting to plead further particulars
yet fails to provide such particulars. He further argued that the paragraph attempt s to
introduce new factual allegations while simultaneously qualifying those facts with the
word ‘maybe’ . He asserted that this approach does not constitute the pleading
factual particularity, but rather amounts to conjecture, speculation or impermissible
opinion.
[9] Referring to paragraph 7, Mr Kotze argued that the plaintiff failed to plead
specific particularity and instead claimed a lack of means to appoint an expert to
provide evidence on this issue . Mr Kotze countered that this information does not
need to require an expert at this point, as it pertains to the plaintiff’s personal
knowledge.
[10] A further objection relates to the plaintiff’s failure to plead specific symptoms
or conditions affecting the minor children that would support her claims for future
hospital and medical expenses, as well as future loss of support and loss of earning
capacity. Notably, she has not alleged even a single symptom, such as depression,
anxiety or learning difficulties to substantiate these claims.
[11] Referring to paragraph 8, Mr Kotze submitted that it would be illogical and
impractical for a party to prepare two separate pleas, one addressing the merits of
the claim and another dealing with the quantum of damages. In his view, separating
these issues at this stage would be unreasonable and unwarranted.
[12] Mr Madokwe’ s argument focussed on addressing the alleged technicalities
raised by Mr Kotze referring to the case Trans -Africa Insurance v Maluleka (Tran-
Africa Insurance ).1 He submitted that according to Trans -Africa Insurance’s case the
parties and their legal advisers must adhere strictly to the rules, which are essential
for the administration of justice . However, he emphasized, technical objections to
minor procedural flaws should not be allowed to hinder the swift and cost-effective
resolution of cases unless such objections can demonstrate prejudice.
[13] Mr Madokwe contended that the plaintiff has pleaded a clear and valid cause
of action, articulating the nature of the harm suffered by the minor children and
providing estimated figures in respect of the claim for damages. He argued that the
future medical expenses and loss of earnings cannot be determined with certainty
without the assistance of the expert witnesses. Furthermore, Mr Madokwe submitted
that the defendant’s objection lacked merit, as he failed to demonstrate any prejudice
that would result from the proposed amendment. Additionally, the defendant did not
allege that the amend ment was motivated by malice or bad faith on the part of the
plaintiff. In essence, Mr Madokwe argued that the defendant’s objection is ill-founded
and should be dismissed.
[14] He further submitted that separating the merits from quantum would facilitate
a more expeditious and cost-effective resolution of the matter. Elaborating on this
point, he noted that at this stage, it would be unnecessary to incur the substantial
costs associated with engaging various experts. According to Mr Madokwe, briefing
expert witnesses would be a futile exercise if the plaintiff were to fall on the merits of
the claim. By separating the issues, he argued, the parties can avoid incurring
unnecessary expenses and focus on resolving the fundamental question of liability
before proceeding to quantify damages.
[15] Even when a cost order is granted, so he submitted, there are inevitably
additional attorney and client costs incurred in pursuing experts and quantifying
damages. These costs would be entirely unnecessary for both parties if the plaintiff
fails to succeed on the merits of the matter.
[16] The approach to the application for amendment of pleadi ngs has been well
established through various court decisions. As reiterated in Moolman v Estate
1 1956 (2) SA 273 (A); see also Life Health Group (Pty) Ltd v Mdladla &Another (42156/2013 [2014]
ZAGPJHC 20 (10 February 2024).
Moolman2, the general principle is that the amendments will be permitted unless that
application is made in bad faith (malafide ), would unjustly prejudice the opposing
party and such prejudice cannot be adequ ately compensated through costs, or in
other words the amendment would render it impossible to restore the parties to their
original positions, as they existed when the pleading to be amended was first filed.
[17] The basic principle is that the court’s discretion to permit material
amendments is largely unfettered with the sole caveat being the potential for
prejudice or injustice to the opposing party. Where the true issue in a case is
obscured or ambiguously stated in the pleadings, the court will permit the
amendment aimed at clarifying and recording a genuine dispute, thereby ensuring
that the real controversy between the parties is properly ventilated.
[18] Our courts have concluded that generally an amendment of a prayer may be
permitted provided that the fundamental issue in dispute between the parties
remain s unchanged. However, the court will be more circumspect in allowing such
an amendment if it involves the introduction of a new cause of action, as this may
substantially alter the nature of the claim.
[19] I agree with Mr Kotze that generally, pleadings should comply with Uniform
Rule 18(4), which requires that every pleading must contain a clear and concise
statement of the material facts upon which the pleader relies for their claim, with
sufficient particularity to enable the opposing party to respond.
[20] A perusal of the defendant’s response to the proposed amendments reveals
that no objections are raised regarding paragraphs 1 to 4. The crux of the dispute
lies in paragraphs 5 to 9 of the proposed amended particulars of claim, which are the
focal point of contention requiring determination.
[21] Rule 18(10 ) reads as follows:
‘A plaintiff suing for damages shall set them out in such a manner as will
enable the defendant reasonably to assess the quantum thereof: Provided
2 1927 CPD 27 at 29, the quotation appears in the work by Erasmus, Superior Court Practice 2nd
edition vol 2, Service 1, 2016 D1 -332.
that a plaintiff suing for damages for personal injury shall specify his date of
birth, the nature and extent of the injuries, the nature and extent, effects and
duration of the disabil ity alleged to 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 work the plaintiff will in future be able to do.
(ii) The enjoyment of amenities of life (give particulars ); and stating
whether the disability concerned is temporary or permanent;
and
(d) disfigurement, with full description thereof and stating whether it is
temporary or permanent. ’
[22] In the matter under consideration, Mr Madokwe’s proposal that damages can
only be quantified after an expe rt appointment lacks legal merit. The rule entitles the
defendant to sufficient information to make a realistic assessment of the claim,
facilitating a timely and informed response.3 This requirement aims to expedite
dispute resolution, enabling the parties to engage constructively and explore
potential settlement opportunities.
[23] A defendant faced with such an action has an affirmative obligation to take an
active role in ascertaining the particulars of claim and evaluating a reasonable
3 SA Mutual Fire and General Insurance Co Ltd v Alberts 1976 (3) SA 612 (SE) at 613h -614A
quantum of damages allegedly sustained by the plaintiff. By so doing, the defendant
can respond meaningfully to the claim facilitating a more efficient and effectiv e
litigation process.
[24] In paragraph 22.3.3 of the particulars of claim, it is averred that it is not
pract icable for the minor children to provide greater particularity regarding their
claims at this stage. However, the proposed amendment to the particulars of claim
fails to provide sufficient detail on the computation of the damages.
[25] Although no malice or bad faith has been demonstrated in the defendant’s
objection to the application for amendment of the particulars of claim , it is evident
that there is a failure to comply with Uniform Rules 18(4) and 18(10). The objections
raised by the defendant are well-founded, as they have successfully established a
legitimate conc ern regarding prejudice. This prejudice arises from the inadequate
particulars provided, which hinders the defendant’s ability to respond effectively and
prepare a robust defence. Considering the previously mentioned analysis, the
objections to the amended particulars of claim are well founded and the amended
particulars of claim cannot be allowed in the current form. This notwithstanding, I do
not agree with Mr Kotze’s submissions that the prejudice calls for the setting aside of
the pleadings. Rule 30(3) which also forms the basis of the defendant’s objection to
the application for leave to amend, allows the court to exercise its discretion.
[26] I now turn to consider the application for separation of merits and quantum in
terms of Uniform Rule 33(4). Invoking Uniform Rule 33(4) at the pleading stage
would be inadequate and ultimately self-defeating, as it would undermine the
purpose for which this rule was established. Given the nature of the cause of action,
the merits and quantum in this matter are inextricably linked. Preparing separate
pleadings for merits and quantum would only serve to delay the proceedings. This
would not be in the best interests of the three minor children involved, who deserve a
timely and efficient resolutio n of this matter. Furthermore, the proposed amendment
creates a confusion. At paragraph 8, the plaintiff appears to suggest that the
application for separation of merit s and quantum will be made at the commencement
of the trial, not during pleading stage. It is therefore unclear why the plaintiff has
opted to apply for separation of merits and quantum prematurely before the close of
the pleadings. Consequently, this application lacks merit and must fail.
Costs
[27] The general rule is that costs follow the result. Mr Madokwe argued that this
matter attracts the Biowatch4 principle citing the plaintiff’s intention to assert
constitutional rights involving her minor children and the inabi lity of the plaintiff to pay
costs. He submitted therefore, that court should deviate from the general rule. Mr
Kotze countered this argument by indicating that the Biowatch principle is
inapplicable in interlocutory proceedings. Our courts5 have repeatedly warned that
the ability to finance the litigation is not a relevant consideration in making a costs
order. A party should not get a privileged status because it is indigent particularly if it
has a legal representation.6 It is crucial to note that the objections raised by the
defendant were timely brought to the attention of the plaintiffs’ counsel who missed
the opportunity to apply his mind and act upon the issues raised. Furthermore, the
application for separation of issues which was unjustified failed. In the exercise of my
discretion, I am of the view that the granting of the application for the amendment of
the pleadings shoul d be compensated by a cost order. Consequently, the Biowatch
principle cannot apply in the circumstances of this case.
Order
[28] In the result, the following order is issued:
1. The objection is uphe ld.
4 Biowatch Trust v Registrar Genetics Resources and Others (CC 80/08)[2009] ZACC 14;2009(6) SA
232 (CC);2009(10) BCLR 1014 (CC) (3 JUNE 2009) para 21. This principle entails that generally in
constitutional litigation, an unsuccessful litigant in proceedings against the state ought not to be
ordered to pay costs. At para 43…..”the general rule for an award of costs in constitutional litigation
between a private party and the state is that if a private party is successful, it should have its costs
paid by the state and if unsuccessful, each party should pay its own costs.” This principle does not
apply to a matter that is of not a constitutional nature.
5 Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3;2005 (6)
BCLR 529 CC;2006(3)SA 247 (CC) at para 139, see also Biowatch at para18.
6 Biowatch footnote 4 supra at paragraph 18.
2. The plaintiff is granted leave to amend the particulars of claim in
compliance with Rule 18 (4) and Rule 18(10) of the Uniform Rules of
Court.
3. The application for separation of merits and quantum in terms of Rule
33(4) of the Uniform Rules of Court is dismissed.
4. The plaintiff is ordered to pay costs on scale “A” as contemplated under
Uniform Rule 67A read with Uniform Rule 69 of the Uniform Rules of
Court.
__________
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APEARANCES:
Counsel for the Applicant : Adv: V. Madokwe
Instructed by : TYATYEKA ATTORNEYS
Short Mill House
Victoria Crescent
The Quarry Office Park
Baysville
EAST LONDON
Ref.: NIT/BCM/CIV01 -2023
Tel.: 043 – 050 1171
Counsel for the Respondent : Adv: C.D. Kotzé
Instructed by : WEBBER WENTZEL (Johannesburg)
C/o SMITH TABATA ATTORNEYS
12 St Helena Road
Beacon Bay
EAST LONDON
Ref.: Mrs. K Swartz – Beets/ag/rj/63W6000063
Tel.: 043 – 748 6300
Date Heard : 30 October 2024
Date Reserved : 30 October 2024
Date Delivered : 21 January 2025