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JUDGMENT
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BOTSI -THULARE AJ
Introduction
[1] Before me are two interlocutory application s. The first is an application to amend
pleadings in terms of rule 28 of the Uniform Rules of Court (the Rules) by the
plaintiff in the main action. The second interlocutory application is in the form of
absolution from the instance in terms of rule 39(6) of the Rules by the defendant in
the main action. The main action concerns a delictual claim for damages instituted
by the plaintiff against the defendant .
Facts
[2] The plaintiff instituted action against the Defendant for damages allegedly suffered
because of injuries he sustained on 7 June 2014 at or near Kempton Park train
station. The plaintiff in his particulars of claim alleged that whilst the train was in
motion, he was pushed by other passengers who were jostling for space and fell
through open doors.1 However, during the plaintiff testified in chief and cross -
examination that he was pulled by other passengers from a moving train.
[3] The plaintiff further alleged that the incident that resulted in h im being injured was
caused by the negligence of the respondent and/or its employees. He alleged that
the defendant and/or its employees allowed the train to move while the doors of
the train where the plaintiff was travelling were open. In other words, acco rding to
the plaintiff t he defendant/ and or its employees failed to avoid the incident when,
by exercising reasonable care and diligence, it could and should have done so.
Issues
[4] The matter was set down for hearing on 03 March 2025 and proceeded again on 4
March 2025 on the issue of merits only as per the agreement between parties . After
1 Para graph 4 of the plaintiff particulars of claim.
4
cross examination of the plaintiff and having closed his case, an application was
made from the bar for an amendment of paragraph 4 of the particula rs of claim
seeking that the word ‘pushed’ should be replaced by ‘pulled’.
[5] The defendant objected to the amendment and argued that the application is mala
fide on the following grounds:
a. The amendment changes the version of the plaintiff and constitutes a new
cause of action which has prescribed .
b. The proposed amendment is belated and constitutes prejudice to the
Defendant .
c. No grounds or a reasonable explanation was given in the application to
justify why the proposed amendment was brought late .
d. The proposed amendment constitutes an absurdity in that it is not
supported by evidence which was led by the plaintiff .
e. The proposed amendment seeks to cure the contradiction on pulling and
pushing.
[6] On the other hand, the d efendant brought an applica tion from the bar for absolution
from the instance on the following grounds:
a. The plaintiff has not established a prima facie case .
b. The evidence tendered by the plaintiff is not sufficient to warrant a
reasonable person to find for him .
[7] I will deal first with the plaintiff’s application for amendment of pleading and
thereafter consider the defendant’s application for absolution from instance.
Analysis
Amendment of pleadings
[8] The amendment of pleadings and documents is done in terms of Rule 28(1) of the
Uniform Rules of Court. The rule permits the amendment of any pleading and
document other than the sworn statements and sets out a process that should
unfold to enable the court to consider the amendment application. It is trite that the
onus is on the party seeking the amendment in this case, the plaintiff, to establish
2 that the other party, namely, the defendant will not be prejudiced by the
amendment.2 Having said that, i t is permissible for the court exercising its discretion
and notwithstanding anything to the contrary in the rule, at any stage before the
judgment, to grant leave to amend any pleading and document .
[9] In Macduff and Co. (In Liquidation) v Johannesburg Consolidated Investment Co,
Ltd3 the court correctly stated the following with regarding application for
amendment of pleadings :
“My practice has always been to give leave to amend unless I have been satisfied
that the party applying was acting mala fide, so that by his blunder he has don e some
injury to his opponent which could not be compensated for by costs or otherwise. ”
[10] In a nutshell, t he rule is that an amendment will not be allowed if the application to
amend is made male fide or if the amendment will cause the other party such
prejudice as cannot be cured by an order for costs and, where appropriate, a
postponement.4 In other words , the power of the court to allow amendments is
therefore limited only by considerations of preju dice or injustice to the opponent.5
[11] However, i t was also held that an amendment will not be allowed where it is applied
for at such a late stage in the proceedings and not timeously raised to enable
proper investigation and response thereto.6 In this regard, it was held in
Commercial Union Assurance Co Ltd v Waymark NO.7 that if the amendment is not
sought timeously; some reason must be given for the delay.
[12] The granting or refusal of an application for the amendment of a pleading is a
matter for the discretion of th is court, to be exercised judicially in light of all the facts
and circumstances before it.8 In this regard, this court is mindful that each case has
to be determined on its own merits.
2 See Krische v Road Accident Fund 2004 (4) SA 358 (W) at 363 and Euro Shipping Corporation of
Monrovia v Minister of Agriculture & Others 1979 (2) SA 1072 (C)
3 1923 TPD 310
4 See Union Bank of South Africa Ltd v Woolf 1939 WLD 222 at 225, cited with approval in Myers v
Abramson 1951 (3) SA 438 (C) at 451B –D
5 Media 24 (Pty) Ltd v Nhleko and Another [2023] ZASCA 77 at para 16.
6 Ebesa Architects (Pty) Ltd v City of Cape Town [2023] ZAWCHC 233 at para 23.
7 1995 (2) SA 73 (Tk GD)
8 Brocsand (Pty) Ltd v Tip Trans Resources & Others 2021(5) SA 457 (SCA) para 15
6
[13] The plaintiff’s counsel in his opening address indicated to the court that the plaintiff
was pushed from a moving train and this contention was in line with paragraph 4
of the plaintiff’s particulars of claim. However, the plaintiff testified in chief and
under cross examination that he was pulled from a moving train. It is clear that the
application for amendment was motivated by the inconsistency in the testimony of
the plaintiff vis a vis paragraph 4 of his particulars of claim.
[14] Having said, it is undisputed that although the inconsistency was evident during the
plaintiff’s examination in chief, it was only after the plaintiff’s cross examination and
at the close of the plaintiff’s case that the plaintiff applied for the amendment of
pleadings.
[15] In my view, the plaintiff l eft it for too late in the proceedings to bring his application
for amendment of pleadings. Worse, the plaintiff did not advance reasons why the
application for amendment was brought at such a late stage in the proceedings
considering the fact that the inc onsistency became clear at an early stage in the
proceedings.9 Accordingly, I am of the view that the plaintiff’s application for
amendment of his pleadings should fail . In my view the amendment is not made in
good faith and no reasonable explanation for the delay in bringing the application
was given .
Absolution from instance
[16] An absolution from the instance application is generally brought at the end of the
plaintiff’s case. In this regard, rule 39(6) of the Rules provides as follows:
"At the close of the case for the plaintiff, the defendant may apply for absolution from
the instance, in which case the defendant or one advocate on his behalf may address
the court and the plaintiff or one advocate on his behalf may reply. The defendant or
his advocate may thereupon reply on any matter arising out of the address of the
plaintiff or his advocate."
[17] The test to apply in considering an application for absolution is not that the evidence
led by the plaintiff established a case that woul d be sustained if the case was to
proceed to its conclusion. The essential inquiry in determining whether to grant
9 See Zarug v Parvathie NO 1962 (3) SA 872 D 876 at D -E
2 absolution from the instance is whether there is evidence upon which a court, when
applying its mind reasonably, could or might find for the plaintiff. In other words, a
court would not grant absolution from the instance in a case where the plaintiff has,
at the end of his or her case, presented an answerable case or prima facie case.
[18] The test for absolution was set out in Claude Neon Ligh ts (SA) Ltd v Daniel10 as
follows:
“(W)hen absolution from the instance is sought at the close of plaintiff’s case, the test
to be applied is not whether the evidence led by plaintiff establishes what would
finally be required to be established, but whether there is evidence upon which a
Court, applying its mind reasonably to such evidence, could or might (not should, nor
ought to) find for the plaintiff.
[19] The test was affirmed by the Supreme Court of Appeal in Gordon Lloyd Association
v Rivera and Another.11
[20] The primary issue in dispute in this matter is whether on the merits the plaintiff has
proven a prima facie case against the defendant. The plaintiff bears the onus of
proof regarding this. The plaintiff , as a single witness, elected to close h is case
after leading h is evidence, and the defendant as it was entitled to do, sought
absolution from the instance on the basis that the plaintiff ha s failed to make out a
prima facie case of his claim against the defendant.
[21] A ‘prima facie case’ is sometimes referred to as sufficient evidence and/or ‘prima
facie evidence’. Prima facie evidence is evidence which requires an answer from
the other party, and in the absence of an answer from the other side, it can become
‘conclusive proof’ .12 It is used to refer to the probative value of the proponent’s case
after discharging its burden of proof, but before the opponent has rebutted it. If left
without rebuttal, the proponent’s prima facie case may, depending on the
circumstances, be held to be conclusive.13
10
11 Gordon Lloyd Association v Rivera and Another 2001 (1) SA 88 (SCA) at 92E -93A.
12 Marine and Trade Insurance Co (Ltd) Van der Schyff 1972 (1) SA 26 (A) at para 39 -40
13 S v Alex Carriers (Pty) Ltd 1985 (3) SA 79 (T) at 88I –89D; Ex parte Minister of Justice: In re: R v Jacobson
and Levy 1931 AD 466 at 478 –9; S v Boesak 2001 (1) SACR 1 (CC) at para 24; Gordon Lloyd Page &
Associates v Rivera 2001 (1) SA 88 (SCA) para 2.
8
[22] In Oosthuizen v Standard General Versekeringsmaatskappy Bpk14 it was
observed :
“If at the end of the plaintiff’s case there is not sufficient evidence upon which a
reasonable man could find for him or her, the defendant is entitled to absolution.”
[23] The plaintiff in thi s matter testified that on the date of the incident while trying to
board a train that was coming from Tembisa side to Elandsfontein train station at
about 20:00, he was pulled from behind by one of the passengers. At the time of
the pulling, the train was in motio n with open doors and subsequently he fell on the
platform and sustained injuries. He testified further that at the date of the incident
he had a valid monthly ticket, and the court was referred to the copy of the ticket
from the trial bundle.
[24] During his cross -examination, the plaintiff reiterated that he was pulled out from a
removing train by another commuter, and he fell on the platform even when it was
put to him that his testimony that someone pulled him was improbable. He further
testified that t he words push and pull are the same and had the same effect as far
as he was concerned.
[25] In addition, the plaintiff’s testimony is that the incident that resulted in him being
injured was caused by the negligence of the respondent and/or its employees in
addition to the “pulling” and/or “pushing” . He alleged that the defendant and/or its
employees allowed the train to move while the doors of the train where the plaintiff
was travelling were open. In other words, according to the plaintiff the defendant
and/or its employees failed to avoid the incident when, by exercising reasonable
care and diligence, it could and should have done so.
[26] It is trite that pleadings must contain clear and concise statements of the material
facts upon which the pleader relies. It must be clear enough to enable the opposite
party to reply to that.15 In this regard, it is important to distinguish between facta
probanda namely, material fact that is pleaded and facta probantia namely, “pieces
of evidence ” required to prove a material fact pleaded.16
14 1981 (A) at 1035H -36A
15 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (3) BCLR 219 (CC), 2012 (1) SA
256 (CC) para 52.
16 Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing 2001 (2) SA 790 (T) at 798B.
2 [27] The plaintiff in this matter is required to establish all the elements relating to his
delictual claim against the defendant .17 In this regard, material fact s which was
pleaded by the plaintiff in support of his cause of action (delictual claim) against the
defendant is that plaintiff ‘s falling was because of the defendant and/or its
employee’s negligent and breach of duty of care . In other words, the contradiction
in the plaintiff’s testimony regarding whether he was pushed or pulled is not a
material fact because it is not a fact upon which the plaintiff’s cause of action based.
[28] to support its application for absolution from instance, the defendant argued that a
material fact which was pleaded by the plaintiff is that he was pushed out of the
moving train by passengers who were jostling in the train. However, his testimony
is that he was pulled out of the train by a passenger who was on the platform.
According to the defendant, t his contradiction alone is major and is a clear
demonstration that the court might not find in favour of the plaintiff.
[29] I disagree with the defendant. In my view, the plaintiff’s cause of action or claim
for delictual damages against the defendant is based on the fact that he would not
have been injured had the defendant or its employee made sure that the doors
were closed at the time the train was moving. This is a material fact in the plaintiff’ s
pleaded case which, in my view, requires the defendant to respond to .
[29] It is therefore my considered view that the contradictions in the plaintiff's evidence
regarding whether he was pushed or pulled is not a material fact which warrants
the granting of absolution from instance as suggested by the defendant. In my view,
the plaintiff’s evidence in this regard is just a facta probantia .
[30] Accordingly, the def endant’s application for absolution from instance should fail.
Costs
[31] The general rule in matters of costs is that the successful party should be given his
costs. In determining who the successful party is the court looks to the substance
and not the form of the judgment.
[32] The plaintiff was unsuccessful with his application to amend his pleadings. On the
other hand, the defendant’s application for absolution from instance has failed.
17 Osmar Tyres and Spares CC V ADT Security (Pty) Ltd [2020] 3 All SA 73 SCA at para 26