Doovey v University of the Free State and Another (5668/2018) [2021] ZAFSHC 45 (22 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 5668/2018

In the matter between:

MOEGAMAD ASHRAF DOOVEY

Plaintiff

and

UNIVERSITY OF THE FREE STATE

Defendant/Respondent

INTERCONNECT SYSTEMS (PTY) LTD Applicant /Third Party

HEARD ON: 10 DECEMBER 2020

CORAM:

MATHEBULA, J

DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 23 FEBRUARY 2021. The date and time for hand-down is deemed to be 24 FEBRUARY 2021 at 16:00

Introduction

[1] This is an opposed application in terms of Rule 30 of the Uniform Rules of Court for an order that the respondent’s third party notice dated 15 July 2020 and served on 27 July 2020 constitutes an irregular step and must be set aside. Before me appears Mr P.M. Van Ryneveld with Mr J.H.F. Le Roux for the applicant/third party and Mr J.M.C. Johnson appears for the respondent.

Common cause facts

[2] The facts which are common cause between all concerned are fairly clear and simple. It is apposite to set them out in order to appreciate the issues and the decision in this judgment.

[3] The respondent, an institution of higher learning, contracted the applicant (a private entity), to perform services which included the installation and routing of cabling at its Bevoorrading Building on its campus. The plaintiff was one of the employees of the applicant assigned to carry out the works. It was during the performance of his duties on 12 November 2018 that he fell through the ceiling and allegedly sustained certain bodily injuries.

[4] The plaintiff caused summons to be issued against the respondent claiming inter alia past and future medical expenses, past and future loss of earnings as well as general damages. The respondent defended the action and on 19 March 2019 filed a plea on the merits denying liability incorporating a special plea of non-joinder. On 19 October 2019 the plaintiff filed a replication to the defendant’s special plea.

[5] On 25 March 2020 the respondent served a notice to amend its plea. The plaintiff did not object to it. The amended plea was filed on 16 July 2020 thus effecting the amendment. It must be noted that this step was outside the period stipulated by rule 28(5). On 27 July 2020 the Third Party Notice was served on the applicant. In response the applicant served and filed a notice in terms of rule 30(2)(b) on the respondent contending that the respondent has taken an irregular step. Despite the time afforded to remove the cause of complaint, the respondent failed to comply. These are the facts underpinning

the application before me.

Issues to be adjudicated

[6] The parties are in agreement that the pleadings were closed after the filing of the replication on 19 October 2019. The quintessence of the dispute is whether the amendment of the plea by the respondent amounted to the re-opening of the pleadings or not. If the answer is in the affirmative, whether such re-opening entitled the respondent to file the Third Party Notice without having to obtain leave of court in terms of rule 13(3)(b).

Submissions

[7] Mr van Ryneveld raised three pertinent points to sustain his argument why this application should succeed. Firstly, he pointed out that the explicit provisions of rule 29 refers to the close of pleadings. No mention or reference is made to the re-opening of the pleadings by way of an amendment. Therefore, once the pleadings are closed, any other process can only be embarked upon by leave of court. Secondly that the amendment had lapsed because it was not effected within the stipulated time frame. He placed his reliance on rule 28(5) which provides that such amendment may be effected within ten (10) days after the expiration of the period allowed for lodging an objection. The third point is premised on the finding that if the amendment is not null and void, then only the party affected by the amendment can do a consequential amendment to the existing pleadings as required by rule 28(8). The respondent is not such a party.

[8] In response, Mr Johnson submitted that the pleadings were re-opened and consequently the third party notice was properly filed. As such there was no irregular step taken by the respondent. Relying on the decision of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality[1] as authority, he emphasised that the re-opening of the pleadings paved the way for the filing of the third party notice. Turning to the point relating to the validity of the amendment, he argued that the application is about whether the filing of the third party notice constitutes an irregular step or not. The point argued by the applicant was not before court for consideration. In any event on the same point, the authority is that the amendment does not lapse as per decision of the court in Becker v MEC for the Department of Economic Development and Environmental Affairs[2]. Even if there was none, a window of opportunity in the form of an application for condonation still exists. He added that because there was no objection, the court can deal with the matter as though the pleadings were properly amended.

Legal position

[9] Rule 30(1) of the Uniform Rules states the following:-

“A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside.”

It is unnecessary to delve into an enquiry whether procedural requirements were met by the applicant prior to bringing the application. No issue is taken with that aspect. Therefore, the reliance of the applicant on the provisions of the aforementioned rule is on solid ground.

[10] As stated in preceding paragraphs, at the heart of the dispute is whether the amendment of the plea re-opened the pleadings. Rule 28 of the Uniform Rules of Court which regulates amendments does not make mention of re-opening of the pleadings. The submission that there is no such a practical step in modern litigation is a misnomer. The filing of the amendment to the plea altered the issues between the parties.

[11] The exposition of the legal position was stated in Natal Joint Municipal Pension Fund supra at para 15 by Wallis JA as follows:-

“The answer is that when pleadings are reopened by amendment or the issues between the parties altered informally, the initial situation of litis contestatio falls away and is only restored once 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. In Roman law, once this stage of proceedings was reached, a new obligation came into existence between the parties, to abide the result of the adjudication of their case. Melius de Villiers explains the situation as follows:

'Through litis contestation an action acquired somewhat of the nature of a contract; a relation was created resembling an agreement between the parties to submit their differences to judicial investigation. . . .'

When the parties decide to add to or alter the issues they are submitting to adjudication, then the 'agreement' in regard to those issues is altered and the consequences of their prior arrangement are altered accordingly. Accordingly, when in this case they chose to reformulate the issues at the commencement of the trial, a fresh situation of litis contestatio arose and the rights of the Fund as plaintiff were fixed afresh on the basis of the facts prevailing at that stage.”

[12] This paved the way for the filing of the third party notice. In the prevailing circumstances the respondent was not barred to file the third party notice. There was no reason to file the notice in terms of rule 30 because no irregular step had been taken by the respondent.

[13] At the outset, it is my considered opinion that the point pertaining to the validity of the amendment has no merit. It is a trite principle that the parties are bound by their pleadings and cannot raise a different or fresh issue that was not pleaded. The application as couched is about the setting aside of the third party notice not the point canvassed in argument by counsel dealing with the validity of the amendment. In Becker supra the court stated that “the failure to deliver an amendment within the stipulated time period cannot have the effect such “amendment” lapses”. The third point stands to suffer the same fate. It will serve no purpose to discuss these issues.

[14] Both counsel argued that costs should be awarded to the successful party. I intend not to deviate from the principle that costs follow the result.

Order

[15] For the aforegoing reasons, I make the following order:-

15.1 The application is dismissed with costs.

M. A. MATHEBULA, J

On behalf of plaintiffs: Adv. P.M. Van Ryneveld assisted by

Adv. J.H.F. Le Roux

Instructed by:

McIntyre & van der Post

BLOEMFONTEIN

On behalf of 2nd defendant: Adv. J.M.C. Johnson

Instructed by:

Phatshoane Henney

/roosthuizen

[1] 2012 (4) SA 593 (SCA)

[2] [2014] ZAECPEHC 43 (23 June 2014)