E D v Middelhoven (3013/15) [2017] ZAGPPHC 1189; 2018 (3) SA 180 (GP) (12 October 2017)

E D v Middelhoven (3013/15) [2017] ZAGPPHC 1189; 2018 (3) SA 180 (GP) (12 October 2017)

The court held that the plaintiff's proposed amendment sought to introduce a new cause of action based on medical negligence, which was distinct from the original contractual claim. The court found that, although Rule 28(4) does not mandate a formal application for every amendment, the plaintiff's amendment introduced a separate cause of action that had become prescribed under the Prescription Act. The court agreed with the defendant that the amendment could not be allowed as it sought to enforce a right that was extinguished by prescription. The application for amendment was therefore dismissed with costs.

Citation
[2017] ZAGPPHC 1189
Parties
Plaintiff: E D; Defendant: Dr J Middelhoven
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 October 2017
Case Number
3013/15
Procedural Posture
Interlocutory Application / Application for Amendment of Particulars of Claim Opposed and Decided
Outcome
Plaintiff's application for amendment of particulars of claim dismissed with costs.
Judges
P M Mabuse
Legal Topics
Amendment of Pleadings, Medical Negligence, Prescription Act, Cause of Action, Uniform Rules of Court Rule 28
Civil Procedure Delict Amendment of Pleadings Medical Negligence Prescription Act Cause of Action Uniform Rules of Court Rule 28

Case Brief

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Parties

E D

Plaintiff

Dr J Middelhoven

Defendant

Procedural Posture

Interlocutory Application / Application for Amendment of Particulars of Claim Opposed and Decided

Legal Issues

  1. 1 Whether the plaintiff's application for amendment of particulars of claim complies with Rule 28(4) of the Uniform Rules of Court.
  2. 2 Whether the proposed amendment introduces a new cause of action based on medical negligence distinct from the original contractual claim.
  3. 3 Whether the new cause of action introduced by amendment has become prescribed under the Prescription Act.

Ratio Decidendi

The court held that the plaintiff's proposed amendment sought to introduce a new cause of action based on medical negligence, which was distinct from the original contractual claim. The court found that, although Rule 28(4) does not mandate a formal application for every amendment, the plaintiff's amendment introduced a separate cause of action that had become prescribed under the Prescription Act. The court agreed with the defendant that the amendment could not be allowed as it sought to enforce a right that was extinguished by prescription. The application for amendment was therefore dismissed with costs.

Court Disposition

Plaintiff's application for amendment of particulars of claim dismissed with costs.

Orders

  • The plaintiff's application for amendment of her particulars of claim is dismissed with costs.