Gamble Investments (Pty) Ltd v Santam Ltd and Another (2921/2017) [2020] ZAECPEHC 9 (28 April 2020)

Gamble Investments (Pty) Ltd v Santam Ltd and Another (2921/2017) [2020] ZAECPEHC 9 (28 April 2020)

The court found that the plaintiff's explanation for failing to lead expert evidence on quantification was not entirely convincing, as the pleadings and pre-trial definition of issues made clear that quantum was in dispute. The plaintiff's representatives either misconstrued the case or made a mistaken assumption, but this did not amount to inadvertence. Nevertheless, the court held that the prejudice to the plaintiff if not permitted to re-open its case would be decisive, as refusal would likely result in prescription of the claim and inability to pursue it further. The prejudice to the second defendant, while substantial, was outweighed by the interests of justice and the need to allow...

Citation
[2020] ZAECPEHC 9
Parties
Plaintiff: Gamble Investments (Pty) Ltd; Defendant: Santam Ltd; Defendant: PSG Wealth Financial Planning (Pty) Ltd
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
28 April 2020
Case Number
2921/2017
Procedural Posture
Civil Trial / Application to Re Open Plaintiff's Case After Close of Plaintiff's Evidence and Application for Absolution From the Instance
Outcome
Plaintiff's application to re-open its case is granted, with leave to recall and qualify its expert witness and lead specified evidence. Plaintiff is ordered to pay the costs of the application and wasted costs from the absolution application.
Judges
G.G Goosen
Legal Topics
Reopening of Case, Absolution From Instance, Quantification of Damages, Insurance Intermediary Liability
Civil Procedure Commercial and Corporate Reopening of Case Absolution From Instance Quantification of Damages Insurance Intermediary Liability

Case Brief

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Parties

Gamble Investments (Pty) Ltd

Plaintiff

Santam Ltd

Defendant

PSG Wealth Financial Planning (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Application to Re Open Plaintiff's Case After Close of Plaintiff's Evidence and Application for Absolution From the Instance

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to re-open its case after closing and after the second defendant's application for absolution from the instance.
  2. 2 Whether the plaintiff's explanation for failing to lead expert evidence on quantification of damages is sufficient to justify re-opening.
  3. 3 What prejudice would be suffered by each party if the application to re-open is granted or refused.

Ratio Decidendi

The court found that the plaintiff's explanation for failing to lead expert evidence on quantification was not entirely convincing, as the pleadings and pre-trial definition of issues made clear that quantum was in dispute. The plaintiff's representatives either misconstrued the case or made a mistaken assumption, but this did not amount to inadvertence. Nevertheless, the court held that the prejudice to the plaintiff if not permitted to re-open its case would be decisive, as refusal would likely result in prescription of the claim and inability to pursue it further. The prejudice to the second defendant, while substantial, was outweighed by the interests of justice and the need to allow...

Court Disposition

Plaintiff's application to re-open its case is granted, with leave to recall and qualify its expert witness and lead specified evidence. Plaintiff is ordered to pay the costs of the application and wasted costs from the absolution application.

Orders

  • The plaintiff is granted leave to re-open its case.
  • The plaintiff is granted leave to recall and qualify its expert witness, Mr D Elliot, and lead his evidence relating to: (a) the true value at risk of the building damaged by fire in June 2016; (b) the value of the loss suffered by the plaintiff, including demolition and debris removal; (c) the effect of the...