Opperman and Another v Ethekwini Municipality and Another (6767/2012) [2018] ZAKZDHC 66 (11 December 2018)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case No: 6767/2012

In the matter between:

Sharon Anne Opperman

First Plaintiff

Damian Wade Opperman

Second Plaintiff

and

Ethekwini Municipality

First Defendant

Milling Technicks (Pty) Ltd

Second Defendant

Judgment

Lopes J:

[1] This is an application for leave to amend the plaintiffs' particulars of claim dated the 10th of June 2013, pursuant to the provisions of rule 28 of the Uniform rules of court. The plaintiffs sue for damages as a result of injuries sustained by the second plaintiff when he was injured after falling from his motorcycle. The plaintiffs delivered their notice of intention to amend their particulars of claim on the 31st of October 2017. On the 9th of November 2017 the second defendant delivered a notice of intention to oppose the proposed amendment. The first defendant did not oppose the amendment.

[2] The original particulars of claim allege that the second plaintiff was travelling on a motorcycle along the R102 between Warner Beach and Doonside in Amanzimtoti when the incident occurred. The incident allegedly occurred because of roadworks carried out by the defendants. The allegation is made in paragraph 7 of the particulars of claim that:

'7.

The said persons who carried out the roadworks were negligent in one or more of the following respects:

7.1 they resurfaced the road in such a manner that the resurfaced road constituted a danger to motorist (sic) inasmuch as:

7.1.1 they raised the level of the road surface above the level of an existing manhole which protruded into the road;

7.1.2 they created a dangerous depression on the road surface extending to the curb (sic);

7.2 they left the newly resurfaced road on 23rd November 2010:

7.2.1 without taking reasonable steps to adequately warn motorist (sic) of the existence of the aforementioned hazard;

7.2.2 without taking reasonable steps to cause the aforementioned hazard to be adequately visible to motorists;

7.2.3 without taking reasonable steps to divert traffic from the aforementioned hazard;

7.2.4 without taking reasonable steps to ensure that the aforementioned hazard was adequately lit up with street lights.'

[3] The plaintiffs' notice of intention to amend its particulars of claim seeks to amend paragraph 7 as follows:

The aforesaid employees and/or agents of the first defendant acted within the course and scope of their employment alternatively employees and/or agents of the second defendant acting within the course and scope of their employment were negligent in one or more of the following respects:

7.1 They resurfaced the road in such a manner that the resurfaced road constituted a danger to motorists in so much as:

7.1.1 they raised the level of the road surface of the R102 creating an uneven surface on the left side of the left lane heading in a southerly direction;

7.1.2 they created a dangerous depression on the road surface extending to the curb (sic);

7.2 They left the newly resurfaced road on the 23rd November 2010:

7.2.1 without taking reasonable steps to adequately ·warn motorist (sic) of the existence of the aforementioned hazard;

7.2.2 without taking reasonable steps to cause the aforesaid hazard to be adequately visible to motorists;

7.2.3 without taking reasonable steps to divert traffic from the aforementioned hazard;

7.2.4 without taking reasonable steps to ensure that the aforementioned hazard was adequately lit up with street lights.'

The underlined portions of the amended paragraph 7 set out above are those parts of the original paragraph 7 which were amended.

[4] The basis upon which amendments should be allowed is set out in Affordable Medicines Trust & others v Minister of Health & others [2005] ZACC 3; 2006 (3) SA 247 (CC) para 9 where Ngcobo J stated:

The principles governing the granting or refusal of an amendment have been set out in a number of cases. There is a useful collection of these cases and the governing principles in Commercial Union Assurance Co Lid v Waymark NO. The practical rule that emerges from these cases is that amendments will always be allowed unless the amendment is ma/a fide (made in bad faith) or unless the amendment will cause an injustice to the other side which cannot be cured by an appropriate order for costs, or "unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed". These principles apply equally to a notice of motion. The question in each case, therefore, is, what do the interests of justice demand?'

[5] The second defendant raises three points in its objection to the proposed amendments to the plaintiffs' particulars of claim:

(a) The effect of the amendment is to change the place where the collision occurred, the way in which the collision occurred and the alleged act of negligence which is said to have caused the collision. Because there is insufficient information as to where the collision occurred, how it occurred, and the manner in which the defendants allegedly acted negligently, the proposed amendments will cause the pleadings to be excipiable as vague and embarrassing;

(b) There is no adequate explanation as to how the changed version of the collision came about;

(c) The plaintiffs seek to amend their pleadings by introducing a new and different collision, constituting a new cause of action which has prescribed.

[6] The plaintiffs' right of action is for injuries sustained by the second plaintiff pursuant to a motorcycle accident caused by the alleged negligence of one of the defendants. The facts pleaded relate to a repair of the roadway in the vicinity of the accident which created a dangerous situation for the second plaintiff.

See: Mazibuko v Singer 1979 (3) SA 258 (W) at 2658-G.

[7] I do not believe that there can be any suggestion that the proposed amendment in any way renders the particulars of claim vague and/or embarrassing. If the second defendant remains uncertain about the exact place of the collision, it could resort to the uniform rules, and request further particulars. In addition, such particulars are

routinely requested at rule 37 conferences. If the matter proceeds to trial and the plaintiffs are unable to identify the exact place where the incident took place, the learned Judge hearing the matter will have to decide whether there is sufficient evidence, in line with the pleadings, which enables a decision to be made in favour of the plaintiffs. If there is not, the defendants will be absolved from the instance.

[8] In this regard it is relevant that the second defendant has annexed to its answering affidavit a Reconstruction Report dated September 2017, which was compiled by one Luchas Steenkamp. In that report, there is a photograph of retired Captain van Niekerk, pointing out the final position of the motorcycle and the second plaintiff after the incident. Below that photograph is another one depicting the actual incident scene, as indicated by Captain van Niekerk. He is the person who provided the information relied upon by the plaintiffs which precipitated their amendment. Any suggestion that the second defendant has been left in the dark regarding the place of the incident is without merit.

[9] The proposed amendment changes the particulars of claim from alleging

that the level of the road had been altered by road works from 'above the level of an existing manhole which protruded into the road' to the more general description that by altering the level of the road the defendants were 'creating an uneven surface on the left hand side of the lane heading in a southerly direction'. This amendment merely assists in clarifying the particular conduct of the defendants which caused the second plaintiff to lose control of his motorcycle. There can be no suggestion of any injustice caused to the second defendant by the proposed amendment.

[10] With regard to the obligation of the plaintiffs to set out the necessity for the amendment, that has been fully dealt with by the plaintiffs' attorney in her affidavit to found the amendment. She sets out that subsequent to the service of the summons the plaintiffs traced an eye witness (the very same Captain van Niekerk referred to above), who has identified more accurately the position of the incident. In my view, having decided that the particulars of claim did not accurately reflect the exact place where the collision occurred, the plaintiffs' attorneys would have been remiss had they not brought the application for leave to amend. They have done so before any evidence is led in the trial. In those circumstances I have great difficulty in envisaging any prejudice to the second defendant at all, particularly in the light of its expert having interviewed Captain van Niekerk at the scene. This is not a case where evidence has been led and the plaintiffs finds themselves in the position that they need to change their particulars of claim, because, as it were, 'the shoe now pinches'.

[11] The determination of whether the claim of the plaintiffs, as amended, constitutes such a deviation from the original particulars of claim that it can be said to have prescribed, is based purely on the relationship between the facts pleaded before and after the amendment. In my view they in no way deal with the right of action which the plaintiffs have against the defendants. The amended particulars of claim reveal the claim of a right which is in no sense different from that which was originally pleaded. It is undoubtedly the same claim. I do not believe that it can be argued that the particulars of claim, either before or after the amendment, are excipiable.

[12] Accordingly, in my view there can be no suggestion that the plaintiffs' claim in its amended form is one which has prescribed.

See: Mazibuko v Singer 1979 (3) SA 258 (W) at 265D-266C.

[13] One can easily envisage a situation where the second plaintiff may be unaware of the exact place where the incident occurred. That does not render the action unenforceable, or the particulars of claim as they

are sought to be amended, excipiable.

[14] With regard to costs:

(a) The normal approach in opposed applications to amend is that the applicant bears the costs where the respondent has good grounds for opposing the application. However, even where the opposition is reasonable, a respondent may be ordered to pay the costs. In each case the court will exercise a discretion based upon the particular facts of the case.

(b) In this matter, common sense should have prevailed once the notice of intention to amend was served, and it should not have been opposed. The opposition has dragged the matter out from the 30th November 2017, for over a year. The matter is one of great financial importance to the plaintiffs, in circumstances where the second plaintiff sustained extremely serious injuries, and should accordingly have been dealt with expeditiously by all concerned.

(c) I do not, however, believe that the opposition warrants a punitive order for costs.

[15] I accordingly grant an order in terms of paragraph 1 of the notice of motion dated the 21st of November 2017. I make a further order that the respondent is to pay the costs of the opposed application, such costs to include those consequent upon the employment of two counsel.

Lopes J

Date of hearing:

11th of December 2018.

Date of judgment:

19th of December 2018.

For the applicants:

Mr M Pillemer SC, with him K C McIntosh

(instructed by Tharrington-Smith & Silver).

For the second respondent: Mr J C King SC (instructed by Garlicke & Bousfield Inc).