Opperman and Another v Ethekwini Municipality and Another (6767/2012) [2018] ZAKZDHC 68 (19 December 2018)

Opperman and Another v Ethekwini Municipality and Another (6767/2012) [2018] ZAKZDHC 68 (19 December 2018)

The court held that the proposed amendment does not render the particulars of claim vague or embarrassing, as the defendants can request further particulars if necessary. The amendment merely clarifies the conduct of the defendants alleged to have caused the accident and does not introduce a new cause of action. The plaintiffs acted appropriately in seeking the amendment upon discovering new evidence, and there is no prejudice to the defendants, especially as the amendment is made before trial and both parties have access to the same information. The claim remains fundamentally the same and is not excipiable or prescribed. The opposition to the amendment was unwarranted, and costs are...

Citation
[2018] ZAKZDHC 68
Parties
Plaintiff: Sharon Anne Opperman; Plaintiff: Damian Wade Opperman; Defendant: Ethekwini Municipality; Defendant: Milling Technicks (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
19 December 2018
Case Number
6767/2012
Procedural Posture
Leave to Amend / Application for Leave to Amend Particulars of Claim Prior to Trial
Outcome
Leave to amend the particulars of claim is granted. Costs of the opposed application are awarded against the respondent, including costs for two counsel.
Judges
Lopes
Legal Topics
Amendment of Pleadings, Negligence, Roadworks Liability, Vagueness and Embarrassment, Prescription of Claims
Civil Procedure Delict Amendment of Pleadings Negligence Roadworks Liability Vagueness and Embarrassment Prescription of Claims

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Parties

Sharon Anne Opperman

Plaintiff

Damian Wade Opperman

Plaintiff

Ethekwini Municipality

Defendant

Milling Technicks (Pty) Ltd

Defendant

Procedural Posture

Leave to Amend / Application for Leave to Amend Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the proposed amendment to the particulars of claim renders the pleadings vague and embarrassing.
  2. 2 Whether the amendment introduces a new cause of action that has prescribed.
  3. 3 Whether the defendants will suffer prejudice as a result of the amendment.

Ratio Decidendi

The court held that the proposed amendment does not render the particulars of claim vague or embarrassing, as the defendants can request further particulars if necessary. The amendment merely clarifies the conduct of the defendants alleged to have caused the accident and does not introduce a new cause of action. The plaintiffs acted appropriately in seeking the amendment upon discovering new evidence, and there is no prejudice to the defendants, especially as the amendment is made before trial and both parties have access to the same information. The claim remains fundamentally the same and is not excipiable or prescribed. The opposition to the amendment was unwarranted, and costs are...

Court Disposition

Leave to amend the particulars of claim is granted. Costs of the opposed application are awarded against the respondent, including costs for two counsel.

Orders

  • Leave to amend the particulars of claim in terms of paragraph 1 of the notice of motion dated 21 November 2017 is granted.
  • The respondent is ordered to pay the costs of the opposed application, including costs consequent upon the employment of two counsel.