South Africa Case Law

Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023)

Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023) [2025] ZASCA 45 (17 April 2025)

Court

Supreme Court of Appeal

Case number

886/2023

Judges

Mocumie, Kgoele, Smith, Unterhalter, Musi

The Supreme Court of Appeal held that material amendments reopened the pleadings, extinguishing the deceased’s general damages claim, but remitted the case on possible common-law development.

• Medical Negligence
• Transmissibility Of General Damages
• Amendment Of Pleadings
• Litis Contestatio
• Development Of Common Law
• Medical-negligence

Mtshwene v Road Accident Fund (44674/2020)

Mtshwene v Road Accident Fund (44674/2020) [2024] ZAGPPHC 1027 (7 October 2024)

Court

North Gauteng High Court, Pretoria

Case number

44674/2020

Judge

A.K. Ramlal

The court held that the plaintiff's claim for general damages is not transmissible to her estate because litis contestatio had not been reached at the time of her death. The court distinguished the Nkala case, noting its unique class action context and constitutional considerations, and reaffirmed the conservative common law position as set out in Ngubane v RAF. The court found no compelling factual or constitutional basis to depart from the settled principle. The plaintiff's dilatory conduct and lack of explanation for delays further weighed against any development of the law in this instanc…

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• Transmissibility Of General Damages
• Litis Contestatio
• Development Of Common Law
• Road Accident Claims

Chidi N.O. v Road Accident Fund (1931/2020)

Chidi N.O. v Road Accident Fund (1931/2020) [2023] ZALMPPHC 47 (10 July 2023)

Court

Limpopo High Court, Polokwane

Case number

1931/2020

Judge

Kganyago

The court held that the executor is entitled to proceed with the deceased's claim for both past loss of earnings and general damages. The claim for past loss of earnings is clearly transmissible and quantified by actuarial evidence. Regarding general damages, the court applied the principle from Nkala v Harmony Gold Mining, finding it immaterial whether the deceased died before or after litis contestatio, and that the executor may proceed with the claim for general damages, which will fall into the estate. The court also found that the complexity of the issues justified awarding costs on a Hi…

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• Road Accident Fund Claim
• Transmissibility Of General Damages
• Default Judgment
• Contingency Fee Agreement

DRDGOLD Limited and Another v Nkala and Others (688/2016)

DRDGOLD Limited and Another v Nkala and Others (688/2016) [2023] ZASCA 9; 2023 (3) SA 461 (SCA) (6 February 2023)

Court

Supreme Court of Appeal

Case number

688/2016

Judges

Ponnan, Van der Merwe, Molemela, Mothle, Salie

The Supreme Court of Appeal held that neither the certification order nor the declaratory order constituted an appealable 'decision' under section 16(1) of the Superior Courts Act. The certification order was a procedural device, not final or definitive of rights, and susceptible to alteration. The declarator was not dispositive of any relief and its impact remained uncertain until individual claims were brought. The interests of justice did not require piecemeal appeals, as such would delay the resolution of the class action and prejudice vulnerable claimants. Accordingly, the court lacked j…

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• Class Action Certification
• Appealability
• Transmissibility Of General Damages
• Interests Of Justice

Oliver N.O. v MEC for Health: Western Cape Provincial Department of Health and Another (18312/2014)

Oliver N.O. v MEC for Health: Western Cape Provincial Department of Health and Another (18312/2014) [2022] ZAWCHC 208; 2023 (2) SA 551 (WCC) (27 October 2022)

Court

Western Cape High Court, Cape Town

Case number

18312/2014

Judge

B P Mantame

The court found that the amendment of the deceased’s particulars of claim on 4 October 2017 was substantial and reopened the pleadings, causing litis contestatio to fall away. As a result, at the time of the deceased’s death, litis contestatio had not been reached and her claim for general damages was not transmissible to her estate. The court held that the settled common-law position remains that non-pecuniary claims for general damages lapse if the plaintiff dies before litis contestatio. The constitutional arguments advanced by the plaintiff were rejected on the basis that there was no fac…

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• Litis Contestatio
• Transmissibility Of General Damages
• Amendment Of Pleadings
• Medical Negligence
• Bill Of Rights Consistency

Ngubane v Road Accident Fund (2020/20008)

Ngubane v Road Accident Fund (2020/20008) [2022] ZAGPJHC 275; 2022 (5) SA 231 (GJ) (26 April 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2020/20008

Judge

C E Thompson

The court held that, in terms of established Supreme Court of Appeal authority and the common law, a claim for general damages does not transfer to a deceased estate unless litis contestatio has been reached, which is generally the close of pleadings. In this case, the defendant never entered an appearance, pleadings never closed, and litis contestatio was not reached before the plaintiff's death. The majority approach in Nkala, which developed the common law to allow transmissibility of general damages prior to litis contestatio, was found not to be binding outside the specific context of cl…

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• Transmissibility Of General Damages
• Road Accident Fund Act
• Default Judgment
• Litis Contestatio
• Development Of Common Law

Nortje v Road Accident Fund and Another (D11635/2015)

Nortje v Road Accident Fund and Another (D11635/2015) [2022] ZAKZDHC 2; 2022 (4) SA 287 (KZD) (4 February 2022)

Court

Kwazulu-Natal High Court, Durban

Case number

D11635/2015

Judge

Masipa

The court held that the plaintiff's claim for general damages is not transmissible to the estate because the action was instituted after the death of the deceased and litis contestatio had not been reached. The authorities relied upon, including Nkala, only allow for transmissibility where the action had commenced before death. The plaintiff failed to provide sufficient factual support for the development of the common law beyond the scope of Nkala. The court found that the constitutional challenge must fail, as the requirements for incremental development of the common law were not met. The…

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• Transmissibility Of General Damages
• Litis Contestatio
• Development Of Common Law
• Road Accident Fund Act
• Constitutional Challenge
• Estate Claims