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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE - GRAHAMSTOWN CASE NO. 390/2006

Heard on 29 April 2010

Delivered on 20 May 2010

In the matter between:

NTSIKELELO KRAWA obo T K and

B K Plaintiff

and

ROAD ACCIDENT FUND Defendant

BLOEM A J :

[1] On 2 May 2004 Ntombentsha Krawa was a passenger in a motor vehicle which left the road and overturned. Mrs Krawa was killed in the accident. On 26 January 2006 her husband, the Plaintiff herein, instituted an action for loss of support against the Defendant in his personal capacity and representative capacity “as the father and natural guardian of his and the deceased’s minor children, namely T K … who was born on 17 January 1994 and B K … who was born on 17 September 1997”. He claims that the negligence of the driver of another vehicle caused the accident.

[2] On 29 March 2006 the Defendant filed its Plea wherein it admitted that the accident occurred on 2 May 2004 but it denied that the aforesaid driver was negligent. It pleaded that the accident was caused solely by the negligence of the driver of the vehicle in which the deceased was a passenger at the time of her death.

[3] On 3 September 2007 the action was set down for hearing on 7 November 2007. On 13 September 2007 the Defendant served a notice in terms of Rule 34 (1) of the Uniform Rules of Court on the Plaintiff wherein “it formally concedes the merits in favour of the Plaintiff and offers to pay the Plaintiff whatever damages he has suffered in consequence of his injuries sustained in the collision which occurred on 2 April 2004 to be proved in due course.” That notice contains factual inaccuracies. For example, the Plaintiff did not sustain any injuries in the collision nor did the collision occur on 2 April 2004. The Plaintiff claims damages arising from the death of his wife, not because he sustained injuries. The Plaintiff claims damages not only in his personal capacity but also in his representative capacity. Furthermore, it is common cause on the pleadings that the accident occurred on 2 May 2004, not 2 April 2004. These inaccuracies are, in my view, irrelevant to the issues raised in this application. The Plaintiff accepted the concession by letter dated 2 October 2007.

[4] On 10 October 2007 the parties held a pre-trial conference. Paragraph 2 of the minute of that conference reads as follows :

"The Defendant has formally conceded the merits in favour of the Plaintiff and only the aspect of quantum is to be determined.”

[5] On 7 November 2007 the action was postponed sine die.

[6] On 5 December 2008 the Defendant delivered a Notice of Intention to Amend its Plea. The effect of the proposed amendments, if granted, will be :

1. to deny that Thandeka is the Plaintiff’s natural child with the result that, if the allegation is correct, the Plaintiff has no legal capacity to represent her in the action; and

2. to deny that the Plaintiff received support from the deceased prior to and at the time of her death, the allegation being that the Plaintiff and the deceased lived separate lives, not as husband and wife at the time of her death.

[7] On 22 December 2008 the Plaintiff gave written notice of his intention to object to the proposed amendments. The grounds for objection are that the Defendant had formally conceded the merits of the Plaintiff’s claim, that the Plaintiff had accepted the Defendant’s tender to concede the merits of the Plaintiff’s claim and that, through the proposed amendments, the “Defendant purports to withdraw its concession of the merits of the claim”.

[8] On 5 March 2010 the action was set down for hearing on 29 April 2010.

[9] The Defendant did not lodge an application for leave to amend its Plea within 10 days from the date of filing of the Plaintiff’s written Notice of Objection to the proposed amendments, as it was required to do in terms of Rule 28 (4) of the Uniform Rules of Court. The Defendant served an application only on 22 April 2010 (two Court days before the hearing of the action, the application having been filed of record only on 23 April 2010), to be heard at the commencement of the trial on 29 April 2010, wherein it sought an order :

1. granting it leave to amend “their Plea in terms of Rule 55A (4)” (sic), the intention obviously being to amend its Plea as envisaged in the Notice of Intention to Amend; and

2. in the event of the Plaintiff opposing the application, that the Plaintiff be directed to pay all the costs incurred in connection with and incidental to the application on the scale as between attorney and client, alternatively directing that the costs of and incidental to the application be reserved for determination at the trial.

[10] When the matter was called on the morning of 29 April 2010 Ms Smit, counsel for the Plaintiff, informed me that she was prepared to make submissions on the application for amendment without the Plaintiff delivering answering affidavits. After Ms Smit and Mr Schoeman (the latter being counsel for the Defendant) had made submissions, I postponed the action sine die, reserved the judgment on the application for the amendment of the Defendant’s Plea and intimated that the costs occasioned by the postponement of the action would be dealt with in this judgment.

[11] Ms Smit submitted that the application for leave to amend the Defendant’s Plea should be dismissed because, when the Defendant conceded the merits, everything, except for the quantum of the Plaintiff’s damages, was disposed of. For this submission counsel relied on Tolstrup NO vs Kwapa NO 2002 (5) SA 73 (W). She submitted that the proposed amendments do not relate to the quantum of the Plaintiff’s damages. Rather, the submission continued, the proposed amendments relate to whether damages are payable to the Plaintiff and also to whether the Plaintiff has locus standi to claim damages on behalf of Thandeka. At 77F – G of the Tolstrup judgment the following is stated in this regard :

"An agreement or finding on liability (which is the equivalent of “the merits”) clearly disposes of everything bar the quantum of damages, and hence the willingness to afford the plaintiff interim payments. Quantum would not include a consideration of defences on the merits, be they defences raised by way of special plea, such as lack of jurisdiction, non locus standi, prescription or the like, or substantive defences such as absence of negligence, mistaken identity, contributory negligence and so on, all of which relate to whether damages are payable. Once that is out of the way, the parties can concern themselves with how much is payable.”

[12] To determine whether or not there is merit in the submission, it is necessary to look at the nature of the cause of action, more particularly the elements of the dependants’ action for damages for loss of support.

[13] In Evins vs Shield Insurance Co. Ltd 1980 (2) SA 814 (A) at 837E – F Corbett JA (as he then was) stated at 839A – B that :

“… [I]n the case of an action for damages for loss of support, the basic ingredients of the plaintiff's cause of action would be (a) a wrongful act by the defendant causing the death of the deceased, (b) concomitant culpa (or dolus) on the part of the defendant, (c) a legal right to be supported by the deceased, vested in the plaintiff prior to the death of the deceased, and (d) damnum, in the sense of a real deprivation of anticipated support. The facta probanda would relate to these matters and no cause of action would arise until they had all occurred.”

[14] An action for damages for damages for loss of the support has been described as a peculiar remedy. In Evins (supra) Corbett JA explained at 837H – 838A the peculiar nature of the remedy in the following terms :

“An essential and unusual feature of the remedy is that, while the defendant incurs liability because he has acted wrongfully and negligently (or with dolus) towards the deceased and thereby caused the death of the deceased, the claimant (the dependant) derives his right of action not through the deceased or from his estate but from the facts that he has been injured by the death of the deceased and that the defendant is in law responsible therefor. Only a dependant to whom the deceased was under a legal duty to provide maintenance and support may sue and in such action the dependant must establish actual patrimonial loss, accrued and prospective, as a consequence of the death of the breadwinner. These principles are trite and require no citation of authority.”

[15] There can be no doubt that the first two elements of the cause of action for loss of support, namely a wrongful act by the Defendant causing the death of the deceased and negligence (or dolus) on the part of the Defendant, have been covered by the Defendant’s concession. So far in the enquiry, the Defendant conceded that, through his negligence, the insured driver committed a wrongful act which caused the death of the deceased.

[16] Leaving the third element aside for the moment, there can be no doubt that the fourth element, the real deprivation of anticipated support, is an issue properly to be dealt with when the quantum of the Plaintiff’s damages is determined.

[17] That leaves me with the third element, namely whether the deceased, while alive, was under a duty to support the Plaintiff. Does this element fall to be determined under the merits or quantum of the Plaintiff’s claim? The question is whether, when the Defendant conceded the merits of the Plaintiff’s claim, it also conceded the third element. In my view paragraph 2 of the pre-trial minute disposes of this question. Therein the parties agreed that, after the concession, “only the aspect of quantum is to be determined” at the hearing which was scheduled to commence on 7 November 2007. By that agreement, read alone or against the background of the above concession, I understand the parties to have agreed that everything, but the quantum of the Plaintiff’s claim, was conceded. The parties intended the trial on 7 November 2007 to concern itself with only the quantum of the Plaintiff’s claim. Accordingly, the concession, as read with paragraph 2 of the minute of the pre-trial conference, means that the Defendant conceded that, through the negligence of the insured driver, he committed a wrongful act which caused the death of the deceased who, while alive, had a legal duty to support the Plaintiff, T and B.

[18] To summarise, when the Defendant conceded “the merits in favour of the Plaintiff” it conceded all the aspects of the Plaintiff’s claim except for “the aspect of [the] quantum [of the Plaintiff’s claim]”. The proposed amendments therefore clearly do not relate to the quantum of the Plaintiff’s claim. They relate to the merits of his claim.

[19] It follows that, in relation to the proposed amendments, when the Defendant conceded the merits of the Plaintiff’s claim, it conceded that the Plaintiff sues the Defendant in his personal capacity and in his capacity as the father and natural guardian of T and B and, while alive, the deceased had a legal duty to support the Plaintiff, T and B.

[20] The concession has all the essential elements of a compromise of the merits of the Plaintiff’s action. Since an agreement of compromise has been reached regarding the merits of the Plaintiff’s claim, the rights of the parties are regulated by that agreement.

[21] If the settlement agreement was made an order of Court, I would have been unable to correct, alter or set aside such order because it would have been definitive of the rights of the parties relevant to the merits of the Plaintiff’s claim. I would have been functus officio in respect of the merits of the Plaintiff’s claim and would have been unable to grant an amendment of the pleadings relevant to any aspect of the case save for aspects relevant to the quantum of the Plaintiff’s damages.

Schmidt Plant Hire (Pty) Ltd vs Pedrelli 1990 (1) SA 398 (D) at 407A -D;

Firestone South Africa (Pty) Ltd vs Genticura AG 1977 (4) SA 298 (A) at 306F – G.

[22] In this case the settlement agreement was not made an order of Court. This issue was dealt with as follows by Solomon J in Cachalia vs Harberer & Co. 1905 TS 457 at 464 :

"Now does it make any difference that no judgment was entered at the time, and that this settlement was merely a settlement between the parties which was not entered in the records of the Court? The authorities seem to me clear that this does not make any difference, that a transactio may be either a judicial one, which is entered in the records of the Court, or may be extra-judicial, but that the effect is the same. A compromise whether embodied in a judgment of the Court or extra-judicial has the effect of res judicata, and is an absolute defence to an action on the original contract.”

[23] In my view there is no reason not to follow the above dictum.

[24] The absence of an order of Court reflecting that the Defendant had conceded the merits of the Plaintiff’s claim is accordingly no different from a case where such order was indeed made. That being the case, the grant of the proposed amendments would result in me reopening the issues relevant to the merits of the Plaintiff’s claim. I do not have the power to do so. I accordingly do not have the power to grant the proposed amendments.

[25] The following order is accordingly made :

1. the Defendant’s application for leave to amend its Plea is dismissed with costs;

2. the Defendant is liable to pay the Plaintiff’s wasted costs occasioned by the postponement of the action on 29 April 2010 on the scale as between party and party, such costs to include the travelling and accommodation expenses of the Plaintiff’s attorney and counsel to attend court on 29 April 2010.

____________________________

BLOEM A J

Counsel for the Plaintiff : Ms T Smit

Instructed by : Malcolm Lyons & Brivik Inc.

Cape Town

Correspondent : Whitesides

Grahamstown

Counsel for the Defendant : Mr A D Schoeman

Instructed by : N N Dullabh & Co.

Grahamstown

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