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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 75585/2013

Date: 10/07/ 2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA                  APPLICANT/ DEFENDANT

and

JEAN MARIA MNGUNI                                                              RESPONDENT/PLAINTIFF

Coram: HUGHES J

JUDGMENT

HUGHES J

[1] In this interlocutory application the applicant Passenger Rail Agency of South Africa (PRASA) is the defendant in the main action whilst the respondent, Jean Maria Mnguni, is the plaintiff. In this application I propose to cite the parties as applicant and respondent.

[2] The applicant seeks to amend its plea which application is opposed by the respondent. The necessity to bring this application to amend arose during the course of the trial. It is trite that an amendment to pleadings can occur at any stage of the proceedings but prior to judgement. See Firestone South Africa (Pty) Ltd v Gentirulo AG 1977 (4) SA 298 (A) at 306 F-G.

[3] The amendment sought by the applicant seeks to provide a defence which is lacking in the plea. The plea merely contains a bare denial. The applicant argues that it had indicated to the respondent that it would provide its version of the defence that it relies upon in the form of a discovery. They further argue that, that which is sought to be added as their version of a defence, was discovered in terms of rule 35(9). This was a statement of one of the security guards in the employ of the applicant. This statement was made available to the respondent and has been in her possession since 15 July 2016.

[4] On an examination of the purpose of rule 35(9) it is evident that the rule makes provision for the production of documents or tape recordings which one intends to use at trial. These documents and or tape recordings could either be admitted as what they purport to be or they would be placed in dispute by the opposing party. The party disputing the documents or tapes would require the party intending to use the said documents or tapes to prove these at trial. The proof thereof entails calling the author or deponent of the said document or tape.

[5] Even if one admits the documents or tapes this does not amount to an admission of the contents thereof. See Visser v 1 Life Direct Insurance Ltd 2015 (3) SA 69 (SCA) at BOH- 81A where Willis JA states:

"It is trite that the production in evidence of documents in terms of rule 35(10) of the Uniform Rules of Court, after these have been admitted in terms of rule 35(9), as happened in this case, does not extend to the truthfulness of the contents thereof.¹⁸ The documents are not evidence that the content thereof is true.¹⁹ The contents, unless admitted as being true, remain hearsay evidence and therefore inadmissible unless they qualify for admission under one of the recognised exceptions to the hearsay rule."²⁰ [Footnotes omitted]

[6] The applicant sought to put the version in the statement it intended to use to the respondent during cross-examination as its version of how the incident ensued. An objection was raised by the respondent to the effect that this version had not been pleaded by the applicant. After some debate it was correctly conceded, in my view, by the applicant that they were wrong to assume that "its version is [was] properly placed before the court by way of the statement [document]." That was stated by counsel for the applicant Adv. Mphela, from the bar.

[7] As I stated above the defence in the plea before me at the commencement of this trial was merely a bare denial. In seeking to place the version to be found in the statement as a defence the applicant ought to have amended its plea to encompass this version or defence.

[8] I now turn to deal with the amendment sought. From the outset I must state that there was no tardiness on the part of the applicant in that as soon as the applicant was made aware of the error it had made, it sought there and then to apply for the amendment. This ultimately culminated in this substantive application. The applicant rightly concedes that the amendment sought is not as a matter of right, but rather is an indulgence sought. See Gollach + Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) at 928D.

[9] Generally an amendment would be granted if it can be done without prejudice to the other party, if it raises no new issue which the other party is not prepared to meet and the cause of the amendment ought to be bone fide. Of paramount importance is that the applicant needs to explain the reasons for the amendment and show prima facia that they have a tribal issue, which is deserving for consideration.

[10] A tribal issue is explained as follows; a dispute, which if it is proved on the basis of the evidence foreshadowed by the applicant in his application, will be viable or relevant or a dispute which will probably be established by evidence thus foreshadowed. See Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa (5ed) at pgs 679-681.

[11] In this case, the proposed amendment is such that it provides a version of a defence, which is foreshadowed by the evidence, being the statement of the security guard, which is already on hand. In addition, the discovered security guard statement is relevant and viable to the adjudication of this trial.

[12] The crucial arguments advanced by the respondent is that:

(a) No explanation has been advanced by the applicant as to why the amendment is sought;

(b) the amendment sought by the applicant seeks to withdraw an admission of the incident in question;

(c) the amendment seeks to introduce an alternative defence of contributory negligence; and

(d) the amendment introduces an issue which the respondent has not prepared to meet.

[13] Adv. Coleman, for the respondent was at pains to point out that the incident which the applicant had conceded from the bar was such that it covered the "when, where and how the plaintiff was injured (the incident)".

[14] Addressing the provision of an explanation as to why the amendment is sought the applicant in my view has set out in it papers the reason why the amendment is sought. What the respondent seems to take issue with is the fact that the applicant had been advised by the respondent prior to trial that the defence on the papers was a bare denial and should have at that stage sought the amendment.

[15] I am of the view that from the papers and the record of the proceedings it is clearly evident that the applicant was under the misconception that they could advance their defence by way of discovery. The circumstances that the applicant found itself in to seek the said amendment in the first place is sufficiently explained in the applicant's papers and supplementary papers. Consequently, in my view a reasonable explanation has been tendered by the applicant.

[16] Turning to the alleged withdrawal of the admission of the incident by the applicant. The applicant interjected during the course of the respondent's opening address at the trial and tendered the admission formally on record by way of its advocate, Adv. Mphele, that it was "common course that the incident has been admitted in respect of the date, place and injuries sustained by the plaintiff." [from the recordings of the proceedings]

[17] As a result, the dispute was centred upon the negligence/ liability of the applicant. Even though this admission was tendered from the bar I found no mischief in allowing it as the admission assisted to shorten the trial proceedings.

[18] The applicant argues that the respondent misconstrued that its admission encompassing a concession of liability. This is so, the argument further goes, because it was pertinently clear and agreed by both the parties that I was to adjudicate on negligence/ liability. Thus the argument pertaining to the withdrawal of an admission of the respondent must fail.

[19] Did the applicant admit to the negligence/liability? From the recordings it is clearly not so. However, the respondent is adament that an admission of the incident is an admission of the negligence/liability. I do not agree with this argument in this case. Both parties were clear after the admission of the incident from the bar that what still remained for determination was negligence/liability. I cannot fathom how the respondent seeks to retract this, if this was not so what else is left for determination in respect of the issue of merits. There is no withdrawal of an admission of the incident as is argued by the respondent. In fact we find the concessions which have been made as regards the respondent's version actually assist in shorten the trial proceedings and thus is not prejudicial to the respondent.

[20] Initially, the applicant submitted that it was not pleading or relying on contributory negligence. In the amendment the applicant now retracts this submission and places reliance, in the alternative, on contributory negligence.

[21] Their submission in respect of the withdrawal of the concession is to the effect that, initially on the pleadings of the respondent there was no need to plead contributory negligence. However after evidence was adduced in chief and in cross­ examination thus far, the applicant contends that the evidence differs substantially from that pleaded. Thus warranting the inclusion of the alternative plea of contributory negligence.

[22] The case that the respondent ought to meet, has that changed to the prejudice of the respondent? I propose to deal with this aspect as it also answers to the previous submission about the inclusion of contributory negligence.

[23] The respondent contends that allowing the amendment would be prejudicial to their case as it now would introduce a new case which they would have to meet as it differs from the case that they came to trial to meet.

[24] The applicant argues that the applicant's case was initially a bare denial and thus the respondent must have prepare in respect of all aspects to prove their case, as everything was in dispute by virtue of the bare denial. The respondent is thus not prejudiced.

[25] I agree with the applicant that at the commencement of the trial the respondent must have prepared to put each and every aspect of its case before this court. However when the incident was admitted as to date, place and injuries of the respondent there was just the aspect of negligence for the respondent to prove. In my view the respondent would have always had to prove negligence and that is still the case now, even with the assertion of contributory negligence. This would have been in the ambit of the case that the respondent had to meet and this has not changed.

[26] In light of the above, the applicant has, in my view made out a case for the grant of the amendment sought thus the respondent opposition must fail. I further find that the respondent would not be prejudiced if the amendment sought is granted.

[27] The indulgence is sought by the applicant and it is only reasonable that they pay the wasted cost occasioned. The respondent not only seek the wasted cost occasioned, but do so on a punitive scale, on an attorney and client scale, and they also seek the costs of the trial dates being the 5^th and 6^th June 2017.

[28] With regards to such cost being awarded on an attorney and client basis, I am mindful that the cost order sought by the respondent is a punitive cost order. This sort of cost order is only granted in exceptional circumstances where litigation is frivolous, vexatious, reckless and malicious. See unreported case of Centre for Investigative Journalism PC and Another v Minister of Defence and the Military Veterans and another 2015 Case No.33729115 at para [12] where Makgoka J of this court stated the following:

"[12] On an overview of the authorities, the grounds on which the court may order a party to pay an opponent's attorney-and -clients scale costs, are confined to special circumstances indeed, for example where a party has been guilty of dishonesty or fraud or had vexatious, reckless and malicious, or frivolous motive or committed grave misconduct either in the transaction under enquiry or in the conduct of the case. See a comprehensive, but not exhaustive, list of instances where the court may order attorney-and-client costs, Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa (5ed) at pp971-973."

[29] There is absolutely no basis for the respondent to be granted the trial date costs as these would be awarded to the successful party at the end of the trial. The wasted costs occasioned by the application is what is due to the respondent as applications to amend are not just for the taking. Regarding a punitive costs order I am not convinced that the applicant was tardy, vexatious, dishonest, malicious, had frivolous motive or committed a grave misconduct in seeking the amendment. In the circumstances no case is made out by the respondent for a punitive cost order.

[30] Consequently the following order is made:

[30.1] The amendment sought by the applicant is duly granted.

[30.2] The applicant is ordered to pay the wasted cost occasioned by the application to amend on a party and party scale.

________________

W. Hughes

Judge of the High Court Gauteng, Pretoria

Appearances:

For the Applicant : E Coleman

Instructed by : Diale Mogashoa Attorneys

For the Defendant : R B Mphela

Instructed by : N Van Der Merwe Attorneys

Date heard : 29 June 2017

Date delivered : 10 July 2017

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