|Bongani Magoswana (the “Plaintiff”) instituted action against the Road Accident Fund (the “Defendant”) for the payment of damages arising from injuries sustained by the Plaintiff in a motor vehicle accident which occurred on 22 August 2007. The Plaintiff alleged, in his particulars of claim, that he was a passenger in a Mercedes-Benz motor vehicle which collided with a Man truck, and that the sole cause of the collision was the negligent driving of the driver of the Man truck. The Plaintiff sought to amend his particulars of claim by means of an application to amend (the “Application”), to the effect that the sole cause of the collision was the negligent driving of the driver of the Mercedes-Benz. The proposed amendment was opposed by the Defendant, on the premise that it would introduce a new cause of action and that consequently the Plaintiff’s claim arose from this new cause of action which had prescribed.|
In terms of the Uniform Rules of Court, the Plaintiff was required to apply for condonation for an extension of the time within which the Application was instituted. The Plaintiff’s notice of intention to amend was filed on 11 April 2018 and the Defendant’s notice of objection was filed on 4 May 2018. The Application was only launched on 26 October 2018, which fell well outside of the prescribed ten-day period in which to do so.
|The court firstly dealt with the condonation for the late filing of the Application and was of the view that while the Plaintiff’s reasons for the late filing were somewhat “poor and unpersuasive”, however that the evidence presented by medical practitioners indicated that the Plaintiff had sustained injuries which would impair his memory, and as such, would warrant the granting of the extension sought. The aforementioned was notwithstanding the fact that the delay would have had no prejudicial effect on the Defendant, as both parties were in agreement as to the identity of the negligent party. As such, the Application would satisfy the test of being in the “interest of justice” and the condonation could therefore be granted.
Thereafter, the court had to determine whether the proposed amendment introduced a new cause of action or not. Counsel for the Defendant submitted that the proposed amendment sought to introduce a new wrongdoer, the driver of the Mercedes-Benz, and that this would be in relation to a different claim and a different cause of action.
The court was of the view that the amendment would not introduce a claim for payment of a debt other than the debt which was claimed when summons was first issued. The court further contended that the Plaintiff had pleaded the “basic ingredients” necessary to satisfy a delictual claim, despite the fact that the grounds on which the claim were sought differed from the grounds pleaded in the initial papers, and that the underlying debt remained the same. As such, the Defendant would remain liable as the statutory wrongdoer, which liability arose from the provisions of the Road Accident Fund Act 56 of 1996 (the “Act”).
Therefore, the court held that the amendment would not introduce a new claim for a debt which had prescribed, as well as the fact that the amendment would not prejudice the Defendant, as the Plaintiff and Defendant both agreed on the circumstances surrounding the collision. The court therefore made an order that the Plaintiff’s application to amend his particulars of claim be granted and the Plaintiff was ordered to pay the costs for the Application.
|This case illustrates that while the identity of the wrongdoer, in a road accident claim involving a negligent driver, is important, it is not an essential element for a successful claim. Furthermore, should the Plaintiff amend the pleadings to change the identity of the wrongdoer, this would not introduce a new cause of action|
This case further illustrates that before granting an application for condonation for the extension of time periods, the court will consider whether there is prejudice to the opposing party and whether it is in the interest of justice to grant such an application for condonation.
Written by Jonathan Green and Simone Jansen Van Rensburg