SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case no: 5899/2017
In the matter between:
ALBERTUS JOHANNES PETRUS DREYER Plaintiff/Applicant
and
THE METSIMAHOLO LOCAL MUNICIPALITY1 Defendant/Respondent
CORAM: Opperman, J
HEARD ON: 5 August 2021
DELIVERED ON: The judgment was handed down electronically by circulation to the parties’
legal representatives by email and release to SAFLII on 23 August 2021. The date and time for hand-
down is deemed to be 23 August 2021 at 15h00.
INTRODUCTION
[1] This is an opposed application to an Application to Amend the Particulars of
Claim of the applicant in terms of Rule 28(4) of the Uniform Rules of Court.2
1 “The municipality”.
2 Rule 28: “Amendments to pleadings and documents” prescribes as follows:
(1) Any party desiring to amend any pleading or document other than a sworn statement, filed
in connection with any proceedings, shall notify all other parties of his intention to amend
and shall furnish particulars of the amendment.
(2) The notice referred to in subrule (1) shall state that unless written objection to the proposed
amendment is delivered within 10 days of delivery of the notice, the amendment will be
effected.
(3) An objection to a proposed amendment shall clearly and concisely state the grounds upon
which the objection is founded.
(4) If an objection which complies with subrule (3) is delivered within the period referred to in
subrule (2), the party wishing to amend may, within 10 days, lodge an application for leave
to amend.
[2] The case has a peculiar history if the versions and litigatory conduct of the
municipality are regarded. I will deal with it when I discuss the events that gave
rise to the application at hand. The crux of the litigation or dispute is the cause
of action.
[3] The core and atmosphere of the case lie in the words of De Klerk J in Buchner
and another v Johannesburg Consolidated Investment Co Ltd 1995 (1) SA 215
at 216H-J:
Headnote
The necessity, when pleading, to plead material facts does not have its origin in Rule 18 of the
Uniform Rules of Court. It is fundamental to the judicial process that the facts have to be
established. The Court, on the established facts, then applies the rules of law and draws
conclusions as regards the rights and obligations of the parties and gives judgment. A
summons which propounds the plaintiff's own conclusions and opinions instead of the material
facts is defective. Such a summons does not set out a cause of action. It would be wrong if a
Court were to endorse a plaintiff's opinion by elevating it to a judgment without first scrutinising
the facts upon which the opinion is based. (At 216H/I-J.)
THE CAUSE OF ACTION
(5) If no objection is delivered as contemplated in subrule (4), every party who received notice
of the proposed amendment shall be deemed to have consented to the amendment and
the party who gave notice of the proposed amendment may, within 10 days of the expiration
of the period mentioned in subrule (2), effect the amendment as contemplated in subrule
(7).
(6) Unless the court otherwise directs, an amendment authorized by an order of the court may
not be effected later than 10 days after such authorization.
(7) Unless the court otherwise directs, a party who is entitled to amend shall effect the
amendment by delivering each relevant page in its amended form.
(8) Any party affected by an amendment may, within 15 days after the amendment has been
effected or within such other period as the court may determine, make any consequential
adjustment to the documents filed by him, and may also take the steps contemplated in
rules 23 and 30.
(9) A party giving notice of amendment in terms of subrule (1) shall, unless the court otherwise
directs, be liable for the costs thereby occasioned to any other party.
(10) The court may, notwithstanding anything to the contrary in this rule, at any stage before
judgment grant leave to amend any pleading or document on such other terms as to costs
or other matters as it deems fit.
2
[4] It is imperative to understand, recognize and know the cause of action as
presented by the applicant; it is also crucial to revisit the definition of a “cause
of action” in our law.
[5] In McKenzie v Farmers’ Cooperative Meat Industries Ltd 1922 AD 16 at 23 it
was stated that a cause of action to be:
It has been defined in Cook v Gill (L.R., 8 C.P. 107) to be this: 'every fact which it would be
necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of
the Court. It does, not comprise every piece of evidence which is necessary to prove each fact,
but every fact which is necessary to be proved. It has been suggested to-day in argument that
this definition is too broad, but I cannot assent to this, and I think the definition is right.' This
definition was adopted by the Cape Provincial Division in the case of Belfort v Morton (1920
CPD 589), and in my opinion it was rightly so adopted. Also, in Evins v Shield Insurance Co Ltd
1980 (2) 814 A at 825G it was succinctly and effectively defined as: “the factual basis/set of
material facts that begets the plaintiff’s legal right to action. The material facts which the plaintiff
in the present case has to prove to support his right to judgment…”
The cause of action as alleged by the applicant
[6] The unamended Particulars of Claim dated 13 November 2017 and issued on
14 November 2017 sketch the principal factual cause of action.
1. At 22h30 on 27 December 2016 and whilst it was raining, the
plaintiff/applicant (“Mr. Dreyer/applicant”) an unemployed adult male
born on 18 April 1970 residing at [……] Street, […….], Sasolburg, Free
State Province, drove a Ford Fiesta 1.6 with registration number [……..]
(“the vehicle”) from an eastern to a western direction in Langeberg
Street, Sasolburg, Free State Province.
2. The driver was allegedly unaware of a disguised hazard and could,
allegedly, not have reasonably became aware of the hazard despite the
exercise of reasonable care.
3. The vehicle hit the allegedly disguised hazard, causing the driver to lose
control of the vehicle and the vehicle collided into a tree on the southern
side of Langeberg Street.
3
4. The driver suffered the following bodily injuries in the collision:
a. Dislocation of the left hip;
b. fracture with fragmentation of the left hemi-pelvis;
c. severe soft tissue injuries to the left hip.
5. The defendant/respondent is Metsimaholo Local Municipality (“the
Municipality”), a municipality and organ of state duly constituted and
demarcated as such in terms of section 155 of the Constitution of the
Republic of South Africa, 1996 read with Part 2 of Chapter 1 of the
Municipal Structures Act 117 of 1998 and the Municipal Systems Act 32
of 2000 with separated legal personality in terms of section 2(d) 3 of the
Municipal Systems Act and with principle place of business at Civic
Centre, Fichardt Street, Sasolburg, Free State Province.
6. The municipality, according to the applicant and not disputed by the
respondent, at all relevant times and specifically on 27 December 2016
exercised legislative and executive authority within the municipal
boundaries of Sasolburg inclusive of Vaalpark (A residential area in
Sasolburg) and Langeberg Street in Vaalpark.
7. The applicant claims that the municipality had and has the statutory duty
in terms of section 44 of the Municipal Systems Act to promote and
3
2. Legal nature. —A municipality—
(a) is an organ of state within the local sphere of government exercising legislative and
executive authority within an area determined in terms of the Local Government: Municipal
Demarcation Act, 1998;
(b) consists of—
(i) the political structures and administration of the municipality; and
(ii) the community of the municipality;
(c) functions in its area in accordance with the political, statutory and other relationships
between its political structures, political office bearers and administration and its
community; and
(d) has a separate legal personality which excludes liability on the part of its community for the
actions of the municipality.
4 Section 4. Rights and duties of municipal councils.
(1) The council of a municipality has the right to
(a) govern on its own initiative the local government affairs of the local community;
4
undertake development in the municipality; promote a safe and healthy
environment in the municipality and contribute to the progressive
realisation of the fundamental rights contained in the Constitution.
8. On 27 December 2016 construction and/or maintenance of electrical
and/or water and/or communication amenities/reticulation/services was
conducted across the width of Langeberg Street which construction
and/or maintenance necessitated the digging of an excavated trench
across the width of Langeberg Street after the removal of the asphalt
road top surface.
9. Subsequent to the completion of the construction the excavated trench
was backfilled only with gravel without the asphalt road top-surface
above the backfilled trench.
10. During the evening of 27 December 2016 prior to 22h30 a rain shower
caused rain water to seep into the trench filled with gravel. The backfill
(b) exercise the municipality’s executive and legislative authority, and to do so without
improper interference; and
(c) finance the affairs of the municipality by
(i) charging fees for services; and
(ii) imposing surcharges on fees, rates on property and, to the extent authorised by
national legislation, other taxes, levies and duties.
(2) The council of a municipality, within the municipality’s financial and administrative capacity
and having regard to practical considerations, has the duty to
(a) exercise the municipality’s executive and legislative authority and use the resources of
the municipality in the best interests of the local community;
(b) provide, without favour or prejudice, democratic and accountable government;
(c) encourage the involvement of the local community;
(d) strive to ensure that municipal services are provided to the local community in a
financially and environmentally sustainable manner;
(e) consult the local community about
(i) the level, quality, range and impact of municipal services provided by the municipality,
either directly or through another service provider; and
(ii) the available options for service delivery;
(f) give members of the local community equitable access to the municipal services to which
they are entitled;
(g) promote and undertake development in the municipality;
(h) promote gender equity in the exercise of the municipality’s executive and legislative
authority;
(i) promote a safe and healthy environment in the municipality; and
(j) contribute, together with other organs of state, to the progressive realisation of the
fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution.
(3) A municipality must in the exercise of its executive and legislative authority respect the rights
of citizens and those of other persons protected by the Bill of Rights.
5
was eroded by the rain water. The water also filled the trench and
disguised the hazard that was created by the cavity.
The municipality’s plea
[7] The municipality only replied to the summons on 11 April 2018 and pleaded, in
effect, a bare denial. In summary it was pleaded that:
1. The road surface of Langeberg Street “is and still remains a maintained
road, with no potholes nor trenches, as alleged, on the alleged date of
27th December 2016 or any time thereat.”
2. That the road was in good condition, till date and there was no
construction on the road on that day.
3. “Save to admit that the defendant has a legal duty to maintain roads, for
road users, within the financial and other means, the allegations
contained in paragraphs 8.1 – 8.2 are denied as if specifically traversed.”
[8] Mr. Dreyer replied on the 3rd of May 2018 with testimony and evidence that
proved the condition of the road as on 26-27 December 2016.
THE FACTORS THAT PROMPTED THE RULE 28(4) APPLICATION
[9] Blissfully confident of their defence the municipality partook in a Pre-Trial
Conference on 4 October 2018. A formal Pre-Trial Inquiry was held by this
Court and the matter was certified to be ready for trial and three days were
allocated on 26 November 2018.
[10] On 1 February 2019 the applicant gave notice of an amendment of paragraph
3 of their Particulars of Claim in terms of Rule 28(1):
By adding in paragraph 3 the following:
3.4 Owned and/or operated and/or generated and/or transmitted and/or distributed
electricity and network services within the jurisdiction of the Defendant.
3.5 In terms of section 84(1)(c) of the Municipal Structures Act, 117 of 1998, have the
function and power of bulk supply of electricity, which included for the purpose of such
supply, the transmission, distribution and where applicable generation of electricity
within the jurisdiction of the Defendant.
6
3.6 Had the executive authority over and the right to reticulate and distribute electricity
within the jurisdiction of the Defendant and/or was licensed to do so as defined and
contemplated in Section 1 of the Electricity Regulation Act, 2006 (Act 4 of 2006).
3.7 Was the owner of and duly responsible for all infrastructure relevant to the
abovementioned paragraphs inclusive but not limited to the streetlights and lampposts
reticulated along the Langeberg Street in Vaalpark at the time.
[11] The amended pages in terms of Rule 28(7) were filed on 13 March 2019.
[12] The municipality went silent and on 3 April 2019 the applicant launched an
application to compel and for the municipality to be directed to deliver its reply
to the applicant’s request for further particulars. The order was granted on 11
April 2019.
[13] The order followed an application for further particulars on the position of the
municipality in regard to the legal relationship of the municipality with an alleged
contractor that conducted and undertook electrification works at the scene of
the accident.
[14] On 6 May 2019 the municipality reply to the request for further particulars and
maintained that the particulars requested amounts to a new cause of action and
is in the alternative vague and embarrassing. It seems as if the municipality did
not know or realise at this stage that they did indeed allow a contractor to do
works on the road. Hence the plea and the resistance or neglect to supply
further particulars.
[15] On 6 August 2019 the municipality launched an application to compel Mr.
Dreyer to supply further particulars on the hospital records pertaining to his
injuries. An Opposed Motion followed. The application to compel was dismissed
with costs.
7
[16] On 15 December 2020 the municipality served Mr. Dreyer with a notice of
proposed amendment of their plea incorporating a Special Plea of non-joinder
or mis-joinder.
[17] For the first time and out of the blue, allegations of fact which was previously
withheld by the municipality and of which only the municipality had near
exclusive knowledge and which could not have been known to Mr. Dreyer, was
pleaded. The new facts pleaded by the municipality came about three years
after the date of the incident. The notice of the claim was at first issued against
the municipality as far back as 14 November 2017.
[18] Imperative is that the Municipality’s original plea dated 10 April 2018 was one
of bare denial.
[19] A First Special Plea followed the bare denial and that was one of non-joinder.
A Second Special plea of misjoinder followed. This was on 16 February 2021.
[20] In these, the Special Pleas, the municipality now specifically pleaded that the
road condition, resultant hazard and damage causing event was triggered by a
property developer that routed electrical services across the road surface for
development purposes and not the municipality.
[21] The undisputed evidence is that the municipality consented to a wayleave in
favour of the property developer to increase electricity reticulation across the
road surface.
[22] Although the municipality remained ex lege responsible for the cause of action
that eventuated in litigation ex delicto, the factual basis has changed due to the
information pleaded by the municipality and only in 2020. It still goes to the
failure of the municipality to properly manage the reticulation, to enforce proper
road rehabilitation or effect warning of obvious hazardous road conditions. The
only change is that the hazardous conditions were physically caused by the
developer. The liability element of delict took a twist to include the developer
8
factually but it did not alter in any way or form the legislative duties,
responsibility and liability of the municipality. The municipality remained the
principal custodian of the road and the safety of the users.
[23] The information that was now forthcoming from the municipality was within their
exclusive knowledge which were neither previously pleaded nor known by, or
reasonably ascertainable by Mr. Dreyer.
[24] The specific and relevant plea by the municipality was that:
… the Defendant pleads that the alleged construction was done by the developer, Mr. George
Roger and whom the Plaintiff failed to join him in these proceedings albeit the notice boards
were showing the names of the developer/contractor and further denying that any excavation
was done on the specific road.
and
… the alleged trench was about 4cm and 3 cm away from the culvert designed for storm water
to be conveyed so that it does not stay on the surface and this has been and still is working;
and accordingly, the Defendant denies the content of the paragraph…
[25] It stands undisputed that the works could only be conducted with the
administrative consent of the municipality and the wayleave that was granted
to the developer by the municipality.
[26] The municipality was the author of the written authority of the consent and
wayleave.
[27] The municipality never and up until this application in 2021, nor timeously;
instituted Third Party proceedings against the landowner/developer or joined
said party to the action whilst knowing since the beginning that their conduct,
under the legislatively promulgated supervision of the municipality, will in the
promotion of the Administration of Justice, be the appropriate legal process.
The court had to be informed of this fact to adjudicate the case effectively and
judicially. They only dropped the information into the litigation in 2020; years
after the action was initiated.
9
[28] The Municipality had a responsibility, in the least, to have disclosed the
information in their Original Plea.
[29] The result of the conduct of the municipality is that an amendment of the
Particulars of Claim was imperative to promote the effectiveness of the process
and trial. These are the reasons:
1. Mr. Dreyer only became and could through exercise of reasonable care gain
knowledge of the specific facts when it was pleaded by the municipality.
2. The municipality remains responsible for the conditions that caused the
accident.
3. As result of the plea the applicant was able to ascertain the circumstances
surrounding the wayleave granted to the contractor.
4. It became important to demarcate the statutory duty of the municipality’s
relation to the contractor. This included the statutory framework and the
specific duties and obligations.
5. The wrongful, causal negligent breach in the context of the newly discovered
facts had to be addressed. It became imperative to plea that the relationship
between the municipality and the contractor did not exonerate the
municipality.
6. The hand of the applicant was forced by the municipality to place all the
facts before the court that, in the interest of justice, will cause a fair and legal
outcome by applying for an amendment to their Particulars of Claim.
THE ARGUMENTS AND THE AMENDMENTS
[30] It is the case for the municipality inferred and summarised from their Heads of
Argument that:
1. The proposed amendments raise a new cause of action founded upon sole
authority;
2. The proposed amendment is a fishing expedition pursuant to the Special
Plea of non-joinder. The proposed amendments are prejudicial to the
defence of the municipality since they raised a Special Plea of non-joinder
of the developer;
3. Prescription of a new cause of action is alleged;
10
4. The amendments raise allegations that are vague and embarrassing for lack
of particularity on whether section 1 of the Electricity Regulations Act exists
in law or in fact: That the proposed amendments do not allege whether
liability is founded upon negligence based on non-compliance with the Act
or negligence based on fact.
[31] These are the amendments requested:
2. The plaintiff seeks amendment to further elaborate on the following elements of delict
originally pleaded in respect of the defendant:
2.1 AD PARAGRAPH 3: “The legal context and extent of defendant’s duty and
authority as exclusive road authority/owner of the specific road.”
2.2 AD PARAGRAPH 4: “New facts disclosed by the defendant in the defendant’s
amended plea confirming that excavation across the road surface was
conducted by a third party who was granted a wayleave by the defendant.”
2.3 AD PARAGRAPH 8: “The continued existence of the defendant’s legal duty
despite the granting of a wayleave and the excavation across the road surface
being conducted by a third party instead of the defendant.”
3. The following specific amendments are sought:
3.1 AD PARAGRAPH 3: By deleting the complete paragraph 3 and replacing
same with the following:
“3. At all relevant time hereto and specifically on 27 December 2016 and to date:
3.1 the defendant:
3.1.1 in terms of The Local Government Municipal Systems Act 32 of 2000,
read with The Municipal Structures Act 117 of 1998, and The Local
Government: Municipal Demarcation Act 27 of 1998:
3.1.1.1 exercised legislative and executive authority within the
municipal boundaries of Sasolburg inclusive of Vaalpark (a
residential suburb of Sasolburg);
3.1.1.2 had the statutory duty in Vaalpark, to:
3.1.1.2.1 promote and undertake environment;
3.1.1.2.2 promote a safe and healthy environment;
3.1.1.2.3 contribute to the progressive realization of the
fundamental rights contained in section
24,25,26,27 and 29 of the Constitution;
3.1.1.5 was the sole and exclusive road authority in
Vaalpark exercising unilateral and
11
independent legislative authority and physical
control over Langeberg Street, Vaalpark;
3.1.2 in terms of Section 1 of the Electricity Regulation Act, 2006 (Act 4 of
2006) and in Vaalpark.
3.1.2.1 had the executive authority over and the right to reticulate and
distribute electricity and was licensed to do so;
3.1.2.2 owned and/or operated and/or generated and/or transmitted
and/or distributed electricity and network services;
3.1.2.3 had the function and power of bulk supply of electricity, which
included for the purpose of such supply, the transmission,
distribution and where applicable generation of electricity;
3.1.3 had a duty to the public in general and the plaintiff specifically to
provide a safe and efficient road network through the systematic
control access and safe passage of traffic in/on Langeberg Street,
Vaalpark to promote land use and recreation;
3.1.4 had the sole and exclusive authority and duty to:
3.1.4.1 grant and manage rights of wayleave in respect of any road
applications/infrastructure installations/general excavation to
be conducted on/over Langeberg Street;
3.1.4.2 ensure that;
3.1.4.2.1 no damage is done to existing road
infrastructure;
3.1.4.2.2 after any road applications/infrastructure
installations/general excavations, Langeberg
Street is subsequently rehabilitated to a
condition complaint with the defendant’s own
statutory duty.
3.2 Langeberg Street in Vaalpark was an unlit public road with an asphalt road top-
surface and single lane for vehicle traffic from east to west and west to east
respectively.”
3.2 AD PARAGRAPH 4: By deleting the complete paragraph 4 and replacing same with:
“4.
4.1 During or about October 2015, in terms of the Sasolburg Town Planning
Scheme, 1 of 1993, the defendant:
4.1.1 agreed to remove restrictions, rezone and consolidate erven 528,530
and 532 Vaalpark;
4.1.2 granted the right to the owner of the consolidated erven to
subsequently apply in writing to the defendant’s department of
12
electrical and mechanical engineering services for the provision of
increased electricity services to the consolidated erven;
4.2 During or about October 2015 to October 2016, in writing (at a time, place and
in a method unknown to and not reasonably ascertainable by the plaintiff) the
defendant:
4.2.1 consented to increased electricity services to be reticulated to the
consolidated erven;
4.2.2 granted a wayleave to the developer and/or the owner of the
consolidated erven for such reticulation through road
applications/general excavations and backfilling by means of asphalt
covering across Langeberg Street;
4.3 The reticulation through road applications/general excavations across
Langeberg Street necessitated the digging of an excavated trench
(approximately 500 millimetres in width) across the width of Langeberg Street
after removal of that portion of the asphalt road top-surface required to
excavate the trench.
4.4 Subsequent to the reticulation through road applications/general excavations,
the excavated trench was not backfilled by means of asphalt covering across
Langeberg Street but being backfilled only with gravel (hereinafter referred to
as the incomplete backfilling).
4.5 The incomplete backfilling caused a hazardous cavity right across Langeberg
Street.”
3.3 AD PARAGRAPH 8: By adding the following to the existing paragraph 8:
“8.13 To ensure that the owner/developer of the consolidated erven perform the road
applications/general excavations and backfilling by means of asphalt across
Langeberg Street forthwith and on the same standard expected of the
defendant in terms of the duty pleaded supra;
8.14 Warn the plaintiff of the presence of and dangers associated with the resultant
hazardous cavity across Langeberg Street.”
3.4 AD PARAGRAPH 9: By adding the following to existing paragraph 9:
9.6 Ensure that the road applications/general excavations and backfilling by
means of asphalt covering across Langeberg street was executed forthwith
and on the same standard expected of the defendant in terms of the duty
pleaded supra;
9.7 Warn the plaintiff of the presence of and dangers associated with the resultant
hazardous cavity across Langeberg Street.
13
THE LAW5
[32] The party seeking an amendment bears the onus of showing that it is made
bona fide and that there is an absence of prejudice.6
[33] The general approach to an amendment of a notice of motion is the same as to
a summons or pleading in an action.
[9] The principles governing the granting or refusal of an amendment have been set out in a
number of cases. There is a useful collection of these cases and the governing principles in
Commercial Union Assurance Co Ltd v Waymark NO.10 The practical rule that emerges from
these cases is that amendments will always be allowed unless the amendment is mala fide
(made in bad faith) or unless the amendment will cause an injustice to the other side which
cannot be cured by an appropriate order for costs, or 'unless the parties cannot be put back for
the purposes of justice in the same position as they were when the pleading which it is sought
to amend was filed’. These principles apply equally to a notice of motion. The question in each
case, therefore, is, what do the interests of justice demand? 7
[34] A court hearing an application for an amendment has a discretion whether or
not to grant it; a discretion which must be exercised judicially.8
[35] The primary object of allowing an amendment is to obtain a proper ventilation
of the dispute between the parties; to determine the real issues between them
so that justice may be done.9
[36] Rule 28(1) provides:
5 Erasmus: Superior Court Practice, CD-Rom & Intranet: ISSN 1561-7467 Internet: ISSN 1561-
7475, Jutastat-publications on 18 August 2021 at Volume 2 Part D. Rule 28, RS 16, 2021, D1-329
to RS 15, 2020, D1-346.
6 Krische v Road Accident Fund 2004 (4) SA 358 (W) at 363.
7 Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at 261C–D; Just Agronomics
Group (Pty) Ltd v Afropulse 466 (Pty) Ltd (unreported, GJ case no 24535/2020 dated 8 January
2021) at paragraphs [11] to [13].
8 YB v SB 2016 (1) SA 47 (WCC) at 50H–J of paragraphs [8] and [9].
9 YB v SB 2016 (1) SA 47 (WCC) at 51C–D; RGT Smart Operations (Pty) Ltd v Verlag Automobile
Wirtschaft (Pty) Ltd (unreported, ECP case no 2446/2013 dated 5 August 2016) at paragraph [11];
Ergo Mining (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2020] 3 All SA 445 (GJ) at paragraph
[8] and Nedbank Ltd v RVI Consulting CC (unreported, GJ case no 2015/24887 dated 28 October
2020) at paragraph [11].
14
Any party desiring to amend any pleading or document other than a sworn statement, filed in
connection with any proceedings, shall notify all the parties of his intention to amend, and shall
furnish particulars of the amendment.
[37] The Constitutional Court stated in Ascendis Animal Health (Pty) Ltd v Merck
Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC) at [89] that it is
evident that this rule is an enabling rule and amendments should generally be
allowed unless there is good cause for not allowing an amendment. This was
law in 1927 and declared in Moolman v Estate Moolman 1927 CPD 27 at 29
where the court held that:
(T)he practical rule adopted seems to be that amendments will always be allowed unless the
application to amend is mala fide or unless such amendment would cause an injustice to the
other side which cannot be compensated by costs, or in other words, unless the parties cannot
be put back for the purposes of justice in the same position as they were when the pleading
which it is sought to amend was filed.
[38] Pleadings must be clear and concise as to the material facts. The municipality
at a very late stage of the pleadings and only in a Special Plea on joinder
declared the real state of affairs. This conduct of the municipality is the direct
cause of the application. They cannot claim prejudice. Mr.. Dreyer cannot go
into trial without amendment of the Particulars of Claim. To cause its pleadings
to be clear and concise as decreed in Rule 18(4) it was forced to bring this
application. Rule 18(4) requires that:
… shall contain a clear and concise statement of the material facts upon which the pleader
relies for his claim.
… with sufficient particularity to enable the opposite party to reply. 10
[39] The fact that the municipality authorized a contractor to do the works that
caused the collision does not change the cause of action. To reiterate, the
cause of action is:
At 22h30 on 27 December 2016 and whilst it was raining the plaintiff/applicant (Mr.
Dreyer/applicant) an unemployed adult male born on 18 April 1970 residing at 16 Langeberg
10 Secretary for Finance v Esselman 1988 (1) SA 590 SWA at 597 G-H, Trope v South African
Reserve Bank 1992 (3) SA 208 T at 210G to J and Makgae v Sentraboer (Kooperatief) Bpk 1981
(4) SA 239 T at 244C.
15
Street, Vaalpark, Sasolburg, Free State Province drove a Ford Fiesta 1.6 with registration
number DYW 336 FS (“the vehicle”) from an eastern to a western direction in Langeberg Street,
Sasolburg, Free State Province. The driver was completely unaware of a completely disguised
hazard and could not have reasonably became aware of the hazard despite the exercise of
reasonable care. The vehicle hit the completely disguised hazard, causing the driver to lose
control of the vehicle and the vehicle collided into a tree on the southern side of Langeberg
Street.
The driver suffered the following bodily injuries in the collision:
1. Dislocation of the left hip;
2. Fracture with fragmentation of the left hemi-pelvis;
3. Severe soft tissue injuries to the left hip.
[40] The amendments go to the involvement of another party. Not the cause of
action. It does not latch to prescription at all.
FINDING
[41] Simple reading of the very clear amendments applied for; directs to a
conclusion that the cause of action has not changed but for the facts supplied
by the municipality; facts that were within their knowledge from the start of the
case in 2016.
[42] There are not any surprises or vague and embarrassing issues. The
amendments are based on the information of the municipality and are worded
in procedurally proper detail.
[43] The knowledge was within the purview of the municipality from the beginning,
it was their knowledge to declare.
[44] The municipality has the remedy to join the Third Party to contain their liability.
[45] The basis upon which causal negligence is alleged is that the municipality was
always the sole, executive and exclusive authority in respect of the road and
always had physical control ex lege over the road; this included reticulation and
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the distribution of electricity. The duty of care is obvious and was originally and
still is alleged following the legislative executive authority as the municipality to
grant the wayleave.
[46] The real factual allegations that flowed from the above are that after the works
the road was not restored to its original condition resulting in a hazardous
cavity. It is stated that the municipality was wrong and causally negligent in
failing to ensure the proper backfilling of the excavation and to warn the public
of the situation.
[47] The legal duty of the municipality stems; simplistically put, and this has been
the situation before the information of the contractor came to light; the
ownership and continued authority over the road.
[48] Liability of the municipality is factually and legally split from the acts and
omissions of the developer. A lis might exist between the municipality and the
contractor but it does not affect the legal responsibility of the municipality to the
citizens of the town; they have a legislative duty to protect them.
[49] The municipality is not absolved from liability by merely disclosing of the
contractor and the role it played.
[50] The municipality caused the delay in the case by withholding facts that does
not affect their liability. A plea of prescription is desperate. An argument of
amendment of the cause of action is unsubstantiated in law.
Bona fides
[51] The applicant was not aware of and could not have been aware of the state of
affairs that caused the application for amendments. The facts were not
reasonably ascertainable by the applicant. The facts were intimately within the
knowledge of the municipality that chose to reveal it only in 2020. The
municipality caused the application and cannot claim any prejudice.
Prejudice
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[52] The amendments are not a surprise to the municipality and does not alter the
cause of action. The defense of prescription is unfounded and desperate and
does not conform to any law. The reveal of the Third Party as late as it was
done can practically be described as an attempt to ambush the opposing party.
Ironically the municipality does not raise any indemnification against the Third
Party/contractor. The municipality does not deny their statutory accountability.
As was correctly stated by the applicant in their Heads of Argument: 11
The non-joinder emanates specifically from the defendant’s own neglect to prepare the case,
plead appropriately and timeously disclose facts of which it was aware and that was material.
The Administration of Justice
[53] It would cause a grave injustice to the mere adjudication of the case if the
amendments are refused. This court does not have any choice and will neglect
its duty to the administration of justice should it be denied.
Costs
[54] The obstinate opposition of an obvious case by the applicant forces a costs
order against the municipality.
[55] ORDER
1. The applicant is granted leave to amend its Particulars of Claim in terms of
Rule 28(1) of the Rules of Court and the Notice dated 14 April 2021.
2. The respondent shall pay the costs of the application.
_______________
M OPPERMAN, J
11 Paragraph 31 on page 22.
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APPEARANCES
On behalf of the applicant: ADVOCATE P UYS
uys@puys.co.za
082 578 7421
Mills & Groenewald
REF: A VAN
ZYL/DK/D1536
EMAIL: japiek@phinc.co.za
016 421 4631
c/o Phatshoane Henney Inc.
35 Markgraaff Street
Westdene
Bloemfontein
REF: J KRUGER/MIL37/0017
On behalf of the respondent: MR. M.J. PONOANE
Ponoane Attorneys
Suite 110, Library House
44 Westburger Street
Bloemfontein
m-945/em/mjp
051 430 77 01/083 381 3881
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