In the case of Pillay v Discovery Health Pty Limited and Another, in the High Court of South Africa in Durban, KwaZulu-Natal, Justice Mossop had to deal with applications to strike out Ms Pillay's amended particulars of claim and for the dismissal of Ms Pillay's actions, on the grounds that she failed to comply with a court order that was granted against her. The court had to consider whether Rule 28 (dealing with the proposed amendments to a pleading) remained applicable, even if the High Court (per Justice Chetty) had previously granted Ms Pillay leave to amend her particulars of claim. The court also dealt with Ms Pillay's late answering affidavit in relation to this application.
Background
Alpha Pharm (KZN) (Pty) Limited raised an exception against Ms Pillay's particulars of claim, which was upheld by Justice Chetty. Ms Pillay was ordered to supplement or amend her particulars of claim within 20 days of the date of the order. In the event that Ms Pillay did not do so, Alpha Pharm was granted leave to apply to the court to have Ms Pillay's action dismissed.
Ms Pillay elected to amend her particulars of claim and delivered her amended particulars of claim on the last day of the period prescribed by Justice Chetty's court order. Alpha Pharm was of the view that the particulars of claim that were delivered by Ms Pillay remained objectionable and thus it delivered a notice in terms Rule 28(3) of the Uniform Rules of Court in order to object to the amended particulars of claim. The Rule 28(3) notice stipulated that the amended particulars of claim failed to disclose a cause of action and were vague and embarrassing. Ms Pillay failed to respond to the Rule 28(3) notice which thus led to Alpha Pharm instituting the application to strike out the amended particulars of claim and for the dismissal of Ms Pillay's claim.
The court had to determine whether Alpha Pharm had adopted the correct procedure in objecting to the amended particulars of claim. Ms Pillay argued that Alpha Pharm ought to have filed an exception in terms of Rule 23 (which is generally used to object to particulars of claim that fail to disclose a cause of action and those that are vague and embarrassing). She argued that had an exception been filed, she would have been in a position to argue it and defend the amended particulars of claim. The High Court was not convinced by this reasoning since Alpha Pharm's notice in terms of Rule 28 (3) included the grounds on which the objection was raised.
Alpha Pharm argued that it had a choice of using either a notice of objection in terms of Rule 28 (3) or a notice in terms of Rule 23. Alpha Pharm highlighted that there was no prejudice to Ms Pillay, since she was fully appraised of its objections.
Rule 28
The three key sub-rules that were pivotal in this case were:
- Rule 28(1), which stipulates that a party that desires to amend its pleading "shall notify all other parties of his/her intention to amend and shall furnish particulars of the amendment";
- Rule 28(3), which provides that if the other party delivers a written objection to the proposed amendment, the objection "shall clearly and concisely state the grounds upon which the objection is founded"; and
- Rule 28(4) provides that where a Rule 28(3) objection is delivered, the party wishing to amend its particulars of claim may, within 10 days, lodge an application for leave to amend.
Discussion
The High Court concurred that it is likely that the same results may have been achieved by invoking Rule 23. However, the High Court held that that did not mean that Rule 28 could not be invoked. This, according to the court, is because irrespective of the procedure adopted, the fact of the matter is that the position of both parties, and the reasons for those positions, have been revealed and debated. In this case, Alpha Pharm satisfied this by clearly and concisely stating the grounds for its objections to the proposed amendment.
In determining the effect of Rule 28 in this case, the court considered the decision in Cross v Ferreira, where the court concluded that where leave to amend has been granted by the court, the amending party must still give notice of the intended amendment, since the proposed amendment may in some way be legally objectionable. The Durban High Court in the current application concurred with this view. It stated that:
"It is generally undesirable that leave to amend is granted without the nature and content of the proposed amendment being disclosed. If the proposed amendment is not disclosed to and known by the court, there may then conceivably be the difficulties that have arisen in this matter. It seems much more sensible to require the amending party to give notice of the proposed amendment, notwithstanding the general leave to amend being granted to it by the court, and to thereafter allow the provisions of Uniform Rule 28 to apply. The party receiving the proposed amendment would then retain the right to object to it enshrined in Uniform Rule 28(3). It very often happens that orders such as that granted in this matter are granted without further consideration as to how the amendment is to be effected. It would, perhaps, be of assistance in future, and would avoid any confusion such as has arisen in this matter, if these types of order were to specify that by virtue of the fact that the details of the proposed amendment not being known to the court, in exercising the right to amend, the provisions of Uniform Rule 28 shall continue to apply to the process of amendment."
Therefore, the High Court asserted that, since Ms Pillay was aware of the grounds of the objection, she was obliged in terms of Rule 28(4) to bring an application for leave to amend her particulars of claim within ten days of receiving Alpha Pharm's Rule 28(3) notice, which she did not do. The High Court thus concluded that in light of Alpha Pharm's objection, the particulars of claim have never been amended. Therefore, on the date of the hearing of this application, the particulars of claim would have been unamended for three years.
Condonation
Before dealing with Ms Pillay's contentions, the question of whether to grant condonation arose since Ms Pillay delivered her answering affidavit five months after this application was delivered by Alpha Pharm, in other words, long after it was due.
The court considered the following factors in determining whether it is in the interest of justice to grant condonation:
- the length of the delay;
- the explanation for, or cause for, the delay;
- prospects of success for the party seeking condonation;
- the importance of the issue(s) that the matter raises;
- the prejudice to the other party; and
- the effect of the delay on the administration of justice.
Importantly on this issue, Ms Pillay relied on her counsel's unavailability and her lack of funds as reasons for delivering the answering affidavit late. In this regard, the High Court emphasised that the Supreme Court of Appeal in Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty) Ltd has clarified that the unavailability of a specific counsel is not a valid reason to delay court proceedings. On the issue of a lack of funds, the court relied on the judgment of Du Plessis v Wits Health Consortium (Pty) Ltd, which held that a mere claim of a lack of funds does not constitute a reasonable explanation for the delay. The party will also have to explain to the court when and how they were finally able to raise those funds. "The 'when' aspects of the explanation are important, as it provides the court with information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay." In this case, Ms Pillay failed to provide this information.
In considering the other factors, the court noted that Ms Pillay did not mention anything about her prospects of success. Ms Pillay's cause of action is also not legally important since there are no great legal principles at play with Ms Pillay's claim which is based on damages for past and future loss of earnings. Furthermore, the court stated that the delay in this matter is intolerable for the administration of justice as the action commenced five years ago and the defendant is yet to plead. Part of that delay has been occasioned by the late delivery of the answering affidavit.
In addition to the abovementioned factors, the High Court also considered the following principles that have been consistently followed by the courts:
"(i) where the delay is unacceptably excessive and there is no explanation for the delay or the explanation for the delay is unsatisfactory, there may be no need to consider the prospects of success, as this in itself justified a refusal to grant condonation; (ii) if the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted; and (iii) despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice"
The court concluded that the delay in this matter was unacceptably excessive, there was an unsatisfactory explanation for the delay and there were no real prospects of success of Ms Pillay's claim. The court found that the condonation application was also badly motivated, vague in its detail and sparse with its facts. Therefore, the High Court refused to grant the condonation
Dismissal of Ms Pillay's claim
Instead of explaining why Alpha Pharm was not entitled to the relief that it sought, Ms Pillay rather argued that her amended particulars of claim disclosed a viable cause of action. This argument was not accepted by the High Court. According to the High Court the critical issue was whether Alpha Pharm should succeed in having Ms Pillay's claim dismissed due to her non-compliance with the order of Justice Chetty. The High Court was of the view that Alpha Pharm's application should succeed and thus granted an order in favour of Alpha Pharm by dismissing Ms Pillay's claim.
Conclusion
It is therefore clear that a party must deliver a notice of intention to amend his/her particulars of claim even where the court granted leave to amend a particulars of claim. This case also highlights the perils of not complying with a court order.
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