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NOT REPORTABLE

IN THE SOUTH GAUTENG HIGH CURT, JOHANNESBURG

( REPUBLIC OF SOUTH AFRICA )

CASE NO: 2008 / 3831

DATE:18/07/2013

In the matter between :

CARRIM, MEHROONEHAAR..................................................................................Applicant

and

LOUW & HEYL ATTORNEYS.................................................................................Respondent

JUDGMENT

MBONGWE, AJ :

[1] Before me are two interlocutory applications. The applicant seeks an order to amend its particulars of claim in the main action and the respondent seeks condonation of the late

service and filling of its answering affidavit in opposition to the amendment. Each party is opposing the application of the other.The parties advised that the matter is incapable of

settlement out of court.

[2] The background facts in this case are that the applicant sustained bodily injuries in a motor vehicle collision which occurred on the 7th December 2002. Three days later, the applicant approached the respondent, a firm of attorneys, with the view to instructing them to pursue a claim for compensation against the road accident fund (RAF). It is not clear when exactly, but

the applicant was advised that her claim would be subject to an apportionment in the order of no less than 60% and that the claim was not commercially viable to pursue. This advice was

accepted by the applicant. It is necessary to state that an agreement seem to have been entered between the parties with regard to the pursuance of the claim on behalf the applicant

and the fee arrangement and obligations of the respondent are set out in such agreement. This , however, appears to be at odds with the advice had been given and accepted, unless

instructions were originally accepted an agreement concluded and the advice came only at a later stage. Even if this were the scenario, no specific date of the advice is given. I will not dealwith the relevance of this date and implications it could have on the matter as that falls outside the scope of the application before me.

[3] Be that as it may, the applicant instituted action against the respondent on the 8th March 2008 based on an allegation that she suffered damages which she could have been compensated fo by the RAF, but for the incorrect advice she received from the respondent. Her claim, if any, against the RAF had prescribed by the time she instituted action against the respondent. The respondent is defending the said action.

[4] The hearing of that case was to taken place on the 19th April 2013, but the matter was removed ostensibly by agreement to enable the applicant to amend its particulars of claim. The applicant served a notice of amendment of its particulars of claim, the subject matter of this application. as indicated in the opening paragraph, the parties could not agree on the amendment and the applicant brought this application for leave to amend which is being opposed by the respondent. The respondent, having filed a notice to oppose the application, filed its answering affidavit out period prescribed by the Rules of this court. The respondent seeks condonation of the late filing of the answering affidavit. The applicant is opposing that application.

[5] I deal first with the respondent’s application for condonation. In short , the respondent grounds its failure to the inaccessibility of the counsel it had briefed to prepare the answering

affidavit. The same counsel appeared on behalf of the respondent and confirmed from the bar the challenges he was going through, moving office, at the time he was sought by the

respondent for the purpose of ensuring timeous filing of the answering affidavit. The respondent has attached various emails, inter alia, to demonstrate its attempts at reaching

counsel. All, but one such attempt, was successful. I called for reaction to this explanation and acceptance of responsibility by the respondent’s counsel. Counsel for the applicant, after

arguing and pointing out alternative modes the respondent could have embarked on to reach its counsel, elected to leave the aspect of the explanation given and acceptance of

responsibility by the respondent’s counsel, in the hands of this court. Counsel for the respondent is a senior member of the bar and officer of this court. I have no reason to doubt

the explanation given and I must commend counsel for the applicant for the stance she took in relation thereto. Further, this court is satisfied that no wilfulness could be ascribed to the

respondent for the late filing of the answering affidavit. The application for the condonation of the late filing of the respondent’s answering affidavit would have been granted.

[6] Turning to the applicant’s application to amend its particulars of claim, it is important to point that the amendment sought is in two parts. The reason advanced for the amendment is mainly

that it will be impossible for the applicant to lead evidence at the hearing of the action against the respondent without the sought amendment being effected and that it seeks to; ‘ set out the

particularity relating the motor collision in question, COUPLED with the ostensible failure of the respondent to comply with Sections 2, 17 and 24 of the Road Accident Fund Act.’’ ( paragraph 5 of the Applicant’s short Heads of Argument). The two parts of this application that I referred to above are apparent from this statement. I hereunder consider the two parts in sequence.

[7] The first part of the amendment sought deals essentially with the necessary averments that would have been made had summons been issued against the RAF. That is, it sets out the

details of the occurrence of the collision the applicant was involved in, the injuries, treatment,past and future medical expenses, sequelae and estimates of the quantum of the applicant’s

general and special damages. The respondent has no objection to this part of the amendment and merely notes the applicant’s allegations in its answering affidavit. This court does not find

anything wrong or untoward with this part of the amendment and agrees that these averments sought to be introduced are necessary to lead evidence. Consequently, the application for amendment, by introducing the averments referred to above, would have been granted.

[8] Although in this paragraph I consider the second part of the amendment sought, I deem it necessary to repeat the quotation in paragraph 8 of the Applicant’s Short Heads of

Arguments which reads : supra, ‘’ The applicant notified the respondent of its desire to introduce an amendment to set out averments setting out the particularity relating to the motor collision in question, coupled with the ostensible failure of the respondent to comply with Sections 2, 17 and 24 of the Road Accident Fund Act.’’ The latter part of this statement

unambiguously means the introduction of the respondent’s negligence(failure) which, in the context of this case, means the introduction of an additional claim founded on negligence.

t is important to note that the applicant’s main claim as it stands is grounded on allegedly .Incorrect advice that was given to the applicant by the respondent in December 2002 and the

action against the respondent was instituted in March 2008. As the applicant was already a major in 2002, having been born in March 1981, her claim against the respondent would

have become prescribed in 2005. That is, age of majority, then 21 years, plus three years. There is not a bit of doubt that by allowing this second part of the amendment sought, this

Court would have been granting the applicant an opportunity to introduce a second or alternative cause of action against the respondent in the main action between the parties,

which claim had itself long become prescribed by the time summons was issued against the respondent. Consequently, there is no need for this court to consider the matter any further.

[9] The following order is, therefore, given:

1. The application is dismissed.

2. The applicant is ordered to pay the costs

MBONGWE, AJ_______________________

ACTING JUDGE OF THE SOUTH GAUTENG HIGH COURT.

Date of hearing : 10 June 2013

Date of judgment : 18 July 2013

APPEARANCES

1 For the applicant : Adv C.C. Ascar

Instructed by : Levin Van Zyl Incorporated, Johannesbur

2. For the respondent : Adv A. R. Van der Merwe

Instructed by : Louw & Heyl Attorneys, c/o Vos Attorneys, Johannesburg

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