IN  THE  SOUTH  GAUTENG  HIGH CURT, JOHANNESBURG
 ( REPUBLIC  OF  SOUTH  AFRICA  )
  						CASE NO:  2008 / 3831

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 deal
         with 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 for
         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
        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.
          It 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