Dube v Dube and Ors (HC 2039 of 2001) [2004] ZWBHC 106 (1 September 2004)

Judgment No. HB 106/2004 Case No. HC 2039/01 FANNY ABEDNIGO DUBE Versus THABANI DUBE And ELTON CADDER And NATIONAL INSURANCE COMPANY OF ZIMBABWE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 23 MARCH & 2 SEPTEMBER 2004 S Siziba for the plaintiff J Tshuma for the defendants NDOU J: The first defendant worked for the second defendant as a driver. The third defendant was the insurer of the second defendant’s minibus, a Mazda registration number 662-206N under claim number MP 325, 700. The second defendant was involved, at the relevant time, in the business of transporting people to and from Bulawayo and Beitbridge for a fee. On 14 July 2000 the second defendant’s above mentioned vehicle being driven by the first defendant in the course and scope of duty was involved in an accident on the Bulawayo-Beitbridge highway at the 80 kilometre peg. The plaintiff was a fee paying passenger in the said vehicle. He sustained certain injuries in the accident. He attributed the accident to the negligence on the part of the first defendant. As a result he issued summons against the defendants on 11 July 2001 claiming total damages in the sum of $1 053 492,90. During the pre-trial conference on 22 January 2003, plaintiff sought an amendment. The defendants did not object and the amendment was duly granted. The amendment HB 106/04 related to the particulars of negligence. When the trial commenced before me on 23 March 2004, the plaintiff sought yet another amendment which effectively substituted the original claim of $1 053 492,90 with one of $34 072 513,00. The basis on which the amendment is sought is purely inflation. This time around the application for amendment is opposed. The plaintiff’s application is premised on Order 20 Rule 132 as read with rule 134 of the rules of this court. I granted the application and gave brief reasons for doing so. I also granted the defendants leave to appeal against my interlocutory order as it is common cause that, in these days of high inflation, such issues are frequent. I agreed with Mr Tshuma for the defendants that there is a need for certainity in this regard. My full reasons for granting application now follow. Firstly, a number of cases have come up with the principle that damages are to be assessed or calculated as at the date of breach – Munhuwa v Mukahuru Bus Services 1994(2) ZLR 382(H) at 388E; Elgin Brown and Hamaer (Pty) Ltd v Dampskibsselekabet Ton Ltd 1988(4) SA 671 (N) 647G and Voest Alpine Intertracting Gosselleschaft MBH v Burwill & Co (SA) (Pty) Ltd 1986(4) SA 671(C) at672. This statement seems obscure. What seems to be intended in these cases is that damages are assessed or calculated by means of a formula in which the date of breach or termination of the contract depending on the circumstances is important. The date of breach is important but the extent of loss, the amount to be awarded, the amount assessed or calculated, can only be determined at a later date - The Principle of the Law of Contract (4th Ed) A J Kerr at 641. The same rule applies to the assessment of damages arising from delict. In casu, the damages arose ex delicto, as such, the damages are assessed or calculated by means of a formula in which the date HB 106/04 of the injury or damage is important, but the extent of loss, amount to be awarded, the amount assessed or calculated, can only be determined at a later stage. On this ground alone, if my understanding is correct, the application for the amendment has to be granted. Secondly, it is trite that the granting or refusal of an application for the amendment of a pleading is a matter for the discretion of the court, to be exercised judicially in light of all the facts and circumstances before it. The court has such a discretion to allow a litigant to amend his or her pleadings at any time prior to judgment – Levenstein v Levestein 1955(3) SA 615 (SR); Reuben v Meyers 1957 (4) SA 57 (SR); Angelique Enterprises (Ptv) Ltd v Albco (Pvt) Ltd 1990(1) ZLR 6 (H); G M F Kontrakteurs (Edms) Bpk & Anor v Pretoria City Council 1978 (2) SA 219 (T) at 222B-D; Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547 (A) at 565F-G; Commercial Union Assurance Co Ltd v Wamark No 1995(2) SA 73 (Tk) at 77F-G. Order 20 rules 132-136. The primary object of allowing an amendment is to obtain a proper ventilation of the dispute between the parties. The vital consideration in the decision whether to grant an amendment is whether the amendment will cause the other party such prejudice as cannot be cured by an order for costs and, where appropriate, a postponement – Angelique Enterrprises (Pty) Ltd v Abco (Pvt) Ltd, supra, Trans Drakensberg Bank Ltd (under judicial management) v Combined Engineering (Pty) Ltd & Anor 1967 (3) SA 632 (D); Caxton Ltd & Ors v Reeva Farman (Pty) Ltd & Anor, supra at 565F-I; J R Janigh (Pty) Ltd v W M Spilhaus & Co (WR) (Pty) Ltd 1992 (1) SA 167 (C) at 169H-I and The Civil Practice of the Supreme Court of South Africa by Herbstein & Van Winsen 4ed at pages 514-516. HB 106/04 As the plaintiff was craving this court’s indulgence he offered the explanation that the amendment was occasioned by “hyper” inflation in the country. From his application and the opposition thereto, it seems to me that a case has been made out for the amendment. Bearing in mind that the rules allow an amendment that results in the introduction of a new cause of action (rule 134 and Hone v Hine 1947(4) SA 757 (SR)). I see no reason why such liberal attitude towards amendments should not be extended to accommodate increases in the amounts claimed occasioned by the so- called hyper-inflation. Leave to amend should be granted subject to the qualification that there is no prejudice to the other party. Such leave, however, has to be properly sought with adequate justification just like any other application for the court’s indulgence. The delay in bringing the application has to be accounted for – Krogman v Van Reenen 1926 (OPD) at 194-5. In order to do justice between the parties I granted leave to amend the pleadings. I did not necessarily look at the technicalities, but I looked at what the real position is between the parties. The whole object of bringing the claim will be defeated if the plaintiff is refused an amendment in these inflationary times. There is no material prejudice that the defendants will suffer as they will be able to challenge the new amount during the trial either by cross-examination or introduction of evidence in this regard. It is for these reasons that I granted leave to amend. Cheda & Partners plaintiff’s legal practitioners Webb, Low & Barry, defendant’s legal practitioners