In Pulane Qhamakoane ("PQ") v Road Accident Fund ("RAF"), the Gauteng Division of the High Court of South Africa, Pretoria, had to consider whether a party that is barred from pleading after failing to timeously plead, is permitted to plead after an amendment to the particulars of claim is delivered.
PQ was a passenger in a motor vehicle accident that occurred on 1 May 2018 for which she sought compensation from the RAF for injuries sustained in the accident. An action was instituted on behalf of PQ in which she initially claimed ZAR500 000,00 in damages for past and future medical expenses, loss of income, and general damages. A notice of intention to defend was filed on behalf of the RAF on 1 July 2022, but no plea was delivered. A notice of bar was then served on behalf of PQ and the RAF had until 5 October 2022 to deliver a plea. The RAF failed to deliver the plea and was therefore barred from delivering a plea.
Steps were then taken to set the matter down on the default judgment roll. PQ then sought to amend her claim by increasing her damages for loss of income to R7 767 745. A notice of intention to amend was delivered 5 days before the default judgment application was heard. On the same day as serving the notice of intention to amend, PQ delivered the amended pages.
During the hearing of the default judgment application, the court requested PQ's counsel to address the court in regard to the validity and effectiveness of the amendment. In response, PQ's counsel requested that the amendment be granted in terms of rule 28(10), which permits a court to grant leave to amend any pleading or document.
The court was not persuaded by the arguments advanced on behalf of PQ and held that:
- An amendment to the pleadings, after a party has been barred, "invites" a party back into the litigation by reopening the pleadings. This is because the defendant has only been barred to the pre-amendment pleadings.
- When a party is ipso factor barred (following their failure to respond to a notice of bar), the party is barred to deliver a plea to the particulars of claim. This does not mean that a party is barred from further participation in the litigation.
The court granted PQ's application to amend her claim. In doing so, the default judgment application was postponed and the RAF was allowed 15 days from date of service of the court order to deliver its plea.
The judgment highlights that a party barred from filing a plea can still respond to significant amendments in pleadings, provided that the issues in dispute are materially impacted by the amendment. It is therefore important for litigants to carefully consider the strategy in pursuing their claim as late amendments will result in the pleadings being reopened.
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