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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO 05/15044

Reportable

In the matter between

ELLEN TABITHA RADEMEYER PLAINTIFF

and

MINISTER OF CORRECTIONAL SERVICES DEFENDANT ______________________________________________________________

J U D G M E N T

______________________________________________________________

VAN OOSTEN J

[1] This is an application brought by the defendant prior to the commencement of the hearing of the action between the parties, in which he seeks to resile from a concession made on his behalf at two pre-trial conferences. The plaintiff instituted the action in her personal capacity and as representative of her minor daughter, claiming damages from the Minister of Correctional Services as the first defendant and the Minister of Safety and Security as the second defendant. Both defendants defended the action and a joint plea was filed. The matter was enrolled for hearing on 31 August 2006. Prior to the hearing a pre-trial conference was held at which the plaintiff as well as both defendants were duly represented. At the pre-trial conference, the first defendant conceded the merits of the plaintiff’s claim, which is recorded in the signed pre-trial minute as follows:

“The first defendant conceded the merits/liability together with costs of the action associated therewith, admitting the first defendant was liable to compensate plaintiff in her personal and representative capacity as mother and natural guardian of her minor daughter…, in respect of damages sustained in consequence of the incidents referred to in the particulars of claim and as agreed upon or determined by the Honourable Court”.

In view of the first defendant’s concession, it was further agreed at the pre-trial conference that the plaintiff would withdraw the action against the second defendant, each party to pay its own costs; that the plaintiff would, after signature of the pre-trial minute, deliver a notice of withdrawal against the second defendant and finally, that the quantification of damages as against the first defendant would be postponed for determination at a later date. The plaintiff’s notice of withdrawal of the action against the second defendant was delivered shortly after signature of the pre-trial minute. As agreed between the parties the action was postponed on the day of the hearing, in terms of the following order:

1. In terms of Rule 33 (4) the question of merits/liability is separated form the question of the quantification of damages suffered by Plaintiff in her personal and representative capacities.

2. It is recorded that the parties have resolved the question of merits/liability and that the only remaining issue is the quantification of damages suffered by the Plaintiff in her personal and representative capacities.

3. The determination of the quantum of damages aforementioned is postponed sine die for determination at a later date.

4. The defendant is to be liable for the payment of Plaintiff’s costs to date hereof and being in relation to the merits/liability.

[2] The matter was again enrolled for hearing on 20 March 2008. A second pre-trial conference was held on 7 February 2008. The first defendant was again represented by the State Attorney. The concession made at the first pre-trial conference was confirmed as follows:

“1. The parties record that a pre-trial conference was held on the 3^rd of August 2006, the pre-trial minutes relating thereto having been filed of record in the Honourable Court. The parties further record that at that time the matter was on the Honourable Court’s roll for hearing on the 31^st of August 2006 and at the said pre-trial conference the parties agreed to separate the issue of merits/liability from the question of the quantum of damages and it was then agreed that the first defendant was liable to the plaintiff for one hundred percent of her proven or agreed damages.

2. The only issue remaining for determination by the Honourable Court is the question of the quantum of damages.

…

6. As recorded above merits/liability were separated form the question of the quantification of damages, the former having been settled in August 2006.”

[3] The day before the hearing of the action the first defendant (the defendant) filed an application to be heard at the hearing of the action for firstly, the setting aside of the concession made at the two pre-trial conferences, secondly, that the defendant be permitted to contest the merits of the action and thirdly, that the defendant be ordered to pay the costs “occasioned by this order”. Two affidavits have been filed: a founding affidavit deposed to by a director in the Department of Correctional Services, and a confirmatory affidavit of the attorney who had represented the defendants at both pre-trial conferences, as an annexure thereto. The plaintiff opposed the application, although no further affidavits were filed.

[4] Before I deal any further with the application it is necessary to briefly consider the principles applicable to the withdrawal of an admission made at a pre-trial conference. A pre-trial conference is a procedural step provided for in Rule 37 aimed at, as envisaged in the Rule, promoting the effective disposal of the litigation (Rule 37(9)(a)(ii)). It is moreover intended to expedite the trial and to limit the issues before court (See Hendricks v President Insurance Co Ltd 1993 (3) SA 158 at 166E-F). In Price NO v Allied-JBS Building Society 1980 (3) SA 874 (A) at 882D it was stated thus:

“The pre-trial conference conducted under the terms of Rule of Court 37 is designed to afford an opportunity to the parties amongst other matters, to endeavour to find ways of curtailing the duration of the trial by redefining the issues to be tried. One of the methods of doing so is by way of admissions of fact which could lead to the elimination of one or more of the issues raised in the pleadings.”

The salutary principle of long standing that a party should be held to an agreement reached, has been confirmed in numerous cases. The reasoning underlying the principle applies equally, if not more so, where an agreement is reached on specific issues dealt with at a pre-trial conference. A party will not, in the absence of special circumstances, be allowed to resile from an agreement deliberately reached at a pre-trial conference. To allow a party to do so, Harms JA held in Filta-Matix (Pty) Ltd v Freudenberg and Others [1997] ZASCA 110; 1998 (1) SA 606 (A) at p 614 C, “would be to negate the object of Rule 37, which is to limit issues and to curtail the scope of litigation”. What will constitute special circumstances is not capable of any hard and fast definition. Each case must of course be decided on its own facts. A concession of a major issue by a party in the election to limit the ambit of the case, is usually binding (See Hendricks v President Insurance Co Ltd supra at 166E-H; Chemfos Ltd v Plaasfosfaat (Pty) Ltd 1985 (3) SA 106 (A) at 114I-115B). A concession by a defendant of the merits of the plaintiff’s claim is tantamount to an admission of liability and the agreement thus reached, “[s]oos met enige skikking ondervang dit die onderliggende dispute, ook dié wat op die geldigheid van ‘n skuldoorsaak betrekking het” (per Harms JA in F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van SA Bpk [1998] ZASCA 65; 1999 (1) SA 515 (A) at 524F).

[5] To revert to the application, it is the defendant’s case that the concession was erroneously made. The error it is said, consisted of the defendant’s attorney having conceded the merits of the plaintiff’s action in the bona fide but mistaken “belief” that the plaintiff had complied with the statutory provisions relating to prior notice to the defendant.¹ The attorney it is stated accordingly did not realise that the plaintiff’s claim had at the date the summons was issued, “long prescribed”. The mistake was “discovered” only during preparation for trial, and the defendant’s attorney the next day informed the plaintiff’s attorney of the “mutual error”² that had been committed.

[6] Applying the above criteria to the application now before me, the defendant in order to succeed, must show that special circumstances exist for this court to exercise its discretion in his favour. Three requirements must be met: firstly, the defendant must furnish an explanation sufficiently full of the circumstances under which the concession was made and why it is sought to be withdrawn, secondly, he should satisfy the court as to his bona fides, and thirdly, show that in all the circumstances justice and fairness would justify the restoration of the status quo ante. In my view the defendant has not come anywhere near to satisfying any of these requirements. The defendant has failed to explain the circumstances under which the concession was made. No basis for the attorney’s alleged erroneous belief has been tendered. Nor has the defendant dealt with the instructions the attorney was furnished with regarding this aspect. But it does not end there: the allegation of a bona fide mistake stands on its own and nothing further is stated allowing for an assessment thereof. On the contrary, there are a number of factors compromising the bona fides of the defendant: the deponent to the founding affidavit on behalf of the defendant does not state or give any indication of any of the facts contained therein being within his personal knowledge. He further says a copy of the plaintiff’s statutory notice to the Minister of Safety and Security concerning the plaintiff’s proposed action “after a diligent search” was found in the defendant’s possession. Nothing more on this aspect is said which on the paucity of the information furnished, leaves unanswered questions arising such as when and how the document came into their possession and what the defendant’s attitude was concerning its contents. As counsel for the plaintiff quite correctly submitted the inference is inescapable that there must have been some agreement between the defendants in relation to which of them would assume liability for the plaintiff’s claim. Again, nothing is said on this aspect. Nor does the deponent deal with the aspect as to whether or not the defendant waived reliance on prescription. Such waiver must accordingly be inferred, the concession undoubtedly constituting an outward manifestation of an intention to waive (cf Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) at par [15] – [19]). That prescription may at that point in time already have been completed³ is of no moment (cf De Jager en Andere v ABSA Bank Bpk 2001 (3) SA 537(SCA) at par [18]). Finally, the bona fides of the attorney being under scrutiny one would have expected him to set out the facts from which an assessment as to his bona fides could be made. As I have mentioned he merely confirmed the bare allegation of bona fides made in the founding affidavit.

[7] In conclusion there are in my view no considerations of justice and fairness justifying the withdrawal of the defendant’s concession. The plaintiff will inevitably suffer damages should the defendant be allowed to withdraw the concession. The plaintiff, as I have mentioned, has withdrawn the action against the second defendant. It is now almost nineteen months later, and the matter is on the roll again for the determination of the plaintiff’s quantum of damages. In preparation for trial the plaintiff consulted medical experts and their medico-legal reports have been filed. Such prejudice as the plaintiff will suffer cannot be compensated for by way of an award of costs, on the contrary the prejudice she will suffer quite clearly is irreparable. In these circumstances justice and fairness dictate that the defendant’s concession should stand and that the trial on the quantification of the plaintiff’s damages be allowed to proceed.

[8] It remains for me to consider whether the defendant has succeeded in overcoming the second hurdle which is that a viable defence must be shown to exist. As I have indicated the defendant seeks “permission to contest the merits of this action”. But there is a glaring absence of any defence to the merits of the plaintiff’s claim in the founding affidavit. At best the defendant seeks to make out a case based on the plaintiff’s alleged failure to give the required statutory notice which would entitle him to raise the defence of prescription. The defendant bears the onus of satisfying me that it has a viable defence. In support of the defence, it is alleged that “no notice or letter of demand was served on the defendant herein”. In the particulars of claim the plaintiff pleads that she “in both her personal and representative capacities has given the requisite notification to both the first and second defendants”. This in my view must be read in conjunction with the allegation in the founding affidavit I have already alluded to, that notwithstanding the diligent search only a copy of the statutory notice to the second defendant could be found. One looks in vain for a positive averment from the defendant that such a notice has not been received. It follows that the application on this score is similarly doomed to failure.

[9] For these reasons I conclude that application must fail. This brings me to the costs of the application as well as the costs occasioned by the consequent postponement of the trial. Counsel for the plaintiff contended for a punitive costs order. I am satisfied that such an order will be appropriate in the circumstances of this case. I can see no reason why the plaintiff should be out of pocket in regard to an application that was right from the outset ill-conceived.

[10] In the result I make the following order:

1. The defendant’s application for the withdrawal of the concession made at the pre-trial conferences is dismissed.

2. The defendant is ordered to pay the costs of the said application on the scale as between attorney and client.

3. The trial is postponed sine die.

4. The defendant is ordered to pay the costs occasioned by the postponement of the trial on the scale as between attorney and client.

_________________________

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR THE PLAINTIFF ADV M BASSLIAN

PLAINTIFF’S ATTORNEYS SADERS ATTORNEYS

COUNSEL FOR THE DEFENDANT ADV I HUSSAIN SC

DEFENDANT’S ATTORNEYS STATE ATTORNEY

DATE OF HEARING 20 & 25 MARCH 2008

DATE OF JUDGMENT 30 APRIL 2008

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