NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA 
NORTH GAUTENG DIVISION, PRETORIA

CASE NUMBER: 16492/06 
DATE:     5 October 2010

v

Judgment: MabuseJ
JUDGMENT

1. This is an interlocutory application. The Plaintiff approached this court with an application to amend initially paragraphs 4.6b, 5, 6 and prayer B of his particulars of claim. The court granted the application and promised to furnish reasons for its order later. These are the reasons.

2. The Plaintiff is an adult businessman who resides at Mogwase in the North-west Province. He instituted this action against the defendants in his personal capacity. The First Defendant is a company duly registered in terms of the company statutes of this country and has its place of business located at 7 Fricker Road, Ilovo. The First Defendant was at all material times registered in terms of insurance statutes of the Republic of South Africa to conduct business as an insurer. The Second Defendant is a company duly registered in terms of the company laws of the Republic of South Africa with its place of business located at 22 Jan Smuts Avenue, Forest town, Johannesburg. The First Defendant was at all material times acting for the Second Defendant.

3. On 28 March 2003 the Plaintiff purchased a Toyota Prado motor vehicle from a motor dealer known as Rustenburg Toyota at Rustenburg in the North-West Province. The Plaintiff, who was at all times assisted by one Mrs. Minie Botha, required the said motor vehicle to be insured. On 27 March 2007 the Second Defendant submitted to the Plaintiff a three page quotation for comprehensive insurance in respect of the said motor vehicle.

4. On the same date the Plaintiff accepted the Second Defendant's aforementioned quotation by signing it at the foot of each and every page. Furthermore he authorised the Second Defendant to deduct the regular premiums from his current bank account and sent his acceptance of the quotation and authorization to be faxed to the Second Defendant by the aforementioned Minie Botha.

5. During April 2003 the Second Defendant confirmed that the Plaintiffs aforementioned motor vehicle had been comprehensively insured by the First Defendant to the value of R465 800,00. The said confirmation which was written reads as follows:
aRE: CONFIRMATION OF INSURANCE COVER - MR. RADEBE

7. On 4 July 2005, acting in terms of the insurance agreement, the Plaintiff duly notified the Second Defendant in its capacity as representative of the First Defendant of the said motor vehicle accident and the Plaintiff had at that stage complied in all respects with all its obligations under the policy. Subsequently the Plaintiffs said motor vehicle was towed, on the instructions of the Second Defendant, to Proline Panel beaters at 301 Fourth Street, Wynberg, Johannesburg. Proline, acting on the instructions of the Second Defendant, assessed the damage occasioned to the Plaintiffs motor vehicle in the region of R209 081.72 inclusive of VAT. Despite the existence of the said insurance policy or agreement the First Defendant has refused to make any payments to the Plaintiff in respect of the damage to the Plaintiffs motor vehicle.

8. The Plaintiff contends that, in the circumstances, the First Defendant is liable for payment to the Plaintiff of the amount of R209 081.72 plus interest thereon at 15.5%. The First Defendant refuses to pay the said amount on the basis that the premiums in respect of the said policy were not paid. In the light of the Second Defendant's denial, the Plaintiff contends that it was an express, alternatively a tacit, and further alternatively an implied term of the agreement, that the Second Defendant would obtain comprehensive insurance for the Plaintiff in respect of his motor vehicle as provided by Standard Motor Vehicle Insurance Policy issued by the First Defendant and secondly, that the Second Defendant would submit to Plaintiffs bank the necessary documents for the deduction from the Plaintiff's bank account of the required payment. The failure to make proper arrangements for the deduction of the premiums from the Plaintiffs bank account can therefore be exclusively attributed to the Second Defendant.

9. The Plaintiff regarded the Second Defendant's failure to make proper arrangements for the deduction of the premiums from his bank account as breach of the terms of the agreement and the primary cause of the damages that he has suffered as a result of the motor vehicle collision. At all material times the Second Defendant was acting as an agent for the First Defendant. The Plaintiff contends that in the premises the First and Second Defendants are jointly and severally liable to him for payment of the damages referred to herein above.

10. As at the time of the launching of this action the said motor vehicle was still in the possession of Proline who refused to release it pending payment of the expenses it incurred in respect of the towing and evaluation of the said motor vehicle. The Plaintiff was subsequently advised by his legal representative that the summons which had been issued and which set out the cause of action against the Defendants had to be amended. Accordingly on 21 July 2008 the Plaintiffs attorney's caused a notice of amendment of his particulars of claim to be served on the Respondent. The Plaintiffs notice of amendment which is attached to the papers confirms the paragraphs that I have referred to herein above as the paragraphs the Plaintiff had contemplated amending.   On 3 August 2009 the Defendants filed an objection against the Plaintiffs contemplated amendment.

11. The Second Defendant's grounds of objection to the Plaintiffs contemplated amendment are fully set out in the said objection. Notwithstanding the grounds of objection against the contemplated amendment, the Plaintiff contends that the proposed amendment is substantially the same as the original cause of action. It is his view that the Defendants cannot be prejudiced by the aforesaid amendment and that in any event his claim has not become prescribed. This matter is a very important matter to him in the light of the fact that his motor vehicle has been damaged and he has a result of the damage suffered extensive damages.

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he has done some injury to his opponent which could not be compensated for by cost or otherwise."
And again:

14. I now wish to turn to the grounds on which the Second Respondent objected to the Plaintiffs contemplated amendment. The Second Defendant's objection in respect of paragraphs 2 and 4 of the Plaintiffs notice of amendment is based on prescription. The Second Respondent contends that the claim which the Plaintiff intends prosecuting has become extinguished by prescription in terms of the provisions of the Prescription Act 68 of 1968 ("the Prescription Act").

15. In terms of paragraph 2 of the Plaintiffs notice of intention to amend, the proposed new paragraphs 5.1 to 5.6 of the Plaintiffs particulars of claim, the proposed new first alternative claim is based on, so contends the Second Defendant, breach by the Second Defendant of a totally new partly oral and partly written agreement of mandate entered into by and between the Plaintiff and the Second Defendant which was not pleaded at all in the Plaintiffs first alternative amendment.

16. According to the Second Defendant's counsel, if the current allegations and relief claimed are compared with the allegations and relief claimed in the proposed particulars of claim, what the Plaintiff seeks to recover from the Defendant in the Plaintiff's current particulars of claim is a very different debt or claim to that which the Plaintiff seeks to receive in the proposed amendment claim. In the Plaintiffs current particulars of claim the Plaintiff seeks payment of money for damages he sustained, the cost of repairing the aforementioned motor vehicle resulting from a breach of contract by the First Defendant of an agreement of insurance concluded between it and the Plaintiff, in other words a debt payable by reason of a contractual undertaking by the First Defendant to indemnify the Plaintiff for the loss he has sustained.

19.  I now need to examine what the Plaintiff alleged in his original summons.  In paragraph 5.3 of his particulars of claim the Plaintiff stated as follows:

In paragraph 5.3 of his original particulars of claim the Plaintiff stated as follows:

He continued and alleged in paragraph 5.1 of his particulars of claim that:

20. It would appear that in the Plaintiffs notice of amendment the same contractual claim is also set out and the Plaintiff claimed damages as a consequence of the Second Defendant's breach of the contract that was concluded between the Plaintiff and the Second Defendant. This appear quite clearly from the following paragraphs in the notice of amendment:

23. I found accordingly that the Plaintiffs proposed amendment was substantially the same as the original cause of action. The Plaintiff was also of the view that the Plaintiff's contemplated amendment would not in any way prejudice the Second Defendant. It is for these reasons that on 11 August 2009 I granted the order as set out hereunder:
1) The Plaintiffs application for leave to amend his Particulars of Claim is hereby granted.
2) The Plaintiff is hereby granted leave to amend his Particulars of Claim in accordance with paragraphs 1,2 and 4 of his notice of amendment dated 21 July 2009.
3) It is hereby ordered that costs should be in the cause.
4) The trial of the matter is postponed hereby sine die.

PM MABUSE 
JUDGE OF THE HIGH COURT