The term 'litis contestatio' refers to the stage in civil legal proceedings when pleadings have closed as the issues in dispute have been defined and finalised between the litigating parties. Thereafter, the parties will begin their trial preparations.
In terms of Rule 29(1) of the Uniform Rules of Court, pleadings are considered to be closed in the following circumstances:
- If any of the parties joined issue without alleging any new matter, and without adding any further pleading;
- If the last day allowed for filing a replication or subsequent pleading has lapsed and it has not been filed;
- If the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar of the court, or
- If the parties are unable to agree as to the close of pleadings, the court, upon application by either party, declares them closed.
Our law distinguishes between claims for general damages ('non-patrimonial damages') and special damages ('patrimonial damages'). General damages may be claimed in circumstances where the claimant has suffered pain and suffering, primary emotional shock (in RAF claims), disability and loss of life expectancy. Special damages, on the other hand, may be sought if the claimant has incurred expenses for past and future medical and hospital treatments, loss of earnings or earning capacity and funeral expenses. The general rule is that if a plaintiff dies after the close of pleadings, the executor of the plaintiff's estate may claim for both special and general damages, as both of these damages will form part of the deceased's estate. However, if a plaintiff dies before the close of pleadings, the executor may only proceed with the claim for special damages.
The South African Supreme Court of Appeal ("SCA") in Oliver NO v MEC for Health: Western Cape Provincial Department of Health recently dealt with an appeal from the Western Cape Division of the High Court in which it shed light on the interruption of close of pleadings following the filing of an amended pleading and the subsequent transferability of a claim for general damages in such circumstances.
Background facts
This appeal arose from action proceedings instituted by Mrs Wareldiah Oliver ("the deceased") against the Member of the Executive Council for Health, Western Cape ("the MEC") for damages arising out of the alleged negligent treatment by the hospital staff in the MEC's employ which resulted in the amputation of the deceased's leg. The deceased initially sought compensation for past and future medical and hospital expenses (ZAR2 220 000), loss of earnings (ZAR50 000) and general damages (ZAR950 000).
However, roughly a year and a half after pleadings had closed, the deceased amended her particulars of claim to increase her special damages claim for future medical and hospital expenses by R3 930 000. The deceased passed away 5 days later and before the MEC could reply to this amendment. This gave rise to a dispute between the MEC and Tashreeka Oliver NO (the executor of the deceased's estate and substituted plaintiff) as to whether this latest amendment to the deceased's claim had the effect of re-opening the pleadings. If so, whether the deceased's claim for general damages was transferable to her estate or had fallen away since she passed away a few days later.
In the High Court, the MEC argued that claims for special and general damages constitute a single cause of action. Therefore, the deceased's material amendment to her particulars of claim had the effect of reopening the pleadings. Close of pleadings was not reached again since the deceased passed away before the MEC could reply, and therefore, the MEC contended that her general damages claim could not be transferred. The executor disagreed and argued that the law allows a person to claim patrimonial and non-patrimonial damages in the same action. However, these still constitute two distinct causes of action. As a result, the deceased's amendment to her special damages claim did not affect the transferability of her general damages claim.
The executor also argued that if the High Court rejected this argument, the common law should be developed to cover the transferability of general damages based on the facts of this case, as this would give effect to the Bill of Rights. The High Court ultimately found in favour of the MEC and held that no valid case had been made for the development of the common law in these circumstances.
The transferability of general damages
The SCA noted that whilst the common law principles governing the transferability of general damages following the plaintiff's death before or after close of pleadings are well-settled, the contentious issue in this case arose from the fact that the amendment was only directed towards the quantum of her special damages claim. This, in turn, gave rise to two further issues; namely, whether claims for patrimonial and non-patrimonial loss constituted separate causes of action, and secondly, whether the close of pleadings falls away when pleadings are amended after it had already been reached.
The SCA held that it is trite law that claims for special and general damages constitute a single cause of action. The SCA highlighted that Rule 29(1) is silent on the effect of effecting an amendment after the close of pleadings. Nevertheless, the SCA had previously expressed in Natal Joint Municipal Pension Fund v Endumeni Municipality that when pleadings are reopened by an amendment, the initial situation of close of pleadings falls away and is only restored once the issues have once more been defined in the pleadings. This principle was expanded upon by the KwaZulu-Natal Division of the High Court in K.J.S v M.J.S, which held that the amendment must be material in order to undo the earlier litis contestatio.
The SCA held that the deceased's amendment was material and significantly altered the issues in dispute, as, amongst other things, the quantum of her new special damages claim had increased by 117% and now set out 41 procedures not previously pleaded which she would have to undergo in the future. This would necessarily trigger a response from the MEC. Therefore, the initial close of pleadings fell away and was not yet reached again. Since the deceased passed away a few days later, the SCA held that her general damages claim was extinguished and could not be transferred to her estate.
The development of the common law
The executor's argument for the development of the common law was based on the premise that the deceased had passed away after the litis close of pleadings was first achieved, and the amendments did not affect her general damages claim nor the issues in dispute. The SCA highlighted that the executor did not properly plead how the common law should be developed in this regard to allow the transferability of the general damages claimed to the deceased's estate.
The SCA concluded by remitting the matter back to the High Court to determine whether the common law rule regarding the non-transferability of general damages after the close of pleadings should be developed on the facts of this case. The SCA granted the executor leave to file a further amendment to the particulars of claim within 30 days from the date of its order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
