Hart and Another v Nelson

• Jurisdiction: South Africa
• Judge: Liebenberg J and Horn AJ
• Judgment Date: 17 February 2000
• Citation: 2000 (4) SA 368 (E)
• Docket Number: CA 96/99
• Hearing Date: 10 December 1999
• Counsel: R W N Brooks for the appellants. I J Smuts SC for the respondent.
• Court: Eastern Cape Division

Horn AJ:

The respondent, who was the third plaintiff together with one Roe, who was the first plaintiff, and Eugene Mills, who was the second plaintiff in the action, issued H summons against the appellants in which they claimed against the appellants together with a partnership which was the third defendant in the action, jointly and severally damages arising from a fire which the appellants had negligently started and allowed to spread on the farms of the plaintiffs. The claim against Roe was paid and nothing further I needs to be said about this. The partnership which was the third defendant in the action is not a party to this appeal. Insofar as it concerns Mills, he had abandoned the judgment which was given in his favour and he likewise is not a party to this appeal.

The appeal is directed against an order made by the magistrate of Grahamstown in terms whereof he set aside a payment into court by the J

Horn AJ

appellants in terms of Rule 18(1) of the Magistrates' Courts Rules and A granted an amendment to the respondent's particulars of claim. The application to set aside the payment into court in terms of Rule 18(1) was based on the view that the payment was irregular by reason thereof that it had amounted to an abuse of the process of the court. In an affidavit in support of the application to set aside the payment into court, attorney Neville Borman of the firm Neville Borman & Botha, who B deposed to the affidavit on behalf of the respondent, sets out the history of the matter and the reasons for submitting that the payment into court by the appellants was an abuse of the process of the court.

The action was instituted on 24 June 1997 at which stage the C respondent's claim was quantified at R13 130. In further particulars furnished on 25 August 1997 the appellants were advised that the respondent would seek to increase his claim to the total sum of R26 742,21. During January 1998 the appellants' attorneys and the respondent's attorneys agreed to have the merits and quantum separated. On 21 April 1998, during the hearing of the matter, agreement was reached between the parties and an order D was issued out of the magistrate's court in terms whereof the appellants were held jointly and severally liable to the plaintiffs in the action for such damages as the plaintiffs would be able to prove. In effect, therefore, the appellants conceded the merits with regard to negligence and all that remained for trial was the question of the E quantum of the respondent's damages. On 17 July 1998 the respondent, having discussed the question of damages with his expert witness, gave notice of intention to amend his particulars of claim in order to increase the amount he had claimed in the summons to a total amount of R53 455,04. At the same time the respondent's F attorney proposed to the appellants' attorney that the expert witnesses who were acting on behalf of the parties consult in order to discuss the question of quantum. That this was done with the object of facilitating settlement cannot be disputed. This procedure, although not binding on the parties, was agreed to by the appellants' attorneys. Correspondence in this vein continued between the parties for some time and eventually on 27 July 1998 the expert on behalf G of the appellants and the expert on behalf of the respondent appeared to reach consensus with regard to the question of quantum. Indeed, the terms upon which the experts reached consensus were reduced to writing and headed as follows:

'Agreement between J E Danckwertz and N C Currie with respect to quantum of plaintiffs' damages as a result of the Greenvale fire of 2 August 1995.' H

In this document all the claims were discussed and the respective experts evidently came to some kind of understanding as to the various amounts they were satisfied the plaintiffs, including the respondent, would be entitled to recover. The document was signed on 27 July 1998 by Currie and Danckwertz. On 31 July 1998, the last day on I which the appellants would have been entitled to object to the respondent's notice to amend his particulars of claim, the appellants, making use of the provisions of Rule 18(1), paid into court the amount originally claimed in the summons by the respondent, that is R13 130. At no time did the appellants object to the respondent's notice to amend his claim. This J

Horn AJ

gave rise to the application. It was the contention of the respondent, particularly taking into account that A consensus concerning the quantum of the respondent's damages had been reached between the expert witnesses of the parties, that the payment into court in terms of Rule 18(1) by the appellants without warning to the opposing side was an abuse of the process of the court. B

In an opposing affidavit the attorney, Gordon Solomon, who acted on behalf of the appellants, denied that there had been an abuse of the process of the court. He contended that the consensus reached between the two experts had no legal effect. It was purely an attempt by the experts to give some guidance as to the question of quantum. It was...