Santam Insurance Co Ltd v Manqele

• Jurisdiction: South Africa
• Judge: James JP
• Judgment Date: 15 November 1974
• Citation: 1975 (1) SA 607 (D)
• Hearing Date: 01 November 1974
• Court: Durban and Coast Local Division

James, J.P.:

On 3 April 1974 the respondent initiated an action against the applicant arising out of an accident which occurred in February 1972. He did so by means of a combined summons and in his particulars of claim he alleged that he had been injured when boarding an insured bus then being driven by one Myende. He asserted that his injuries had been caused by Myende's negligence and he claimed R8 234 damages from the applicant. He averred that the applicant was an insurance

James JP

company but he failed to allege that it was the insurer of the bus being driven by Myende.

In due course the applicant entered an appearance to defend and subsequently took an exception to the combined summons on the A grounds that it lacked averments necessary to sustain an action since it contained no averment linking the present applicant with the so-called insured vehicle.

When the exception came before the Court, the Court made an order, which I am informed by counsel was by consent, upholding B the exception with costs, and striking out the further particulars of plaintiff's claim and granting the plaintiff (the respondent herein) leave to deliver amended particulars of claim within 14 days. As no further particulars had, in fact, been filed in this case it is clear that the order striking out the further particulars in fact related to the particulars of claim and that it was the particulars of claim incorporated in C the combined summons which was in fact struck out. This is not disputed by the parties. Particulars of claim when set out in a combined summons are to all intents and purposes a declaration filed contemporaneously with the summons commencing action and in drawing it up the general rules in regard to pleadings must be observed. See Supreme Court Rule 18.

D The period of 14 days allowed by the Court to deliver amended particulars of claim expired on 10 May 1974 and the respondent failed to furnish the amended particulars by that date. He however sought to serve such particulars early in June 1974, the precise date being not beyond doubt, but the applicant's E attorneys refused to accept them on the grounds that delivery was out of time as the Court order only allowed the respondent 14 days within which to file them.

Neither party took any further action in the matter until 10 September 1974 when the applicant filed an application for an order dismissing the respondent's action with costs. This F induced a reaction from the respondent who managed to obtain an adjournment of the application by consent by agreeing to pay the applicant's wasted costs, and who thereafter filed a set of affidavits in which he did not dispute that he had been barred but applied for condonation of his neglect in filing his amended particulars within the time laid down by the Court and he annexed to his application the particulars which he asked G leave to file. This counter-application was opposed.

When the matter came before me both parties assumed that the respondent had become barred...