Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the Nkala Judgment has on Litis Contestatio

Keywords: Civil procedure, litis contestatio, class action, development of the common law, delict

Abstract

The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment.

 

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References

Bibliography

Literature

Davis 2014 Stell LR
Davis DM "Where is the Map to Guide Common-law Development?" 2014 Stell LR 3-14

Jolowicz Historical Introduction
Jolowicz HF Historical Introduction to the Study of Roman Law 2nd ed (Cambridge University Press London 1967)

Jones and Buckle Civil Practice of the Magistrates' Courts
Jones PST and Buckle HO The Civil Practice of the Magistrates' Courts in South Africa 10th ed (Juta Cape Town 2011)

Peté et al Civil Procedure
Peté S et al (eds) Civil Procedure: A Practical Guide 3rd ed (Oxford University Press Cape Town 2017)

Theophilopoulos et al Fundamental Principles
Theophilopoulos C et al (eds) Fundamental Principles of Civil Procedure 3rd ed (LexisNexis Durban 2015)

Thomas Textbook of Roman Law
Thomas JAC Textbook of Roman Law 2nd ed (Juta Cape Town 1976)

Van Zyl History and Principles of Roman Private Law
Van Zyl DH History and Principles of Roman Private Law (Butterworths Durban 1996)

Case law
KS v MS 2016 1 SA 64 (KZN)
Lee v Minister of Correctional Services 2013 2 SA 144 (CC)
Maphango v Aengus Lifestyle Properties (Pty) Limited 2012 3 SA 531 (CC)
Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ)
Potgieter v Sustein (Edms) Bpk 1990 2 SA 15 (T)

Legislation
Constitution of the Republic of South Africa, 1996
Magistrates Court Act 32 of 1944 (and Rules)
Superior Courts Act 10 of 2013 (and Rules)

List of Abbreviations

Stell LR Stellenbosch Law Review
TB Tuberculosis
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Published
2019-04-15
Section
Case Notes