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05 Feb 2024
BY James Haydock , Brian Motloung AND Thabani Mabubula

The next (procedural) step following an application to strike out

The High Court in Johannesburg handed down a judgment in November 2023  illustrating the effect of an application to strike out a defence, and the next procedural step that legal practitioners ought to take following the granting of an application to strike out a defence.

The matter before the court, Adv. Motala N.O. K.C.W. v Road Accident Fund was one where the plaintiff claimed against the Road Accident Fund (“RAF”) for personal injuries sustained in an accident. The plaintiff in this matter was acting in his representative capacity as curator ad litem of a minor, who was 14 years old on the day of the hearing.

On 2 May 2023, Strydom J struck out the RAF’s defence, granting the plaintiff an order to approach the registrar of the court to seek a date for default judgment against the defendant. On the date of the hearing of the default judgment, the court addressed the process, as follows.

Effect of the defendant’s defence having been struck out

The court held that the striking out of a defendant’s defence constitutes a bar to the defendant tendering evidence which had or could have been pleaded in its plea. However, the defendant’s legal representatives are still entitled to represent the defendant in the matter, despite the defendant’s defence being struck out.

The court described the defendant’s position as “conceptually analogous to that of a respondent who has filed a notice in terms of Rule 6(5) (d) (iii) that it intends to oppose the applicant’s application on a question of law only”.

Therefore, a plaintiff must still prove both the entitlement to damages (the merits) and the amount of damages. In addition, a defendant is not precluded from cross-examining the plaintiff’s witnesses’, in order to test the veracity of the plaintiff’s version. The defendant may not, however, put a different factual version to any witness because the defendant is barred from leading evidence to substantiate its alternative version. The court remarked that the striking out of a defence accordingly relates to issues of fact.

In the present case, for instance, the defendant was precluded from leading evidence concerning the collision itself or any evidence to the effect that the plaintiff had not sustained any injuries in the collision.

But questions of pure law, and mixed law and fact, stand on a different footing, as do procedural issues which do not entail traversing the defendant’s defence. Thus, in casu, the plaintiff’s application to amend its particulars of claim was completely independent of the defendant’s defence which had been struck out. The defendant was accordingly entitled to be heard in relation to the plaintiff’s application for an amendment.

It is by now trite that the determination of appropriate contingencies fall within the court’s discretion which must be exercised judicially based on the surrounding facts and circumstances.  This determination constitutes a question of mixed law and fact, because it involves the application of legal principles concerning the assessment of damages to a specific set of facts and circumstances.  For this reason, the defendant was heard by the court in regard to the assessment of appropriate percentages to be applied in taking account of contingencies.

The same principle applies in the assessment of general damages. An assessment of what would constitute an appropriate award for general damages is predicated upon the court applying legal principles to the facts relevant to quantum.

Accordingly, a defendant is similarly entitled to make submissions relating to the assessment of general damages.

Conclusion

This case is a useful illustration of the process that must be followed following the granting of an application to strike out a defence. It also clarifies the rights that the defendant retains in an application for default judgment, even if the defence has been struck out.

 

James Haydock

Executive | Dispute Resolution

 jhaydock@ENSafrica.com

 

Brian Motloung

Associate | Dispute Resolution

bmotloung@ENSafrica.com

 

Thabani Mabubula

Candidate Legal Practitioner | Dispute Resolution

tmabubula@ENSafrica.com