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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: Johannes Lodewikus Van Der Walt vs N J Bosman

• Case Number: 283/08

• High Court: Port Elizabeth High Court (South Eastern Cape Local Division)

• DATE HEARD: 29 January 2009

• DATE DELIVERED: 30 January 2009(Order delivered)

30 January 2009(Reasons available)

JUDGE(S): REVELAS J

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): Adv L schubart

• for the Respondent(s): Mr Ungerer

Instructing attorneys:

• Applicant(s): Goldberg & De Villiers

• Respondent(s): Galphin & Searle

CASE INFORMATION – Motion Court

• Nature of proceedings: Application

• Topic :

• Key Words:

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No: 283/08

Date Heard: 29/01/09

Order Delivered: 30/01/09

Reasons Available: 30/01/09

In the matter between

JOHANNES LODEWIKUS VAN DER WALT Plaintiff

and

N J BOSMAN Defendant

JUDGMENT

REVELAS J

[1] The plaintiff, Mr van der Walt, was involved in a motor vehicle collision which occurred on 29 May 2006. The vehicle he was driving at the time was insured by Santam Limited (“Santam”). On 4 February 2008 the plaintiff, in his own name, issued summons out of this court against the defendant for damages, alleging that the collision was caused solely by the defendant’s negligence.

[2] The plaintiff’s attorney of record was under the impression that the plaintiff was insured by Santam, because all the insurance documents referred to the plaintiff and so did the details pertaining to the vehicle itself. Only after the defendant disputed the applicant’s locus standi, and the sales agreement in respect of the vehicle was obtained from BMW Finance Service, it was established that the owner of the vehicle is in fact “Rockafè CC” (formerly Mansder Enterprises CC).

[3] A Notice of Intention to Amend was duly served on the defendant who objected to the proposed amendment of the summons and particulars of claim substituting the plaintiff with “Rockafè CC” the owner of the vehicle.

[4] The defendant, as respondent, opposed the application for amendment substituting the plaintiff (or applicant) with “Rockcafè” in the pleadings. The respondent did not file any affidavits. The objection was premised on the notion that the amendment would result in prejudice to the defendant (or respondent) in that the actual owner might not be interested in the litigation.

[5] Since the application had been filed, Santam has undertaken to indemnify both the plaintiff and Rockcafè. Therefore neither of these two parties could later resile, to the respondent’s prejudice, from the litigation. In terms of the doctrine of subrogation, Santam, the insurer, is dominis litis, and therefore entitled to persue the action against the respondent. The respondent’s fears should thus be allayed. Because the respondent chose not to file an answering affidavit, it is difficult to imagine what prejudice he may suffer in the face of the subrogation rule which requires the insurer to sue in the insured’s name. The main issue, namely which driver was negligent, and to what degree, would be determined in trial proceeding irrespective of who the owner is. The respondent has not persuaded me that the amendment should not be granted.

In the result I make the following order:

1. The amendment in paragraph 1 and 2 is granted as set out in the Applicant’s (plaintiff) Notice of Motion.

2. There is no order as to costs.

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E REVELAS

Judge of the High Court

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