The Western Cape High Court erroneously held in Oliver NO v MEC for Health Western Cape and City of Cape Town that the deceased plaintiff’s non-pecuniary claim for general damages did not transfer to her estate as the matter had not reached litis contestatio (close of pleadings) because the summons had been amended to increase the amount of damages claimed.

The plaintiff amended her claim for damages. Shortly after the amendment was effected the plaintiff passed away fifteen (15) days period afforded to the defendant to file an amended plea. The first defendant did not amend its plea.

The plaintiff’s estate requested the court to develop the common-law allegedly to bring it in line with the Bill of Rights and to allow the general damages claim pass to her estate.

The court rejected the plaintiff’s argument. It held that litis contestatio brings about agreement between the parties on the issues in dispute giving rise to a ‘quasi-contractual obligation’, which renders the claim transmissible. The court held that the plaintiff’s amendment resulted in the disruption of the litis contestatio and the claim for non-patrimonial damages was not transmissible to her estate as a result thereof.

The position taken by the Western Cape High Court should not be followed.