In April 2025, the Supreme Court of Appeal (SCA) confirmed the position that our common law does not permit the transmission to a deceased estate of a claim for general damages or non-patrimonial loss occasioned by bodily injury if the claimant dies before the close of pleadings (litis contestatio)is reached.  However, the SCA opened the door for this common law rule to be developed where the pleadings, previously closed, are materially amended.

The claimant had instituted an action against the MEC for Health: Western Cape for damages arising out of alleged negligence by the MEC’s employees in her treatment which led to the amputation of her leg.  

Pleadings closed and therefore litis contestatio was reached in January 2016. On 4 October 2017, the claimant amended her particulars of claim, which included a substantial increase to her future medical expenses claim based on the pleading of an additional forty-one procedures that the claimant alleged she would be required to undergo in the future. The claimant passed away on 9 October 2017, which was before pleadings closed either by the MEC delivering an amended plea or the expiration of the time period in terms of the rules of court.  

The SCA decided that the claimant’s amendments to the particulars of claim significantly altered and expanded the issues which had a bearing on the damages suffered by her that would go to trial. The amendments were material and would require the MEC’s response in an amended plea. As a result, the legal effect of the amendments was that the initial litis contestatio reached in January 2016 fell away. As a result, in terms of the common law rule, the claim for general damages was not transmissible to the deceased estate.

However, the SCA upheld the appeal by referring the action back to the high court to determine whether the common law rule, regarding the transmissibility of general damages or non-patrimonial loss after pleadings had been reopened and litis contestatio had fallen away, should be developed on the facts of this case.

It will be interesting to see if the High Court decides to develop the common rule on the facts of this specific case.

This judgment is a reminder to lawyers who specialise in personal injury claims of the effect of amendments of pleadings which cause the reopening of pleadings and may result in litis contestatio already reached falling away.

Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023) [2025] ZASCA 45