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

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.

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