Joining a Defendant After Death: Why It Doesn’t Save an Extinguished Claim

The Gauteng Division of the High Court, Pretoria, recently had to decide an issue in the judgment of Maoto N.O v Minister of Police (54912/2014) concerning the transmissibility of a non-patrimonial damages claim to a deceased estate in circumstances where the joinder of a party to the main proceedings post-dated the death of the deceased.

Factual Exposition

On 14 August 2014, the deceased instituted a claim for damages against the Minister of Police (“first defendant”), Constable Johannes Lelaka (“second defendant”) and the Minister of Justice and Constitutional Development (“third defendant”). The claim was based on his unlawful arrest and detention, and malicious prosecution (“the action proceedings”).

On 28 October 2020, the deceased instituted an application to join the National Director of Public Prosecutions (“NDPP”) as the fourth defendant to the action proceedings (“the joinder application”). The deceased thereafter passed away on 21 February 2021, before the joinder application was finalised. On 12 August 2021, the NDPP was then successfully joined to the action proceedings.

The deceased’s attorney then delivered a notice of bar in respect of the NDPP’s plea on 13 September 2021. During this time, the attorney was unaware of the deceased’s death and would only become aware on 29 July 2022.

The executor then joined the proceedings in a representative capacity on 22 November 2022 as the plaintiff. On 13 September 2023, the NDPP delivered a special plea and plea.

Thereafter, the plaintiff instituted two interlocutory applications: (1) in terms of Rule 30 seeking to declare the special plea and plea to be an irregular step and setting it aside; and (2) seeking condonation for failure to deliver a notice in terms of section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 in respect of intended legal proceedings to the NDPP.

The Issue:

During the hearing of the interlocutory applications, the Court saw it prudent to consider whether there were any valid and enforceable claims against the NDPP to which the interlocutory applications can attach, considering the death of the deceased. The Court took this approach because interlocutory applications are not free standing.

Ruling:

The Court commenced by acknowledging that the main claim in the action proceedings is a personal claim for non-patrimonial damages. Such claims only pass to the estate of the deceased if litis contestation (close of pleadings) was reached during the lifetime of the claimant. They serve to compensate the injured person for harm personal to him. The estate or the heirs do not suffer harm. The Court held that litis contestatio ensures that live proceedings are not disrupted by the death of a claimant. Accordingly, the claim is extinguished if the claimant dies before that stage.

After acknowledging that no case had been made for the development of the common law and therefore applying settled principle – the Court found that as the deceased died on 21 February 2021, litis contestatio had not been reached at that stage between the deceased and the NDPP as the latter was not a party to the action proceedings. Therefore, pleadings could not close against it. The claim against the NDPP was therefore extinguished by operation of law and could not pass to the estate.

The Court also rejected the plaintiff’s argument that litis contestatio was reached by the effluxion of time because the NDPP, for failure to timeously plead after being joined, was out of time. The rejection was on the following basis:

• Firstly, joinder of the NDPP opened the pleadings for it – which is different from joinder of issue, which closes the pleadings.
• Secondly, litis contestatio must be reached during the lifetime of the claimant. Whichever date the plaintiff could select in the matter was after the death of the deceased.
• Thirdly, the argument assumes that there was a claim that was alive, which only needed to be carried across the litis contestatio After joinder, there was no claim against the NDPP that could be pleaded to, barred or closed because the claim extinguished on the death of the deceased.
• Lastly, the Court held that the post-death joinder was self-defeating of the plaintiff’s claim as it confirmed its abatement against the NDPP. Further, there was doubt as to whether a defendant can be joined to proceedings after the plaintiff’s death and before a representative of the estate exists.

Further, the Court rejected the argument that acts done in good faith by an attorney who is ignorant of his client’s death are valid. The rule, even if applied, could not assist as it concerns the validity of acts, not the survival of the rights of the principal. The rights in the matter had been extinguished on 21 February 2021.

The Court noted that an independent action by a dependant, such as for loss of support, is unaffected by the maxim (actio personalis moritur cum persona meaning a personal right of action dies with the person). However, this did not assist the plaintiff as she sued as an executor advancing the deceased’s own personal claim and not an independent dependant’s claim. In addition, as the claim had extinguished on 21 February 2021, the Court refrained from deciding whether the claim had also prescribed.

In light of the finding that the claim against the NDPP had extinguished, the interlocutory applications were dismissed. It is important to note that the judgment was only confined to the claim against the NDPP. The Court refrained from deciding whether litis contestatio had been reached against the first and second defendants before the deceased’s death.

Conclusion

This judgment provides a valuable reminder of the distinction between patrimonial and non-patrimonial damages, and how the death of a claimant impacts their validity and enforceability.

Further, perhaps a lesson to be learned from the 6-year gap between the institution of the action proceedings and joinder application pertains to the thorough investigation of claims to ensure that proper parties are before a court to avoid the possibility of claims being extinguished.

In so far as the Court held that litis contestatio must be reached during the lifetime of a claimant, practitioners must note that the late joining of a supposed defendant does not cure an already-extinguished claim.