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2021
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[2021] ZAWCHC 199
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Joseph v City of Cape Town and Others (352/2021) [2021] ZAWCHC 199 (13 October 2021)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:
352/2021
Before: The Hon. Mr Justice Binns-Ward
Hearing: 13 October 2021
Judgment: 13 October 2021
In the matter between:
RICHARD
JOSEPH
Plaintiff/Respondent
and
CITY OF CAPE
TOWN
First Defendant/Excipient
NICO DE
COCK
Second
Defendant/Excipient
WENDY DANIELS
Third
Defendant/Excipient
JUDGMENT
BINNS-WARD
J:
[1]
According to his particulars of claim,
which were drafted by an attorney with right of appearance in the
High Court who has since
withdrawn as attorney of record, the
plaintiff, Mr
Richard
Joseph,
is a traffic officer in the employ of the City of Cape Town. He
has sued the defendants for compensation in damages
in the sum of
R4 556 086,30, comprised of R56 086,30 for ‘
past
loss of two months’ earnings and medical expenses ... as per
the Salary Advice and Medical Accounts annexed ... marked
Annexures
“I”, “J”, “K”
’
and R4 500 000 for ‘(g)
eneral
damages for pain and suffering (as pleaded hereinabove)
’.
The aforesaid damages are alleged to have been
‘
suffered
... as a direct result of the charges, dismissal and defamation
’.
[2]
Annexure “I” to the particulars
of claim is a salary advice issued to the plaintiff by the City of
Cape Town in respect
of the month of May 2018. It reflects that
the plaintiff earned a monthly salary of R20 848, and that in
that month
he was received additional emoluments in respect of
‘standby days’ bringing his gross earnings for the month
to R25 485,62
before deductions. Annexure “J”
is an account rendered to the plaintiff from a dental surgeon for
certain dental
work including what appears to be at least one,
possibly two, tooth extractions done during June 2018 on one
Enrique
Joseph, whose date of birth is given as 14 April 2013. An
amount of R2649,30 was invoiced in terms of the said account.
Annexure “K” is an account rendered to the plaintiff by
an anaesthetist in the amount R2 465,76. It would
appear
that the account relates to attendances by the anaesthetist in
relation to the aforementioned dental work on
Enrique
Joseph. Quite what significance the dental treatment rendered
to the child Enrique Joseph bears on the plaintiff’s
claims for
special or general damages is not elucidated in the particulars of
claim.
[3]
It may be discerned from the particulars of
claim – which, as should already be apparent, are far from a
model of clarity
- read with the annexures thereto that the
aforementioned ‘
charges
’
relate to disciplinary proceedings instituted by the City against the
plaintiff in respect of his absence from work on 1 January
2018
and his failure to produce a doctor’s certificate in
substantiation of his claim to have been sick that day. The
plaintiff was allegedly subject to a ‘Directive (Instruction)
01/2017’ that (according to the content of annexure H
to the
particulars of claim, which was the finding of the internal appeal
tribunal in the plaintiff’s aforementioned disciplinary
proceedings) ‘
demanded from staff
based in Area East to bring a sick certificate from a medical
practitioner when booking off sick during the
festive season which
included 01 January 2018
’.
[4]
The ‘
dismissal
’
for which damages are claimed appears to relate to the sanction
imposed on the plaintiff at first instance in the aforementioned
disciplinary proceedings. The first instance disciplinary
tribunal, having found the plaintiff guilty in respect of the charge
related to his failure to provide a doctor’s certificate, held
that he should be summarily dismissed, which duly happened,
subject,
of course, to his right of appeal. As appears from the
pleading, the plaintiff’s appeal was successful and
the
disciplinary conviction and the sanction of summary dismissal were
set aside. That much is apparent from annexure “H”
to the pleading, which is incorporated by reference in paragraph 12
of the particulars of claim.
[5]
The City being an organ of state, it was
necessary, in terms of
s 3
of the
Institution of Legal Proceedings
Against Certain Organs of State Act, 2002
, for the plaintiff to give
notice of his intention to institute the action for damages against
it. The plaintiff annexed
a copy of the relevant
notice
as annexure “L” to the particulars of claim. The
notice contains the following statement (in para 8 thereof):
‘
Although he was later reinstated
and the municipality compensated him for the loss in income for the
two months, this reflected
badly on his credit profile and coupled
with interest for non-payment
’.
There are no allegations in the particulars of claim that provide
insight into the plaintiff’s credit profile
or how his
disciplinary proceedings ‘
reflected
badly
’ on it. There is also
no particularity to give substance to the phrase ‘
coupled
with interest for non-payment
’.
The only corresponding allegation in the body of the pleading is at
paragraph 15, in the following terms:
‘
Although the Plaintiff was later
reinstated by the First Defendant, the Plaintiff was unable to
service and attend to his medical
expenses, credit accounts, coupled
with interest accrued due to non-payments on the Plaintiff’s
accounts severely affected
the plaintiff’s credit profile and
resulted in severe financial stress which the affected the
Plaintiff’s health.’
[6]
The ‘defamation’ claim is
founded on the following allegations in paragraph 13 of the
particulars of claim:
‘
Despite the Plaintiff’s dismissal
being set aside the levelling of the charges against the Plaintiff by
the First Defendant,
alternatively Second Defendant, further
alternatively Third Defendant greatly impaired his good name and good
standing as it was
the subject of talk withing
(sic)
the Traffic Service Department and thereby
impairing the dignity of the Plaintiff and defaming the Plaintiff’s
good name’
[7]
The City is cited in the action as the
first defendant. The second defendant is employed by the City
as a principal inspector
in the Traffic Services Department.
The third defendant is an inspector at another office of the
department.
[8]
The defendants have delivered a notice of
exception to the plaintiff’s particulars of claim on six
separate grounds.
[9]
The first ground is that inasmuch as the
plaintiff claims compensation in damages for defamation, the
particulars of claim fail
to disclose a cause of action. It is
alleged that the pleading fails to contain sufficient averments to
sustain a cause of
action for defamation inasmuch as:
1.
The plaintiff has failed to set out
words or statements alleged to have been used by the defendants.
2.
The plaintiff has failed to allege
that such words or statements are defamatory; and
3.
The plaintiff has failed to allege that
the defendants or any of them published any defamatory words or
statements, or any particulars
of any publication at all.
[10]
It is trite that anyone claiming damages
for defamation must set out the words alleged to have been used by
the defendant, or at
least describe the substantive import of the
allegedly defamatory statement. The plaintiff has failed to do
so. The
first ground of exception must accordingly be upheld.
[11]
The second ground of exception is that the
plaintiff has alleged that the first defendant is vicariously liable
for the allegedly
wrongful acts of the second and third defendants
(i) without making any allegations in the pleading that would
sustain a cause
of action against either the second or the third
defendant and (ii) ‘
in
addition and in any event a claim against First Defendant based on
vicarious liability, and a simultaneous claim of personal
liability
on the part of the Second and Third Defendants are mutually exclusive
as pleaded
’.
[12]
In my judgment, the first of the two bases
on which the second ground of exception is raised is good.
There are no allegations
in the pleading that make out a cognisable
claim against the second and third defendants, and accordingly a
foundation for the
first defendant’s alleged vicarious
liability has not been established on the face of the pleading.
I do not think
there is any merit in the second basis for second
ground of exception. In a case where there is reason to hold an
employer
vicariously liable for the wrongdoing of an employee, such
liability will always be co-extensive with that of the employee.
The second ground of exception will therefore be upheld on the first
of the two aforementioned bases upon which it has been raised.
[13]
The third ground of exception is directed
at what appears to be the plaintiff’s claim for damages in
respect of the allegedly
malicious institution of disciplinary
proceedings against him – the claim for ‘
charges
’
and ‘
dismissal
’
to use the terminology of the pleading. The defendants contend
that the plaintiff has failed to plead an essential
element for such
a claim, being the institution of the proceedings by the defendants
without a reasonable and probable cause.
I think the objection
is well taken. It is clear from the pleaded facts that the
plaintiff was in breach of the aforementioned
Directive (Instruction)
01/2017. That the plaintiff was ultimately acquitted, based on
the appeal tribunal’s finding
that the disciplinary tribunal of
first instance should have held that he had a reasonable excuse for
being non-compliant, does
not, without more, imply or establish the
absence of a reasonable cause for the institution of the
proceedings. The third
ground of exception will accordingly
also be upheld.
[14]
The fourth ground of exception is that the
pleaded claim for compensation for two months’ loss of income
is vague and embarrassing
because it appears from the plaintiff’s
representatives’ letters to the defendants, which are annexed
to the pleading,
that the City had already made good the plaintiff’s
lost income following on the reversal on appeal of the sanction of
summary
dismissal. I refer in this regard to my description of
the relevant part of the pleading in
paragraph
[5]
above. I agree that the pleaded
claim for loss of income is vague and embarrassing for the reason
raised in the defendants’
complaint. It is not at all
clear what the alleged basis for the claim is.
[15]
The fifth exception is directed at what
appears to be an allegation in support of the plaintiff’s claim
for damages for malicious
prosecution, viz. the allegation in
paragraph 17 of the pleading that the defendants ‘
were
under a duty to prevent such unjust allegations being brought against
him
’. The defendants
complain that there is no pleaded basis for the existence of the
alleged duty. They say that
the pleading is vague and
embarrassing in the result. I think there is substance in this
complaint too.
[16]
Firstly, it is difficult to reconcile the
pleaded allegation with the fundamental basis of the claim, which is
that the defendants
instituted the proceedings, rather than they
caused someone not cited as a defendant to do so.
[17]
Secondly, and this is by no means clearly
apparent on the pleading, if the allegation was made in support of
some sort of innominate
delictual claim of an Aquilian action
character, one not falling into the niche of malicious prosecution
which is brought under
the
actio
iniuriarum
, then the defendants
justifiably complain that no basis for the existence of the alleged
duty in law has been pleaded. The
facts upon which the
existence of the duty and its alleged breach rest must appear in the
pleading. A conclusion of law pleaded
in a vacuum is not good
enough to sustain a claim. The matter pleaded in paragraph 17
does render the pleading vague and
embarrassing. The breach of
a duty in law is ordinarily associated with the wrongfulness element
in an Aquilian action.
The allegation therefore does not appear
to be relevant to either the defamation or the malicious prosecution
claims, which do
not resort under the Lex Aquilia. If it were
intended to support a third head of claim, it is not clear what that
head
is. The fifth ground of exception will therefore be
upheld.
[18]
The sixth ground of exception was framed as
follows:
‘
In paragraphs 20 and 21 of the
particulars, Plaintiff claims “damages” arising from the
“charges, dismissal and
defamation”.
Plaintiff fails to plead which alleged damages are attributable to
(1) the charges; (2) the dismissal; and (3) the defamation.
Stated differently, it is not apparent from the particulars which
cause(s) of action resulted in which damages.
Moreover, successful claims for defamation or malicious
proceedings entitle a plaintiff to payment of delictual “damages”.
Such damages are not, however, -
1.
loss of income or “medical
expenses”; or
2.
“
general damages for pain and
suffering”,
as
claimed in paragraph 21 of the particulars.
The particulars are consequently vague and
embarrassing.
’
[19]
The points are well taken. It is by
no means clear what precisely the nature of the pleaded claims is.
The pleading
seems to be directed at advancing a claim for malicious
prosecution and defamation, but, for some of the reasons already
canvassed,
even that is not certain. The resulting confusion is
compounded by the plaintiff’s failure to plead severally the
quantum
of the damages he claims in respect of what may be discerned
as a multiplicity of claims. The pleading falls signally short
of compliance with Uniform
Rule 18(10)
, which requires ‘a
plaintiff suing for damages to set them out in such manner as will
enable the defendant reasonably to
assess the quantum thereof’.
I consider that the resultant vagueness is sufficiently prejudicial
to the defendants
to justify their having raised an exception.
The sixth ground of exception is therefore also upheld.
[20]
In the result the following order is made:
1.
The defendants’ exceptions to the
plaintiff’s particulars of claim are upheld with costs.
2.
The plaintiff is afforded 15 days within
which to deliver amended particulars of claim.
A.G. BINNS-WARD
Judge of the High Court
Excipients’
counsel:
Nick de Jager
Excipients’
attorneys:
John MacRobert Attorneys
Tableview
Brevity Law
Cape Town
No
appearance for the Plaintiff/Respondent.