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[2021] ZAWCHC 210
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SB v Storage Technology Services (Pty) Ltd (15550/2020) [2021] ZAWCHC 210 (21 October 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: 15550/2020
In the matter between:
SB
Applicant/Respondent
and
STORAGE TECHNOLOGY SERVICES (PTY)
LTD
Respondent/Excipient
In re: the action between:
SB
Plaintiff
and
ALFREDO
WITLOUW
First Defendant
STORAGE TECHNOLOGY SERVICES (PTY)
LTD
Second Defendant
Coram:
Justice J Cloete
Heard:
14 October
2021
Delivered
electronically:
21 October 2021
JUDGMENT
CLOETE J
:
Introduction
[1] Both
matters before me include a consideration of the effect of certain
amendments introduced in rule 23 of the uniform rules of court
(‘
rule(s)’
) on 22 November 2019, and in
particular rule 23(1).
[1]
[2] The
applicant (who is the plaintiff in the main action) seeks the setting
aside of a re-delivered exception raised by the respondent (the
second defendant in the main action) as an irregular step in terms
of
rule 30, together with other relief.
[3] The
respondent opposes the application but in the event that it is
granted,
persists with the exception delivered prior thereto, which
is in identical terms. That exception is in turn opposed by the
applicant.
Relevant contextual background
[4] On
26 October 2020 the applicant issued summons against the
respondent
and a Mr Witlouw (as first defendant), jointly and
severally, for payment of damages in the total sum of R1 165 000
arising from an alleged sexual assault perpetrated by Witlouw during
the course of a job interview attended by the applicant for
employment with the respondent on 24 April 2018. She alleged
that at the time of the assault Witlouw, who conducted the interview,
was employed by the respondent and acting in the course and scope of
his employment. Witlouw has not defended the action.
[5] After
delivery of its notice of intention to defend the respondent also
delivered, on 11 February 2021, a ‘
Notice to Remove
Causes of Complaint and Notice of Exception’
to the
applicant’s particulars of claim. In that notice, the
respondent raised eight complaints that the particulars of claim
were
vague and embarrassing, and two complaints that they failed to
disclose a cause of action. The respondent also gave the applicant
the required 15 days notice to remove the “vague and
embarrassing” complaints in accordance with rule 23(1).
[6] Having
considered the exception, the applicant was of the view that only
three complaints warranted attention. They all pertained to the
“vague and embarrassing” category. On 9 March
2021
the applicant served her notice of intention to amend in terms of
subrules 28(1) and (2). Surprisingly, given what subsequently
occurred, the respondent did not object to the proposed amendments,
and the applicant’s amended particulars of claim were
delivered
on 25 March 2021 (the quantum of her claim was also increased to
R2 390 000).
[7] On 1 April
2021 the respondent instead delivered a notice of exception
to the
amended particulars of claim (the ‘
April exception’
).
Instead of complying with rule 23(1), i.e. affording the applicant 15
days to remove those complaints which it maintained were
vague and
embarrassing, the respondent blithely alleged in the notice that:
‘
BE PLEASED TO TAKE
FURTHER NOTICE that the plaintiff, having been provided a period of
15 days to remove certain of the below causes
of complaint, has
failed to remedy certain of the causes of complaint raised in the
second defendant’s notice dated 11 February
2021.
Accordingly, the second defendant hereby delivers, in addition
[i.e.
to those directed at the failure to disclose a cause of action]
,
an exception on the basis of the particulars of claim being vague and
embarrassing.’
[8] Given that
the applicant did not raise this as a further irregular step,
I leave
it there. The April exception however raised, in identical terms,
seven of the complaints in the first (February 2021)
exception
despite the respondent having been aware, on its version, that the
amendments which the applicant intended to make to
her particulars of
claim would nonetheless fail to address a number of the causes of
complaint.
[2]
[9] The
respondent thereafter failed to apply to the registrar within 15
days
of delivery of the April exception to have it set down for hearing as
provided in rule 23(1). On 13 May 2021 the
applicant’s
attorney wrote to the respondent’s attorney pointing this out.
The letter read in relevant part as follows:
‘
According to our
calculations, your client has failed to comply with the time limits
prescribed by the rules within which to set
down its exception for
hearing.
In the circumstances your
client’s plea is now long overdue, and unless we receive it
within 7 calendar days, we will be delivering
a Notice of Bar, and
thereafter, will be applying for judgment by default.’
[10] On the last day of the given
deadline, i.e. 20 May 2021, the respondent’s attorney
replied, maintaining that the April exception necessarily had to be
dealt with before the respondent would be in a position to
plead. He
also informed the applicant’s attorney that the applicant was
at liberty to have the April exception enrolled for
hearing. He did
not however suggest that the respondent itself would, or should, take
any further steps in this regard.
[11] The respondent’s
attorney also took the view that its failure to enrol the April
exception within the 15 day period referred to in rule 23(1) did not
render it “
pro non scripto
”, but that ‘
as
a matter of extreme caution, we shall serve our client’s
exception again and cause same to be set down for argument as
soon as
practically possible’.
The respondent then proceeded to
re-deliver the April exception on 20 May 2021 (for convenience,
the ‘
May exception’
). On 21 May 2021 the
applicant delivered her notice of bar. It was the delivery of the May
exception that also resulted in
the applicant launching this
application.
[12] In her amended notice of
motion the applicant seeks an order in the following terms:
‘
1.
The second defendant’s exception that was delivered on 20 May
2021 is set aside
as an irregular step under rule 30(1).
2.
The plaintiff’s notice of bar that was delivered on 21 May
2021 is
declared to be a regular step.
3.
The second defendant will pay the costs of this application on the
scale as between
attorney-and-client.
4.
Further and/or alternative relief.’
[13] On 27 May 2021 the
respondent delivered a notice in terms of rule 30(2)(b) affording the
applicant the opportunity to remove the notice of bar as an irregular
step within 10 days, failing which it would apply to have
it set
aside. This application was not proceeded with and requires no
further mention.
Whether delivery of the May exception constitutes an irregular
step
[14] Previously, rule 23(1)
provided that, following delivery of an exception, the excipient
‘…
may set it down for hearing in terms of paragraph
(f) of subrule (5) of rule (6)…’.
Rule 6(5)(f) in
turn gave the excipient the opportunity, within 5 days of
delivery of the exception, to apply to the registrar
for the
allocation of a date for hearing.
[15] I intentionally use the word
“opportunity” since rule 6(5)(f)(iii) reads in
relevant
part as follows:
‘
(iii)
If the applicant fails so to apply within the appropriate period
aforesaid, the respondent
may do so immediately upon the expiry
thereof…’
[16] As presently worded, the
relevant part of rule 23(1) provides that:
‘
(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary to
sustain an action or defence, as the case may
be, the opposing party may, within the period allowed for any
subsequent pleading,
deliver an exception thereto and
may
apply to the registrar to set it down for hearing within 15 days
after the delivery of such exception
...’
[emphasis supplied]
[17] The reference to rule
6(5)(f) has thus been removed from rule 23(1), in particular that
portion which entitles the other party to enrol the exception if the
excipient fails to do so timeously. In contradistinction,
rule
6(5)(f) is retained by oblique reference in rule 23(2), which
pertains to applications to strike out.
[18] Rule 23(4) has however not
been amended and stipulates that:
‘
(4)
Wherever any exception is taken to any pleading… no plea,
replication or other pleading
over shall be necessary.’
[19] The applicant contends that
the effect of the amendment to rule 23(1) is that, if the
excipient
concerned fails to apply to the registrar within that 15 day
period, the exception lapses and the
moratorium
contained in
rule 23(4) falls away. The respondent’s re-delivery of the same
exception, way out of time, is therefore an irregular
step, and the
re-delivery itself cannot confer validity on – or put
differently, breathe life into – something which
has already
lapsed. Accordingly, so the argument goes, the applicant was
perfectly entitled to place the respondent under bar.
[20] On the other hand the
respondent submits that its failure to approach the registrar within
that 15 day period merely gave the applicant ‘
the privilege
of choosing the date for hearing’
by setting down the
exception, and nothing more. The respondent’s attorney, who
deposed to the answering affidavit, also
maintained that:
‘
[The failure to set the
matter down on application to the registrar] …
does
not, as the plaintiff’s attorney contends, nullify the
exception. However, to obviate the wasteful
[
sic
]
of incurring legal
costs and wasting time in fighting an application for condonation the
second defendant decided to simply re-serve
the exception…
which it is entitled to do. There is no rule or principle preventing
this.’
[21] The applicant’s
response is that such a construction is untenable, since its effect
would be that the action is stymied unless and until the exception is
adjudicated, and it cannot be expected of the other party
to set down
what it may consider to be an unmeritorious exception, thereby
incurring costs, purely in order to have the action
proceed. Moreover
it is argued that what the respondent ought to have done was to bring
a substantive application for condonation,
and explain its failure to
set down the April exception timeously.
[22] The respondent’s
retort is that if something has lapsed, as the applicant contends,
then no point would be served by applying for condonation since there
is nothing to revive.
[23] In my view there can be no
doubt that the May exception is an irregular step, which must
be set
aside, for a more fundamental reason. On both parties’
versions, it was not delivered ‘
within the period allowed
for filing any subsequent pleading’
in accordance with
rule 23(1). The amended particulars of claim were delivered on
25 March 2021. The exception had to
be delivered (bar an
accompanying application for condonation) within 20 days thereafter,
which is the time period allowed for
the delivery of a plea in terms
of rule 22(1), i.e. by 26 April 2021. Instead it was only
delivered on 20 May 2021.
[24] The ill-advised approach
adopted by the respondent’s attorney clearly flouted the
prescribed time period of 20 days and there is no procedural
mechanism upon which the respondent can now rely to cure this fatal
defect in circumstances where no application for condonation was
brought. However the parties’ respective arguments remain
relevant to the April exception.
Whether the April exception is still extant
[25] It is not apparent why the
Rules Board introduced the amendment to rule 23(1). I have
not been
able to find any authority subsequent to the amendment, or definitive
commentary on why it was introduced, and counsel
were unable to refer
me to any either.
[26] To my mind however a
procedural amendment to a rule regulating the conduct of proceedings
in the High Court cannot be interpreted in such a way as to interfere
with the long established approach of our courts to the nature
of an
exception for purposes of the rule. It is regarded as a pleading, not
an application, and not a notice either.
[27] In
Steve’s Wrought
Iron Works and Others v Nelson Mandela Metro
,
[3]
Goosen J summed it up as follows:
‘…
Rule 23
prescribes the form of the exception as a pleading. An exception is
not an application to which the provisions of rule 6
apply.’
[28] If an exception is
considered to be a pleading for purposes of rule 23, it follows that
it cannot simply lapse if no further steps are taken by the excipient
once it is delivered. Something more is required.
[29] This is supported by the use
of the word ‘
may’
and not ‘
must’
in rule 23(1) itself. If it was intended that an exception would
automatically lapse if the excipient failed to enrol it within
the
prescribed 15 day period, the drafter would no doubt have made this a
peremptory, and not a permissive, requirement, and would
also have
spelt out the consequence of a failure to do so, i.e. that the
exception would lapse.
[30] Although the cases make it
clear that an exception may be delivered in response to a notice
of
bar,
[4]
what happened in the present matter is that a notice of bar was
delivered
after
the respondent failed to take steps to enrol
the April exception and simply re-delivered it (in the form of the
May exception).
[31] In my view the applicant
could not have competently delivered a notice of bar since a
“pleading” had already been delivered. The failure by the
respondent to enrol the exception within the prescribed 15
day period
left the applicant with two options.
[32] The first was to apply to
the registrar to have it enrolled for hearing. I do not see
how the
deletion of the reference to rule 6(5)(f) in the currently worded
rule 23(1) prevents a party in the position of the applicant
from
doing so, given that she remains
dominus litis
in the action
itself. The position cannot be different merely because the exception
is taken to a plaintiff’s own pleading,
or its plea to a claim
in reconvention, as the case may be; and where a plaintiff is the
party excepting to a defendant’s
plea, then of course it would
be the plaintiff who would no doubt apply to have the exception
enrolled for hearing within the 15 day
period, since it would
wish to expedite the main litigation initiated at its own instance.
[33] The second option would be
to put the excipient to terms to enrol the exception, under
threat of
an application for an order striking it out as a whole, if the
excipient nonetheless persists in its failure to do so.
This would
address the applicant’s concern in the present matter that, in
order to move the litigation forward, she herself
would have to incur
unnecessary costs by enrolling the exception for hearing when she
considers it to be without merit.
[34] While there may be no
specific rule permitting such a procedure
[5]
– and this is probably a matter which should be considered by
the Rules Board – the High Courts nonetheless have the
inherent
power to protect and regulate their own process, taking into account
the interests of justice in terms of s 173 of
the Constitution.
[35] Having regard to the above
it is my conclusion that the relief sought by the applicant
in prayer
2 of her notice of motion, i.e. for the notice of bar delivered on
21 May 2021 to be declared a regular step, must
fail. The April
exception remains extant until it is struck out, set aside, dismissed
or upheld.
[36] According to the practice
note filed on behalf of the applicant for purposes of this hearing,
the respondent’s May exception was evidently set down on an
expedited basis with leave of the Judge President. On becoming
aware
of this, the applicant obtained the Judge President’s leave to
set down her rule 30 application for hearing on the
same date.
[37] I have already found that
the re-delivery of the May exception is an irregular step. It
is
accordingly not properly before me. However I am of the view that it
is clearly in the interests of justice to regard the April
exception
as one that I am nonetheless permitted to determine. The reasons are
as follows. First, the April exception is identical
to the May
exception. Second, full argument was heard on the merits of the
exception itself. Third, both parties clearly wish to
have a judgment
on the merits of the exception to avoid yet further delay. I thus
turn to deal with the April exception on this
basis.
Whether the April exception has merit
[38] Of the seven grounds of
complaint, the first and last were abandoned during argument.
However, for ease of reference, I will refer to the remaining grounds
as they appear in the exception.
[39] The second ground relates to
paragraphs 5, 7 and 9 of the amended particulars of claim
(“the
pleading”). In paragraph 5 the applicant pleads that ‘
at
all times material hereto…’
Witlouw acted within the
course and scope of his employment with the respondent. In paragraph
7 it is alleged that during April
2018 the applicant instituted a
criminal complaint against Witlouw, as a result of which she was
obliged to attend court on approximately
seven occasions, only to
have him plead guilty on 17 September 2019; and in paragraph 8
it is alleged that, as a consequence
of the assault as well
inter
alia
the criminal proceedings she suffered ‘
psychiatric
injuries’
.
[40] The respondent’s
ground of complaint is that, self-evidently, Witlouw could not
have
been acting in the course and scope of his employment in the criminal
proceedings. Accordingly, it is contended, the pleading
is vague and
embarrassing and/or contains insufficient averments to establish a
cause of action against the respondent.
[41] It is however plain from a
reading of the pleading as a whole that the words ‘
at all
material times hereto’
pertain to the applicant’s
cause of action, namely the alleged assault, and that her attendance
at the subsequent criminal
proceedings was one of the events that
followed from that assault. Put differently, absent the alleged
assault, no criminal prosecution
would have followed. To my mind, it
is contrived and overly formalistic to suggest otherwise.
[42] The third ground pertains to
paragraphs 9.4 and 9.6 of the pleading. Paragraph 9
commences
with the words ‘
[a]s a consequence of the aforegoing
psychiatric injuries, the plaintiff has endured and will continue to
endure the following:…’
. In paragraph 9.4 she
alleges that she has suffered a permanent loss of earning capacity,
has lost income, and will lose income
in the future; and in paragraph
9.6 that she will require an occupational therapy assessment to
assist her with a career reintegration
strategy to allow her to find
work in a manner which can circumvent the ‘
traumatic
triggers’
for her.
[43] The complaint is that
paragraphs 9.4 and 9.6 are irreconcilable and mutually destructive,
and the respondent is embarrassed in having to plead thereto. During
argument the respondent’s counsel submitted that, in
its view,
the alleged permanent loss of earning capacity necessarily means a
total loss thereof.
[44] However this is not the only
interpretation since one can have a permanent, but partial,
loss of
capacity. Moreover paragraph 10.3 sets out, in some detail, the basis
upon which the applicant alleges that she has suffered
a past and
future ‘
loss of earnings/loss of earning capacity’
,
and in paragraph 10.3.4.2 the allegation is made that her future loss
of earning capacity is ‘
currently estimated’
in
the sum of R1 million. It is accordingly my view that the
respondent has misunderstood the pleading, rather than that the
pleading is excipiable.
[45] The fourth ground is that
the applicant failed to plead the following in respect of Witlouw’s
employment with the respondent, namely: (a) his role and/or job
title; (b) the scope of his duties at the relevant time;
(c) whether or not Witlouw was furthering the respondent’s
interests at the relevant time(s); and/or (d) the precise
manner
in which Witlouw acted in the course and scope of his employment.
[46] Further complaints under
this ground are that the applicant failed to plead whether or
not
there was any legal duty on the respondent towards her and what such
duty entailed, and that absent from the pleading is any
allegation
that Witlouw acted with the intention to cause the applicant harm.
Accordingly, so the respondent asserts, the applicant
has failed to
plead facts sufficient to establish a cause of action against the
respondent, or a causal
nexus
between the respondent and
Witlouw’s conduct.
[47] The respondent fails to
appreciate the distinction between
facta probanda
(the facts
that must be proved) and
facta probantia
(the facts that would
prove those facts). Put differently, facts, and not evidence, are
what must be pleaded. As was held in
McKenzie v Farmers’
Co-Operative Meat Industries Limited
[6]
a ‘
cause of action’
constitutes:
‘…
every fact
which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to judgment of the
court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary to
be proved.’
[48] The complaints referred to
in paragraph [45] of this judgment as (a) – (d) are all
facta
probantia
on the pleading as it stands. For example, it is
pleaded that Witlouw conducted the interview in question while acting
in the course
and scope of his employment. Accordingly, logic
dictates that the scope of his duties at the time involved him
conducting the interview.
[49] The assertion that the
pleading is excipiable because the applicant failed to allege that
Witlouw acted with the intention to harm her during the alleged
assault is self-evidently preposterous.
[50] As far as the failure to
plead a legal duty on the part of the respondent is concerned,
it has
misunderstood the legal position. It is well established that an
employer is liable for damage occasioned by delicts committed
by an
employee in the course and scope of the employee’s
employment.
[7]
In Neethling et al:
Law of Delict
[8]
the position is summarised as follows:
‘
Vicarious liability
may in general terms be described as the strict liability of one
person for the delict of another. The former
is thus indirectly or
vicariously liable for the damage caused by the latter. This
liability applies where there is a particular
relationship between
two persons…
Where an employee (servant)
acting within the scope of his employment, commits a delict, his
employer (master) is fully liable for
the damage. Fault is not
required on the part of the employer, and therefore this is a form of
strict liability…’
[51] I deal with the fifth and
sixth grounds together. The fifth ground relates to paragraph
6 of
the pleading, where it is alleged that during Witlouw’s
disciplinary hearing held by the respondent after the alleged
assault, Witlouw subjected the applicant to ‘
gruelling
cross-examination’
, but that she has failed to plead facts
to demonstrate that this was wrongful or unlawful. Accordingly, it is
contended, the applicant
has failed to establish a cause of action
against the respondent, alternatively the pleading is vague and
embarrassing.
[52] The sixth ground is in
similar vein and pertains to paragraphs 8 and 9 of the pleading.
At
paragraph 8 the applicant alleges that as a consequence of the
alleged sexual assault perpetrated against her; the subsequent
disciplinary hearing; the criminal proceedings; and the impact that
all of these events have had upon her, she has suffered ‘
psychiatric
injuries’
and has been diagnosed with certain psychiatric
conditions. At paragraph 9, the applicant alleges that as a
consequence of those
injuries, she has endured and will continue to
endure certain ‘
conditions’
.
[53] The complaint is that the
applicant has not pleaded any allegations to demonstrate that
the
disciplinary hearing and criminal proceedings were wrongful or
unlawful. Accordingly, so it is asserted, her cause of action
in
relation to the disciplinary hearing and criminal proceedings is bad
in law. Moreover, the respondent contends that the applicant
has
failed to aver facts to establish a causal
nexus
between it
and the disciplinary hearing and criminal proceedings ‘
or
any basis whatsoever as to why the second defendant is vicariously
liable for the disciplinary hearing and criminal proceedings’.
[54] The short answer to all of
this is what I have found in relation to the second ground
of
complaint, and I will not repeat it.
Conclusion
[55] The applicant has been
substantially successful in both matters before me (save for the
relief sought to declare her notice of bar a regular step) and costs
should thus follow the result.
[56] As far as the scale thereof
is concerned, and while it appears clear that the respondent
has been
obstructive, even going so far as to threaten the applicant’s
attorney with an entirely unwarranted
de bonis propriis
costs
order, I am nonetheless of the view that an award against the
respondent on the attorney and client scale, as sought by the
applicant, is not appropriate.
[57] This is because the issues
which required determination in relation to the currently worded
rule
23(1) were not simple, and the applicant herself took an irregular
step by delivering the notice of bar.
[58] Because the respondent did
not pursue its rule 30 remedies in that regard, the notice
of bar
stands until set aside. If I do not invoke the court’s inherent
power under s 173 of the Constitution, the procedural
muddle
which has unfolded in this litigation thus far will in all
probability be perpetuated. This cannot be in either party’s
interest, and there can also be no question of prejudice to either if
the notice of bar is set aside by this court.
[59]
The following order is
made:
1.
The exception delivered by the
respondent (second defendant) on 20 May 2021 is set aside as an
irregular step in terms of uniform
rule 30;
2.
The notice of bar delivered by
the applicant (plaintiff) on 21 May 2021 is set aside;
3.
The exception delivered by the
respondent (second defendant) on 1 April 2021 is dismissed;
4.
The respondent (second
defendant) shall deliver its plea to the amended particulars of claim
of the applicant (plaintiff) within
20 (twenty) court days from
date of this order, failing which the applicant (plaintiff) may
deliver a notice of bar in accordance
with uniform rule 26; and
5.
The respondent (second
defendant) shall pay the costs of both the rule 30 application
and the exception (of 1 April 2021) on
the scale as between party and
party as taxed or agreed, including any reserved costs orders.
J I CLOETE
[1]
Rule 23(1) was substituted by GN R1343 of 18 October 2019,
with commencement date 22 November 2019.
[2]
It is trite that save in exceptional cases an amendment
ought not to be allowed where its introduction into the
pleading
would render the pleading excipiable, and by parity of reasoning,
the same should apply in those instances where the
remaining causes
of complaint are not addressed in the notice of intention to amend.
[3]
2020 (3) SA 535
(ECP) at para [21]. See also the
authorities cited therein.
[4]
See fn 3 above.
[5]
An analogous procedure would be that contained, for
example, in rule 35(7) pertaining to discovery, which confers
upon a
party the right to approach a court by way of an application to
compel and, failing compliance with the Order, to ask
the court to
dismiss the claim or strike out the defence.
[6]
1922 AD 16
at 23, consistently applied ever since.
[7]
See
inter alia
K v Minister of Safety and
Security
2005 (3) SA 179
(SCA);
Loureiro and Others v iMvula
Quality Protection (Pty) Ltd
2014 (3) SA 394 (CC).
[8]
7ed at 389-390.