About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 444
|
|
PA Dippenaar Investments CC v MDH obo JDH In re: MDH obo JDH v PA Dippenaar Investments CC and Others (46577/2018) [2020] ZAGPJHC 444 (13 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No. 46577/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:
13 August 2020
In
the Exception between:
PA
DIPPENAAR INVESTMENTS CC
Excipient
and
M[....]
D[....] H[....] obo J[....] D[....] H[....]
Respondent
In
re:
The
action between:
M[....]
D[....] H[....] obo J[....] D[....] H[....]
Plaintiff
and
PA
DIPPENAAR INVESTMENTS CC
1
st
Defendant
DISA
HARDWARE DISTRIBUTORS (PTY) LTD
2
nd
Defendant
ALOE
PLUMBING & HARDWARE SUPPLIES CC
3
rd
Defendant
JUDGMENT
PILLAY
AJ
1.
This argument on exception was before me on
31 October 2019. A Rule 33(4) application was removed from the roll
on the same day
with the Plaintiff to pay the wasted costs. Judgment
was reserved on the exception. This judgment deals with the
exception.
2.
The Plaintiff claimed for damages in delict
(aquilian action) as well as in terms of the Consumer Protection Act,
68 of 2008 (“
CPA
”).
The claim is founded on alleged injuries suffered by the Plaintiff’s
minor son arising from clinical burns.
3.
The First Defendant is the excipient
(“
Dippenaar
”)
in these proceedings. The Second Defendant (“
Disa
”)
while it raised an exception to the particulars of claim (“
POC
”),
did not appear. I deal only with Dippenaar in this judgment.
4.
The Plaintiff attempted to amend its POC
twice. These attempts were opposed by Dippenaar. The Plaintiff has
taken no further steps
to amend the POC.
Dippenaar’s
general case
5.
Dippenaar raises the following:
5.1
The POC does not disclose a cause of action
in respect of the acquilian claim in that it lacks essential
averments to sustain a
cause of action in delict based on an
omission;
5.2
In respect of the statutory claim, it is
incompetent in that it lacks any allegation to establish a vital
jurisdictional fact, namely
that the Plaintiff has exhausted his
remedies provided for in the CPA;
5.3
The POC is vague and embarrassing in
several respects;
5.4
The POC offends against the provisions of
Rule 18(10).
The
Notices
6.
The Plaintiff claims for damages of R27 500
000.00 against Dippenaar,
alternatively
Disa
,
alternatively
Aloe jointly and
severally. There are two claims. The Plaintiff titled the first claim
“
Plaintiff’s claim based on
common law negligence
”. It deals
with this at paragraphs 10 to 13 of the POC.
7.
It titles its second claim “
Plaintiff’s
claim based on the
Consumer Protection Act, 68 of 2008
”.
This is dealt with seemingly at paragraphs 14 to 17.
8.
Apparent from the POC, the claims are not
formulated in the alternative.
9.
Dippenaar filed Notices to remove causes of
complaint:
9.1
Due to the POC offending against the
provisions of
Rule 18(10)
–
Rule 30(2)(b)
; and
1.5
cm; margin-bottom: 0cm; line-height: 200%">
9.2
In terms of
Rule 23(1).
The
Rule 23(1)
notice was for POC being vague and embarrassing and that it did not
disclose a cause of action
10.
Dippenaar claims that the POC lacks
particularity in that the Plaintiff fails to set out its alleged
damages in a manner that will
enable Dippenaar reasonably to assess
the quantum thereof.
11.
It further contends that the POC offends
against
Rule 18(10)
and lacks particularity in that the Plaintiff has
to :
11.1
specify his date of birth;
11.2
specify the nature and extent of the
injuries;
11.3
Specify the nature, effects and duration of
the disability alleged to give rise to the damages claimed for
personal injuries;
11.4
The Plaintiff, as far as is practical has
failed to state separately what amount, if any is claimed for:
(i)
Medical costs and hospital and other
similar expenses and how these costs and expenses are made up;
(ii)
Pain and suffering, stating whether the
temporary or permanent and which injuries caused it;
(iii)
Disability, stating whether the disability
concerned is temporary or permanent in respect of the earning of
income and the enjoyment
of amenities of life; and
(iv)
Disfigurement with a full description
thereof and stating whether it is temporary or permanent.
12.
Dippenaar went on that it is unfairly,
unjustly and substantially prejudiced in determining what case it has
to meet, and to present
its plea.
13.
Dippenaar further excepts to the POC on the
grounds that it is vague and embarrassing in that:
13.1
The Plaintiff gave no particularity as to
the nature of the drain cleaner which the Plaintiff referred to as
“
the product
”,
save to plead that it was composed of sulphuric acid of a very high
concentration of approximately 90% sulphuric acid.
This suggested
that the product is probably a liquid similar to sulphuric acid;
13.2
At the same time in paragraph 7 of the POC
the Plaintiff pleaded that the product was manufactured by Dippenaar,
and the product
was made available to the public by displaying same
on an easily accessible shelf in the hardware shop. The Plaintiff
went on that
“
considering the
dangerous nature of the product, they failed to attach adequate
warning labels on the product
”.
13.3
This in contradiction suggested that the
product is ostensibly not a liquid, most probably a solid object with
some or other kind
capable of being manufactured, displayed on a
shelf and having labels attached to it;
13.4
Dippenaar in turn pleaded that the POC
lacked particularity as to the product to the extent that it amounts
to vagueness in that
it is inconsistent to such an extent that it
amounts to a contradiction.
14.
In paragraph 7 of the POC the Plaintiff
pleaded that the product was manufactured by Dippenaar, advertised
and presented
via
catalogues (amongst other means) and distributed by Disa and Aloe.
Dippenaar claimed that this was opened to two meanings:
14.1
That Dippenaar advertised and presented the
product via catalogues to Disa who then distributed to Aloe; or
14.2
Disa advertised it and presented the
product via catalogues and distributed it to Aloe.
15.
In paragraph 10 read with paragraph 10.2 of
the POC the Plaintiff pleads that the minor child’s injuries
were caused when
the nozzle of the bottle of the product fell out
during use, and the subsequent injuries were solely caused by the
First Defendant
in that they manufactured a product fitted with a
very small nozzle which allows only a very small amount of the
product to came
out. The Plaintiff pleads no further particularity in
respect of the reference to “
a
product
”, save to plead that the
design constituted a very serious designed flaw in its delivery
system, which is likely to cause
harm as the user of the product is
effectively encouraged to squeeze the product bottle to use the
product, which design has the
potential to fail catastrophically.
16.
The Plaintiff pleads no further
particularity as to the nature and extent of the “
design
flaw
”, the “
potential
to fail catastrophically
” and how
it is “
likely to cause harm
”.
Those details are left to the imagination and speculation of the
Defendants. Dippenaar hence went on that it is unclear
as to whether
Dippenaar is also the manufacturer of either the bottle in which the
drain cleaner is packaged or the “
nozzle
”
or both.
17.
In paragraph 10 of the POC the Plaintiff
pleads that the incident and subsequent injuries were caused solely
by the negligence of
Dippenaar,
alternatively
the agent and/or independent contractors of the Defendant,
alternatively
executive
members of the Defendant who were negligent. The Plaintiff fails to
plead further particularity in respect of who the
agents and/or
independent contractors and/or executive members of the Defendant is.
18.
The Plaintiff also failed to provide
particulars as to what is meant by reference to “
the
Defendant
”. It is not clear
whether this is a reference to Dippenaar, Disa, Aloe, only one of
them and if so, which one. It was also
not clear whether the
Plaintiff intended to plead that Disa and Aloe or any of them were
the agents and/or independent brokers
of Dippenaar.
19.
The reference to “
agents
”
and “
independent contractors
”
is ostensibly an attempt to allege vicarious liability. It is not
clear the basis for which vicarious liability is ostensibly
alleged.
Also for that matter why any of the Defendants is an agent and/or
independent contractor. For this reason, Dippenaar asserts
that it is
not possible to determine for the purpose of pleading who is referred
to and what the relationship, legal or otherwise
existed between any
of them and Dippenaar, or any of the other Defendants.
20.
Dippenaar goes further that the Applicant
at paragraph 10.4 of the POC pleads that “
they
failed to take measures to avoid the incident”.
The Plaintiff fails to plead any particularity as to the nature and
extent of any “
measures
”
that must reasonably be expected to have been taken to avoid the
incident.
21.
The Plaintiff at paragraph 10 of the POC
pleads that the incident and subsequent injuries was caused solely by
the negligence of
Dippenaar,
alternatively
the agents and/or independent contractors of the “
Defendant
”,
alternatively
the executive members of the “
Defendant
”
who were negligent.
22.
In paragraph of the POC the Plaintiff
pleads that the incident occurred due to the sole negligence of
Dippenaar and/or its agents,
independent contractors or executive
members. The Plaintiff did not refer to the agents, independent
contractors and executive
members in the alternative. For this
reason, paragraphs 10 and 11 of the POC are a contradiction. The
factual versions on such
allegations are incompatible and mutually
exclusive. In addition, reference is made to “
the
Defendant
” without specifying
which Defendant the Plaintiff is referring to.
23.
The Plaintiff fails to plead in
particularity as to how the drain cleaner was used and how the
accident/incident occurred.
24.
In paragraphs 2, 3 and 4 of the POC the
Plaintiff pleads that Dippenaar would sometimes be referred to as
“
the manufacturer
”.
The same applied to Disa, who would sometimes be referred to as “
the
distributor
”, and the Third
Respondent who would sometimes be referred to as “
the
retailer
”. This however was in
conflict with paragraph 7 of the POC.
25.
The Plaintiffs purportedly instituted
claims based on two different causes of action, being:
(i)
The acquilian action; and
(ii)
An alleged transgression of the CPA. The
claims are not pleaded in the alternative, in particular not against
Dippenaar. The claims
are exclusive of one another.
26.
In paragraph 14 of the POC the Plaintiff
fails to specify which definition or definitions referred to therein
he claims to be applicable
to which of the Defendants, and in
particular, Dippenaar in respect of the product, it be the sulphuric
acid drain cleaner.
27.
In paragraph 15 read with paragraph 15.1 of
the POC the Plaintiff pleads that the Defendants “
jointly
and severally”
failed to comply
with the provisions of the CPA by manufacturing a defective product.
This is in conflict with any allegation that
may be construed from
the POC to mean that Dippenaar was the sole manufacturer of the drain
cleaner to the exclusion of any of
the other Defendants.
28.
Dippenaar claims that it is unfairly,
unjustly and substantially prejudiced in determining which case it
has to meet, and to present
its defence in its plea.
The
pleaded exception on the duty of care by omission
29.
Dippenaar claims that the POC is vague and
embarrassing.
30.
Insofar as the aquilian claim is concerned,
paragraph 11 of the POC is essentially the breach of a duty of care
due to omissions.
In order to establish aquilian liability a
Plaintiff whose claim is based on a breach of a duty by omission has
to make averments
as to:
30.1
The nature and extent of the duty of care;
30.2
Who the duty of care is owed to;
30.3
The origin/source of the duty of care.
31.
The Plaintiff failed to make the
necessary averments as to:
31.1
The nature and extent of any alleged duty
of care of Dippenaar;
31.2
Whom the duty of care is owed to;
31.3
The original source of Dippenaar’s
alleged duty of care;
31.4
Wongfulness.
32.
Insofar as the statutory claim is
concerned, the Plaintiff’s POC lacks the necessary averments to
sustain any claim in respect
of the CPA. The CPA provides for
adjudication of disputes by the National Consumer Tribunal, an Ombud,
a Consumer Court, an alternative
dispute resolution agent or the
National Consumer Commissioner. It has not been alleged that the
Plaintiff exhausted his internal
remedies in respect of these
tribunals, and the statutory claim seems bad in law.
33.
The statutory claim purports to in essence
be based upon the claim that the product suffered from a designed
flaw in its delivery
system, which rendered the product defective.
However, there is no allegation that Dippenaar designed the product
and/or was in
any way responsible for the purportedly alleged
defected design. No allegation made causally links Dippenaar to the
alleged design
flaw. There is also, insofar as it is the intention to
base the claim upon a flaw in the actual manufacturing of the bottle,
no
allegation to this end, not as to the extent and nature of the
flaw in the manufacturing process.
ANALYSIS
The
pleaded exception on the statutory claim
34.
The Plaintiff seeks to rely on an
infringement of
section 54(1)(c)
and
55
(2) of the CPA in paragraph 15
of the POC.
35.
Section 69
of the CPA provides that a
person may approach the Court if all other available remedies have
been exhausted. The CPA in turn has
provided various remedies
including for example the Consumer Tribunal and Ombudsman.
36.
In
Chirwa v
Transnet Ltd & Others 2008(4) SA 367 (CC)
the Constitutional Court held that where a specialized framework has
been created for the resolution of disputes, the parties must
pursue
their claims primarily through such mechanisms.
37.
In
Joroy
4440 CC v Potgieter 2016(3) SA 465 (FB)
it was held the wording of
section 69(d)
is clear and unambiguous.
The consumer may approach the Court
if
all the avenues of redress provided had been exhausted. This being
so, the CPA creates a necessary jurisdictional fact that must
exist
before this Court may entertain the matter.
38.
The CPA creates a mechanism for resolution
of disputes. This is not in dispute. It is also common cause that the
Plaintiff has not
exhausted all remedies available to it. This being
so, this Court does not have jurisdiction to entertain the
Plaintiff’s
statutory claim.
39.
The Plaintiff’s stance is that
jurisdiction can be found to exist in due course. This is correct. In
my view however the statutory
claim cannot be initiated before the
jurisdictional facts for same exist. To do so would render the action
premature.
40.
The Plaintiff cannot make the essential
factual allegation to establish jurisdiction and hence a cause of
action. This Court does
not have jurisdiction to entertain the
Plaintiff’s statutory claim as currently initiated.
41.
Dippenaar’s exception on this score
must succeed. Insofar as the statutory claim is concerned, it cannot
be remedied by an
amendment to the pleadings. The exception to the
statutory is therefore upheld. The statutory claim is dismissed.
The
pleaded exception on the acquilian claim
Duty
of care by omission
42.
The Plaintiff’s claim is based on an
omission to act in terms of a duty of care. Dippenaar contends that
the POC is excipiable
because it does not contain an allegation as to
wrongfulness, the nature and extent of the legal duty, to whom it is
owed and the
source/origin of the duty.
43.
Where there is a claim for liability due to
an omission and through economic loss, wrongfulness is not presumed.
It depends on the
existence of a legal duty. The Court must therefore
determine whether the duty exists. The Plaintiff had to set out
criteria for
the Court to find that there is a legal duty. The legal
duty is a separate enquiry from that of negligence and causation.
44.
The POC has failed to set out any
allegation as to the nature and extent of the alleged legal duty, if
it does indeed exist, the
source and origin of same, or to whom it is
owed. There is also no allegation that there was a breach of a legal
duty that was
wrongful.
45.
A Plaintiff is required to do more than
merely describe the nature of a legal duty. The basis for the claim
must also be provided.
The basis for the duty must be averred.
Paragraphs 12 does not lend to the reading contended for by the
Plaintiff.
46.
I agree with Dippenaar that no cause of
action is made in delict based on duty of care by omission. The
Plaintiff has failed to
plead allegations as to wrongfulness, the
nature and extent of the legal duty, to whom it is owned and the
source and origin of
same.
47.
This exception must therefore be upheld.
The Plaintiff will be granted 15 days to amend its POC insofar as the
acquilian claim is
concerned.
Vague
and embarrassing: non-compliance with
rule 18(10)
0c
m; line-height: 200%">
48.
The POC pleads both an acquilian and
statutory claims. The statutory claim is bad in law. I therefore need
not concern myself with
the failure to plead the claims in the
alternative.
49.
The POC refers to
inter
alia
agents and/or independent
contractors of “
the Defendant
”.
Dippenaar Investments is correct in its assertion that it cannot
assess who the Plaintiff refers to. The Plaintiff has
in various
paragraphs referred to the Defendants in a manner that makes their
characterization unclear. The Plaintiff does not
distinguish between
the three Defendants and the role each plays in its claim. For
instance, it is not clear whether Dippenaar
is the producer,
manufacturer, distributor and/or all of the above. This is vague and
embarrassing and strikes to the root of the
cause of action.
Dippenaar is unable to meaningfully respond to same.
50.
This will invariably prejudice Dippenaar in
determining the case it has to meet and how to plead its defence. The
POC to this extent
is ambiguous and strikes at the root of the causes
of action. It is vague and embarrassing. This exception is upheld.
51.
The Plaintiff’s claim relates to the
failure of the “
Product
”.
It however does not set out what this “
Product
”
is. At one stage it appears to be a liquid product that comprises
mostly of sulphuric acid. At another stage the product
appears to be
a bottle or container. In this regard the claim seems to be that the
“
Product
”
is possibly a bottle/container which has a nozzle. The Plaintiff
further suggests that the nozzle (opposed to the liquid
Product)
constitutes a serious design flaw in its delivery system.
52.
These are contradictory and severely
prejudices Dippenaar in its ability to respond to the POC. It strikes
at the root of the cause
of action. I am in agreement with Dippenaar
that this renders the POC vague and embarrassing. This exception must
be upheld. The
Plaintiff will be provided with time to amend its POC
if it desires.
53.
Rule 18(10)
sets out the particularity that
must be provided in a claim for personal damages. The Plaintiff
provides estimates. This does not
however prejudice Dippenaar to an
extent that it cannot plead. While it would be prudent for the
Plaintiff to remedy this, this
exception is sustainable to the degree
that is required. This exception is dismissed.
54.
The Plaintiff has not provided
particularity such as the minor child’s date of birth, the
nature and extent of injuries, the
nature and effects of the alleged
disability. He will be given the opportunity to do so if he so
desires.
Costs
55.
Dippenaar has been successful on all but
one ground. There is no reason that it should be deprived of costs.
ORDER
56.
In the circumstances I make an order in the
following terms:
(a)
The exception in respect of the statutory
claim is upheld. The statutory claim is dismissed.
(b)
The exceptions in respect of the delictual
claims are upheld. The Plaintiff is given 15 court days to deliver
amended particulars
of claim if he so desires.
(c)
The Plaintiff is to pay the First
Defendant’s costs.
_______________
L
PILLAY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing: 31 October 2019
Date
of judgment: 13 August 2020
Attorneys
for the Excipient:
Dippenaar-Nieuwoudt
Spector Attorneys
Per:
Zuzette Dippenaar-Nieuwoudt
Email:
dnsattorneys@gmail.com
Attorneys
for the Respondent:
Dyason
Attorneys
Per:
Cindy Horn
Email:
cindy@dyason.co.za