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[2013] ZAECPEHC 49
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Good Year SA (Pty) Ltd v Weitz (3919/2012) [2013] ZAECPEHC 49; (2014) 35 ILJ 441 (ECP) (17 October 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
Case No.:
3919/2012
Date
Heard: 26 September 2013
Date
Delivered: 17 October 2013
In the
matter between:
GOODYEAR
SA (PTY) LIMITED
.............................................
Excipient/First
Defendant
and
RAYMOND
STANLEY NEVELING WEITZ
......................................
Respondent/Plaintiff
and
DANIE
GEORGE HOFFMAN
..............................................................
Second
Defendant
JONAS
ZIPHILELE MAPAPU
.
...............................................................
Third
Defendant
JUDGMENT
EKSTEEN J:
[1] The plaintiff instituted action against the defendants herein in
which he claimed damages in the sum of R1 923 272,60
for
loss of earning capacity. The plaintiff was previously employed by
the first defendant. He alleges that malicious disciplinary
proceedings were instituted against him without any reasonable or
probable cause and that these events had such an impact upon
him that
they caused him to develop major depression and post traumatic stress
disorder. This emotional damage, it is alleged,
has rendered him
unemployable with the consequent loss of earning capacity.
[2] The first defendant has taken exception to the particulars of the
plaintiff’s claim on the basis that it is contended
that they
lack averments necessary to sustain a cause of action. I shall refer
to the parties herein as the plaintiff and the first
defendant
respectively.
[3] The basis of the exception as set out in the first defendant’s
notice of exception is:
“
2. The
Plaintiff’s claim is for patrimonial loss. Patrimonial loss is
claimable by way of delictual action i.e. an action
founded upon the
actio
legis aquilia
.
3. …
4. The Plaintiff has failed to
make the requisite allegations to found a delictual claim. In
particular he has not made sufficient
allegations in respect of the
First Defendant to establish:
4.1. The existence of a duty of
care or a wrongful act by the First Defendant.
4.2. An allegation of fault on
the part of the First Defendant in the form of intention or
negligence.
4.3. The Plaintiff has failed to
make sufficient allegations to establish legal or factual causation
in respect of the claim.
5. In the premises, the
Plaintiff’s Particulars of Claim are excipiable as they do not
disclose a cause of action.”
[4] The material allegations contained in the plaintiff’s
Particulars of Claim upon which the plaintiff relies and which
are
relevant to the present enquiry are that:
4.1. The plaintiff was employed by the first defendant from 1986
until he was medically boarded on 31 October 2011.
4.2. The plaintiff was suspended by the first defendant on 28 June
2010 when a charge of racism was levelled against him.
4.3. On 8 July 2010 the plaintiff was summoned by the first defendant
to attend a disciplinary enquiry in order to answer certain
specified
complainants which are set out in the Particulars of Claim.
4.4. The disciplinary proceedings were referred to arbitration and an
enquiry duly held.
4.5. At the commencement of these proceedings two of the charges of
which the plaintiff had initially been notified were withdrawn
by the
first defendant and on the remaining charges the arbitrator found the
plaintiff not guilty.
4.6. The complaints underlying the allegations set out in the charges
were lodged with the first defendant by the second and third
defendants and were without reasonable and probable cause and
motivated by malice, with the result that there was no reasonable
prospect of any of these false and malicious charges being proved.
4.7. The first defendant acted upon the aforesaid false and malicious
complaints without properly investigating them, satisfying
itself
that the complaints were false and malicious and without merit, and
proceeded to bring the charges against the plaintiff
without
reasonable and probable cause and with malice.
4.8. The first defendant could have had no reasonable belief in the
truth of the complaints lodged by the second and third defendants.
4.9. As a result of the charges brought against the plaintiff and his
suspension from employment, the plaintiff suffered emotional
damage
and developed major depression and post-traumatic stress disorder
resulting in him being unable to continue with his employment.
4.10. As a result of the emotional distress, major depression and
post-traumatic stress disorder, the plaintiff was medically boarded
from his employment with the first defendant and has been rendered
unemployable.
4.11. In the premises, the plaintiff suffered loss of income, as a
result of the unlawful, false and malicious conduct on the part
of
the defendants, in the amount of R1 923 272,60.
[5] Before I turn my attention to the specific grounds of exception,
the Particulars of Claim call for comment. Mr
Redding
,
on behalf of the first defendant, advised me at the outset that the
defendant had initially had difficulty in identifying the
cause of
action which the plaintiff intended to advance, whether it was the
actio iniuriarum
or the
actio legis aquiliae.
Mr
Scott
,
who argued the exception on behalf of the plaintiff, acknowledged
that it is now settled law that a claim for special damages
is not
available under the
actio iniuriarum
but only under the
actio
legis aquiliae
. He relied only on the
actio legis aquiliae
and
disavowed any intention to rely on the
actio iniuriarum.
The
averments made in the Particulars of Claim, however, appear,
prima
facie
, to be directed at a claim for malicious proceedings under
the
actio iniuriarum
, hence the confusion.
[6] The Particulars of Claim lack both clarity and conciseness and
the draftsman thereof appears to have had scant regard to the
provisions of Rule 18(4) of the Uniform Rules of Court which requires
of the pleader to set out a clear and concise statement of
the
material facts upon which he relies. The purpose, after all, is to
define the issues so as to enable the other side to know
what the
case is which it has to meet. Pleadings are required to be lucid and
logical and to be set out in an intelligible form
so that the cause
of action appears clearly from the factual allegations made. (Compare
Trope v South African Reserve Bank and Another
1992 (3)
SA 208
(T) at 210H.)
[7] What is to be pleaded are facts, not evidence, and only the
material facts should be pleaded. (Compare
Moaki v Reckitt and
Colman (Africa) Ltd and Another
1968 (3) SA 98
(A) at
102A-B.) The material facts are the
facta probanda
(the facts
which are required to be proved in order to succeed in the cause of
action) and not the
facta
probantia
(the facts which
would serve to prove the
facta probanda)
. (Compare
Nasionale
Aartappel Korporasie Beperk v Price Waterhouse Coopers ING
en
andere
2001 (2) SA 790
(T) at 797G-I and 798C-E;
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 903A-B;
and
Makgae v Sentraboer (Koöperatief) Bpk
1981 (4)
SA 239
(T) at 245D-E.) In the present instance approximately two
pages of the Particulars of Claim are devoted to setting out
conclusions
reached by the arbitrator at the disciplinary arbitration
in the process of her reasoning leading up to his ultimate finding
that
the plaintiff was not guilty. This clearly constitutes evidence
and has no place in the pleadings. Moreover, the entire award of
the
arbitrator, running to some 26 pages has been incorporated into the
Particulars of Claim. This, I think, constitutes an abuse
of the
process and should be avoided.
[8] The present exception, however, proceeds on the basis that the
Particulars of Claim lack averments which are necessary to sustain
a
cause of action. The exception must be considered on this basis
alone. Notwithstanding the criticisms which I have set out herein,
provided facts are alleged in the pleading which justifies the relief
sought in accordance with the principles of law, a pleading
will
disclose a cause of action without the particular delict being
identified by name. (Compare
Minister of Finance and Others v
EBN Trading (Pty) Ltd
1998 (2) SA 319
(N) at 324B-D.) In
order to succeed in a claim under the
actio legis aquiliae
the
plaintiff is required to allege and prove that the defendants act or
omission was:
1.1 unlawful;
1.2 culpable (in the form of intention of negligence);
1.3 the factual and legal cause of the loss; and
1.4 the cause of patrimonial loss.
(Compare
Sea Harvest Corporation (Pty) Ltd and Another v Duncan
Dock Cold Storage (Pty) Ltd
and Another
2000
(1) SA 827
(SCA) at para [19].)
[9] The particulars of the plaintiff’s claim appear to set out
two distinct causes of action. The first is founded upon the
vicarious liability of the first defendant for the conduct of the
second and third defendants in making false complaints (paragraphs
11
and 12 of the Particulars of Claim.) The second relates to the
conduct or omission on the part of the first defendant itself
(paragraph 13 of the Particulars of Claim.) Whilst the notice of
exception raises an exception against the Particulars of Claim
as a
whole, Mr
Redding
, confined his argument before me to
the second cause of action, namely the conduct or omission of the
first defendant. He contended
that paragraph 13 of the Particulars of
Claim were self-contained and amounts in itself to a separate cause
of action. Mr
Scott
did not argue the contrary. I think
that this is correct. (See
Lampert-Zakiewicz v Marine &
Trade Insurance Co Ltd
1975 (4) SA 597
(C) at 599G-H and
Barclays National Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553F.)
Wrongfulness (or unlawfulness)
[10] Paragraph 13 of the Particulars of Claim is formulated as
follows:
“
13.
The First Defendant, in acting upon the aforesaid false and malicious
complaints without properly investigating same, and satisfying
itself
that the complaints were false and malicious, and without merit,
brought these charges against the Plaintiff without reasonable
and
probable cause, and with malice, and could have had no reasonable
belief in the truth of the complaints lodged by the Second
and Third
Defendants against the Plaintiff.”
[11] In argument before me there was some debate at the Bar as to
whether,
ex facie
the pleadings, the plaintiff intended to
rely upon an omission on the part of the first defendant in failing
to investigate the
complaints lodged, or whether it intended to rely
upon a positive act in bringing false and malicious charges against
the plaintiff.
The significance of this debate is to be found therein
that in law, a positive act (coupled with negligence or intent) which
causes
physical harm to a person or property is considered to be
prima facie
unlawful (see
Minister of Safety and
Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 441E-F
para [12]). By contrast, where reliance is placed upon an omission,
such omission is usually considered to be lawful.
(See
BOE Bank
Ltd v Ries
2002 (2) SA 39
(SCA) at 46G-H.)
[12] The Particulars of Claim in this regard are not a model of
clarity and I have set out my views in that regard earlier herein.
At
the exception stage, however, the first defendant is required to
persuade the court that upon every interpretation which the
Particulars of Claim can reasonably bear, no cause of action is
disclosed. (See
Pete’s Warehousing and Sales CC v Bowsink
Investments CC
2000 (3) SA 833
(E) at 839 para [14];
First
National Bank of Southern African Ltd v Perry NO
and
Others
2001 (3) SA 960
(SCA) at 965D; and
Vermeulen v
Goose Valley Investments (Pty) Ltd
2001 (3) SA 986
(SCA) at
997B.) On a consideration of the formulation of paragraph 13 of the
Particulars of Claim I think, at best for the first
defendant, the
paragraph is reasonably open to the interpretation that reliance is
placed on the positive act of the first defendant
in bringing the
charges against the plaintiff. The exception must be considered on
this basis.
[13] It has been averred that the institution of these disciplinary
proceedings caused the plaintiff’s condition (psychological
injury) and the act is accordingly
prima facie
wrongful. This
ought really to be the end of this debate.
[14] Accepting, however, that the plaintiff has placed reliance on a
positive act of the first defendant in bringing the said charges
against the him, Mr
Redding
argues that on the
allegations made in the Particulars of Claim in the present matter,
there is no allegation which could render
the conduct of the first
defendant unlawful or wrongful. The argument is development in the
heads of argument filed on behalf of
the first defendant. It proceeds
from the premise that “South African law does not extend the
scope of the aquilian action
to new situations unless there are
positive policy considerations which favour such an extension”.
(See Grosskopf AJA in
Lillicrap, Wassenaar & Partners v
Pilkington Brothers (SA)(Pty) Ltd
1985 (1) SA 475
(A) at 504G
and
Trustees,
for the time being of Two Oceans
Aquarium Trust v Kantey and Templer (Pty) Ltd
2006 (3) SA 138
(SCA) at 147 para [20].) The assessment of these policy
considerations, it is argued, must be “not an intuitive
reaction
to a collection of arbitrary factors but rather a balancing
against one another of identifiable norms”. (See
Van
Duivenboden
supra
at 446 para [21]; and
Trustees
,
Two Oceans Aquarium Trust
supra
at p. 145D.)
These policy considerations include the reluctance of South African
law to extend cases of pure economic loss and take
into account the
reasonableness of imposing liability in such circumstances on the
defendant (see
Trustees, Two Oceans Aquarium Trust
supra
at para [11]) and the availability of other remedies for
the claimant (see
Knop v Johannesburg City Council
1995
(2) SA 1
(A) at 33A-E).
[15] The reaction of the first defendant to the complaints lodged by
the second and third defendants, the suspension of the plaintiff
from
work and the conduct of a disciplinary enquiry are, so the argument
goes, all
prima facie
lawful and precisely what the law
requires of an employer who is faced with complaints against an
employee. On this basis it is
argued that the defendant’s
conduct was anything but unlawful and that there is no obligation
upon an employer to conduct
an investigation prior to a disciplinary
enquiry as the disciplinary proceedings are themselves an enquiry.
Moreover, in the context
of the South African Constitution founded
upon values of human dignity, complaints of racism in the workplace
must be considered
as serious and should be subjected to an enquiry.
[16] I do not think that the argument can succeed for two reasons.
Firstly, as set out above, a positive act which causes physical
harm
(or psychological harm) to a person is
prima facie
unlawful.
In dealing with unlawfulness in
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) Harms JA stated at para [13] at p. 468:
“
When
dealing with the negligent causation of pure economic loss it is well
to remember that the act or omission is not
prima
facie
wrongful ('unlawful' is the synonym and is less of a euphemism) and
that more is needed. Policy considerations must dictate
that
the plaintiff should be entitled to be recompensed by the
defendant for the loss suffered (and not the converse as Goldstone
J
once implied unless it is a case of
prima
facie
wrongfulness, such as where the loss was due to damage caused to the
person or property of the plaintiff).”
[17] The reference to Goldstone J is taken from his judgment in
International Shipping Co (Pty) Ltd v Bentley
which was
subsequently quoted in the Supreme Court of Appeal decision in
International Shipping Co (Pty) Ltd v Bentley
1990 (1)
SA 680
(A) at 694E-G. Goldstone J had come to the conclusion that a
number of factors, viewed cumulatively, had constituted a legal duty
upon the respondent which the respondent had breached. One of the
factors considered was that there were “no considerations
of
public policy which should induce a court to deny liability” in
such a case as was being considered. The effect of the
comments of
Harms J in
Telematrix (Pty) Ltd
,
supra
, as I
understand them, is that where the case under consideration is one of
prima facie
wrongfulness then, unless there are found to be
considerations of public policy which should induce a court to deny
liability,
liability should follow. Where, however, the conduct under
consideration is not
prima facie
wrongful, liability will not
follow unless there is a positive finding that there are policy
considerations which dictate that
the plaintiff should be compensated
by the defendant for the loss suffered.
[18] In the present case I have no doubt that Mr
Redding
is correct in his submission that allegations of racism in the
workplace in South Africa constitute serious charges. Not only should
they be taken seriously by the employer but they would, inevitably,
also have a serious impact upon the employee.
Section 188
of the
Labour Relations Act No. 64 of 1995
provides that a dismissal must be
for a fair reason and in accordance with a fair procedure. The Code
of Good Practice: Dismissal
sets out the requirements of a fair
pre-dismissal procedure. In this context Grogan, in his work
“
Dismissal
” [Juta 2010] at p. 219 states:
“
Disciplinary
action may itself be prejudicial to employees. It is only fair,
therefore, that an employee should not be subjected
to a charge of
misconduct unless there are at least
prima
facie
grounds for suspecting that the employee actually committed the
misconduct alleged. …
A pre-hearing investigation is
precisely what its name suggests. During this phase, the employer
investigates the offence in order
to decide whether formal
disciplinary action may be justified.”
[19] In these circumstances, particularly where a serious charge
which may hold serious consequences is levelled against an employee,
the Code of Good Practice: Dismissal requires of an employer to
conduct an investigation into the allegations prior to disciplinary
proceedings being initiated. His failure to do so would, in my view,
constitute a breach of a legal duty. In the absence of such
an
enquiry I do not think that there are considerations of public policy
which would induce a court to deny liability in an appropriate
case.
[20] There is, I think, a second reason why the first defendant’s
argument in respect of wrongfulness cannot succeed. On
behalf of the
plaintiff it was alleged, as earlier stated, in paragraph [13] of the
Particulars of Claim that the first defendant
had acted without
reasonable and probable cause and with malice and could not have had
any reasonable belief in the truth of the
complaints lodged by the
second and third defendants when it brought the disciplinary
proceedings against the plaintiff. Mr
Scott
disavows
any reliance on negligence. He argues that the allegation of malice
entails an intentional act which was executed
mala fides.
The
term “malice” has given rise to considerable debate in
the context of the
actio iniuriarum
over the years, however, I
think that it can be safely accepted that “malice”
strikes at least at the subjective motive
of the actor and gives
expression to his
animus injurandi
. (Compare
Rudolph v
Minister of Safety and Security
2009 (5) SA 94
(SCA) at p.
100A-F) I shall revert to the meaning of the term “malice”
below. Suffice it at this stage to say that
it includes the intention
to injure (
animus injuriandi
). If this is established, I do
not think that there can be policy considerations which would induce
a court to deny liability.
[21] The allegation of malice in the context of paragraph [13] of the
Particulars of Claim accordingly constitutes an allegation
that the
institution of disciplinary proceedings was unlawful. Evidence in
support thereof would accordingly be admissible.
Culpability or Fault
[22] In heads of argument filed on behalf of the first defendant, Mr
Redding
contended that the Particulars of Claim failed
to contain sufficient allegations necessary to sustain a cause of
action by virtue
of the absence of an allegation of fault in the
sense that the first defendant acted intentionally or negligently.
Before me he
did not develop this argument further but contented
himself with the argument set out in his heads. This argument was
briefly formulated
as follows:
“
The
plaintiff’s allegations set out in paragraph 13 (that the first
defendant did not properly investigate the complaints,
satisfy itself
that the complaints were false and malicious and brought the charges
against the plaintiff without reasonable and
probable cause and with
malice) do not satisfy the requisite of fault insofar as the
aquilian
action is concerned – those allegations are allegations
directed at sustaining a claim under the
actio
iniuriarum
for sentimental damages for malicious proceedings; they do not
suffice to satisfy the requirement of fault under the
aquilian
action.”
[23] On behalf of the plaintiff Mr
Scott
argued that
the plaintiff’s allegation that the first defendant brought
charges against the plaintiff without reasonable and
probable cause,
and with malice, is sufficient to establish an intentional act on the
part of the first defendant aimed at causing
harm to the plaintiff
which is the fault relied upon by the plaintiff in these proceedings.
Mr
Scott
places his reliance on the reference to
“malice”. Although it is customary to allege malice in
proceedings under the
actio iniuriarum
the term has caused, as
earlier alluded to, great confusion, and indeed even controversy, in
our law.
In Moaki v Reckitt and Colman
supra
Wessels JA stated at 103E-G:
“
In
Pollock on
Torts
,
15th ed., at p. 18, the learned author, in dealing with 'motive and
malice' in English Law, concludes as follows:
'The use of such terms
as 'malice' and 'maliciously', appears therefore more likely to
perplex the law and hinder the study of its
true principles than to
advance justice in any substantial manner. Unluckily the terms have
been freely employed, and without any
clear or constant meaning, and
this has been the cause of great confusion which is not yet wholly
removed.'
Under the influence of English
Law the terms in question have (as unluckily) also been freely
employed, and without any clear or
constant meaning, in South Africa,
in the field of both civil and criminal law. That the use of the
terms has been the cause of
confusion is beyond question, and the
possibility that motives (good or bad) may in some actions still
constitute a determining
element of liability recurs for discussion
from time to time.”
[24] The learned Judge continued to draw a clear distinction between
“malice” on the one hand and “
animus injuriandi
”
on the other. He accordingly held at p. 104D-F:
“
It
follows, in my opinion, that, although it became customary to allege
'malice' in pleadings in actions of the type now under
consideration, our law has always required a plaintiff to prove
only the existence of the requisite legal intention to injure,
without requiring him to establish in addition the defendant's
motive, i.e., that he acted maliciously.
In the present case, therefore,
the appellant was not bound to aver that the respondents had acted
maliciously in causing a judgment
to be entered against him in
the circumstances set out in the particulars annexed to the combined
summons. But, on the other
hand, it is necessary to aver in the
particulars that, in so acting, the respondents intended injuring
appellant in his good name
and reputation. There is no express
averment in the particulars imputing
dolus
to the
respondents.”
[25] These developments were widely welcomed in academic circles and
the authors NJ van der Merwe and PJJ Olivier in “
Die
Onregmatige Daad in die Suid-Afrikaansereg
”, 6
th
ed, at 431 said, with reference to the decision in
Moaki v
Reckitt and Colman
supra
:
‘
Die
beginsels daar uiteengesit, is onverminderd by die
iniuria
laster van toepassing. In die besonder moet weer beklemtoon word dat
“malice” en
animus
iniuriandi
nie sinonieme is nie. “Malice” slaan op motiewe,
animus
iniuriandi
op die wil om te benadeel.’
[26]
Moaki v Reckitt and Colman
,
supra,
did not,
however bring an end to the debate arising from the term “malice”.
The courts continue to require malice to
be alleged and proved in the
actio iniuriarum.
See
Lederman v Moharal Investments
(Pty) Ltd
1969 (1) SA 190
(A) at 196-197;
Thompson and
Another v The Minister of Police
and Another
1971 (1) SA 371
(E) and
Stambolie v Commissioner of Police
1990 (2) SA 369
(ZSC) at 376I-377A. The author Harms in
Amler’s
Precedents and Pleadings
, 4
th
ed, at 212 declared that
in spite of what was said in
Moaki v Reckitt and Colman
supra
, a plaintiff would be well advised to allege and prove
not only
animus injuriandi
but also malice. Malice he
declared, in the context of the
actio iniuriarum
, was probably
an element relating to wrongfulness of the act rather than one
relating to
animus injuriandi
. More recently, however, Malan
AJA (as he then was) in
Relyant Trading (Pty) Ltd v Shongwe and
Another
[2007] 1 All SA 375
(SCA) declared at 378 para [5]:
“
Malicious
prosecution
consists
in the wrongful and intentional assault on the dignity of a person
comprehending also his or her good name and privacy.
The requirements
are that the arrest or prosecution be instigated without reasonable
and probable cause and with “malice”
or
animo
iniuriarum
.
Although the expression “malice” is used, it means, in
the context of the
actio
iniuriarum
,
animus
iniuriandi
.
In
Moaki
v Reckitt & Colman (Africa) Ltd and another
Wessels JA said:
“
Where
relief is claimed by this
actio
the
plaintiff must allege and prove that the defendant intended to injure
(either
dolus
directus
or
indirectus
).
Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account
in fixing the
quantum
of
damages, the motive of the defendant is not of any legal relevance.”’
[27] It must accordingly
now be accepted, notwithstanding the assertion by Van der Merwe and
Olivier, to which I referred earlier,
in the context of the
actio
iniuriarum
, that the reference to the term “malice”
strikes at the true intention of the actor and is to be understood as
being
an synonym for
animus injuriandi
.
Animus injuriandi
encompasses
dolus
, whether
dolus directus
or
dolus
indirectus
. Hence in
Minister van Polisie v Van der Vyver
(a judgment delivered by the Supreme Court of Appeal on 28 March 2013
in case no. 861/2011) Brand JA stated at para [21]:
“…
Wat
betref die tweede vereiste is die terminologie van kwaadwilligheid
(of malice) ietwat verwarrend, asof dit ‘n vereiste
sou wees
dat die verweerder met nyd of bose opset teenoor die eiser moes
gehandel het. Dit is egter nie so nie. Inteendeel kan
dit op hierdie
stadium van ons regsontwikkeling met vertroue aanvaar word dat die
aksie vir kwaadwillige vervolging, net soos ander
aksies wat hulle
oorsprong in die
actio
injuriarum
het,
slegs
animus
injuriandi
of te wel opset vereis. Voorts staan dit vas dat hierdie opset nie
alleen direkte opset nie, maar ook opset in die regstegniese
sin van
dolus
eventualis
insluit.”
[28] In the circumstances
I think that the allegation of “malice” embraces
intention in the sense of
dolus
and constitutes an averment of
fault.
Causation
[29] The first
defendant’s complaint is that the plaintiff has failed to make
sufficient allegations to establish legal or
factual causation in
respect of the claim.
[30] The material
averments in respect of causation are set out at paragraphs 14 and 15
of the particulars of the plaintiff’s
claim and are formulated
as follows:
“
14.
As a result of the aforesaid charges brought against the Plaintiff …
the Plaintiff has suffered emotional damage and
has developed major
depression and a post-traumatic stress disorder resulting in him
being unable to continue with his employment
with the First
Defendant, and unable to take up any other form of employment. The
nature and extent of the emotional distress and
depression suffered
by the Plaintiff … are set out in the medical reports of Dr
Ian Taylor ….
15.
As a result of the aforesaid emotional distress, depression and
post-traumatic stress disorder suffered by the Plaintiff, the
Plaintiff was medically boarded from his employment with the First
Defendant …”
[31] In the first report
by Dr Taylor annexed to and incorporated into the Particulars of
Claim Dr Taylor records:
“
He
was suspended on 28/06/2010 when a charge of racism was levelled
against him. He consulted with Dr. CJ Smith, his GP on 09/07/2010
and
was referred to Ms. I Marais, a psychologist and was then referred to
me on 09/09/2010.
He
stayed off on suspension til 24/11/2010 when he was found not guilty.
He
is, however, a broken man after his shoddy treatment and remains
ill.”
[32] Later, in the same
report, under the heading “Precipitating and Perpetuating
Factors” Dr Taylor states as follows:
“
He
was falsely accused of racism.
After
extensive investigation and a hearing he was found not guilty …
He
discovered that colleagues lied and made false statements.
He
remains ill and obviously cannot return to such a situation.”
[33] In his second report
annexed to the Particulars of Claim Dr Taylor records as follows:
“
Briefly
Mr. Weitz became ill after accusations of racism were levelled at him
and he was suspended for 20 months before the hearing
occurred and
his name was cleared.
He
was severely ill and even though his name was cleared, he was unable
to work and he was declared unfit for work.”
[34] In respect of the
particularity which a plaintiff is required to plead, I have referred
earlier herein to the provisions of
Rule 18(4) of the Uniform Rules
of Court. In
Makgae v Sentraboer (Koöperatief) Beperk
supra
it was held that in order for a pleader to
disclose a cause of action he: “moet toesien dat die wesenlike
feite (dit wil sê
die
facta probanda
en nie die
facta
probantia
of getuienis ter bewys van die facta probanda nie) van
sy eis met voldoende duidelikheid en volledigheid uiteengesit moet
word
dat, indien die bestaan van sodanige feite aanvaar word, dit sy
regskonklusie staaf en hom in regte sou moet laat slaag tav die
regshulp of uitspraak wat hy aanvra” (at p. 245D-E).
[35] The distinction
between the
facta probanda
and the
facta probantia
was
similarly highlighted in
Jowell v Bramwell-Jones and Others
supra
at 913F-G in which Heher J stated:
“
The
plaintiff is required to furnish an outline of its case. That does
not mean that the defendant is entitled to a framework like
a
cross-word puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough edges
not obvious until actually explored by evidence. Provided the
defendant is given a clear idea of the material facts which are
necessary to make the cause of action intelligible, the plaintiff
will have satisfied the requirements.”
[36] It is not
contentious that causation involves two distinct enquiries. These
were eloquently set out by Corbett CJ in
International Shipping
Company (Pty) Ltd v Bentley
supra
. Addressing factual
causation at p. 700E-F he stated:
“
The
first [enquiry] is a factual one and relates to the question as to
whether the defendant's wrongful act was a cause of the plaintiff's
loss. … The enquiry as to factual causation is
generally conducted by applying the so-called 'but-for' test,
which
is designed to determine whether a postulated cause can be
identified as a
causa
sine qua non
of the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. …”
[37] Mr
Redding
,
correctly in my view, conceded during argument that the enquiry,
being a factual one, must be dependent upon the evidence and
cannot
be determined at the exception stage. At the exception stage it seems
to me that the plaintiff has clearly alleged that
his emotional
distress, depression and post-traumatic stress disorder was a
consequence of the charges being brought against him
which in turn
was the cause for him being medically boarded. If, after evidence is
led these averments are established then, it
seems to me, it follows
that factual causation is established.
[38] Factual causation,
however, is not sufficient. Corbett CJ went on in
International
Shipping
,
supra
at p. 700H to state:
“…
demonstration
that the wrongful act was a
causa
sine qua non
of the loss does not necessarily result in legal liability. The
second enquiry then arises, viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote.
This is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called
'legal
causation'.”
[39]
Mr
Redding
confined his argument in
the exception to legal causation. It is argued that it could not have
been foreseeable by the first defendant,
or anyone on its behalf,
that the laying of disciplinary charges against the plaintiff
pursuant to complaints made by the second
and third defendants would
result in the plaintiff suffering emotional trauma to the extent that
it would result in him being unemployable
either by the first
defendant, or any other employer, and that he would remain
unemployable for an additional twelve years until
the age of 65. In
all the circumstances, so the argument goes, such damages would be
too remote.
[40] It is true that
Corbett CJ stated in International Shipping that this enquiry is
basically a juridical problem and that the
solution may involve
considerations of policy. It has, however, repeatedly, been accepted
that the test for determining the remoteness
of damages is a flexible
one. (See
International Shipping
,
supra
at
701A-F;
Smit v Abrahams
1994 (4) SA 1
(A) at 15E-G;
OK
Bazaars (1929) Ltd v Standard Bank of South Africa Ltd
2002
(3) SA 688
(SCA) at 697 para [23] and
Fourway Haulage SA (Pty)
Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) at
164 para [33]-[34].) In
Fourway Haulage
supra
Brand JA traced the essence of the flexible test back to
S v
Mokgethi en andere
1990 (1) SA 32
(A) at 40I-41D. Here,
he noted, that Van Heerden JA had not stated that the “flexible”
or “supple” test
supersedes all other tests such as
foreseeability, proximity or direct consequences, which were
suggested and applied in the past,
but merely that none of these
tests can be used exclusively and dogmatically as a measure of
limitation in all types of factual
situations.
[41] I think that the
material portions of the Particulars of Claim which I have set out
above clearly state that the emotional
distress, major depression and
post-traumatic stress disorder are a direct result of the institution
of the charges in the disciplinary
proceedings. It is alleged too
that this medical condition gave rise directly to the loss which is
claimed. Whether this allegation
can be established is a matter for
evidence. I do not think that the foreseeability of such harm can be
determined at the exception
stage and this would depend, at least in
part, upon the evidence presented at the trial relating to the
history of the relationship
between the parties and the first
defendant’s knowledge, or otherwise, of the plaintiff’s
psychological make-up and
fallibility. This in turn would impact upon
the application of policy considerations to the facts of the present
matter.
[42] In the circumstances
I do not think that the question of legal causation in the present
dispute can be determined at the exception
stage. I do not mean
thereby to suggest that it could never be determined at the exception
stage. There may be circumstances where
legal causation could be
determined on exception. On the pleadings in the present matter,
however, I think that this finding can
only be made by the trial
court.
[43] In the result the
exception is dismissed with costs.
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For Excipient/First
Defendant:
Adv Redding SC and Adv T Dalrymple instructed by
Pagdens, Port Elizabeth
For
Respondent/Plaintiff:
Adv P Scott SC instructed by G P van Rhyn,
Minaar & Co. Inc., c/o Daniel Saks Inc, Port Elizabeth