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Adise v Minister of Defence and Military Veterans (32474/2022) [2023] ZAGPPHC 732 (21 August 2023)

80 Reportability
Personal Injury Law - Medical Negligence
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Brief Summary

Exceptions — Pleadings — Compliance with Rule 18(10) of the Uniform Rules of Court — Plaintiff's particulars of claim for damages due to alleged assault by SANDF members challenged for lack of specificity regarding injuries and quantum — Defendant contends inability to assess damages due to vague allegations — Court finds that the particulars, when read as a whole, sufficiently disclose the claim and enable the defendant to assess the quantum of damages — Exception dismissed with costs.

Comprehensive Summary

Summary of Judgment


Introduction


This judgment concerns an exception taken by the defendant to the plaintiff’s particulars of claim. The proceedings were interlocutory in nature and did not determine the merits of the delictual claim; instead, they addressed whether the pleading was legally adequate and sufficiently particularised to permit a proper response.


The parties were Abraham Ayele Adise (plaintiff) and the Minister of Defence and Military Veterans (defendant). The plaintiff instituted an action for damages arising from an alleged assault by members of the South African National Defence Force (SANDF). The defendant delivered a notice of exception contending that the particulars of claim were excipiable.


Procedurally, the matter came before the Gauteng Division, Pretoria, as an exception directed at the sufficiency of the plaintiff’s pleading. The court (Marx du Plessis AJ) was required to determine whether the particulars of claim were vague and embarrassing, or lacked averments necessary to sustain a cause of action, with specific reference to alleged non-compliance with Rule 18(10) of the Uniform Rules of Court.


The general subject-matter of the dispute was the adequacy of pleading in a personal injury / emotional shock damages claim, and whether the plaintiff had pleaded the nature and consequences of the alleged harm with enough particularity to allow the defendant reasonably to assess quantum and plead.


Material Facts


The court treated the matter on the basis that, for purposes of exception, the facts pleaded by the plaintiff must be accepted as true. The material facts were therefore drawn from the plaintiff’s particulars of claim as pleaded, rather than from evidence.


The plaintiff pleaded that he was born in January 1993. He alleged that during April 2020 he was assaulted by members of the SANDF, and that this assault caused him to suffer multiple injuries, which were set out in the particulars of claim (the judgment recorded that the injuries were detailed in paragraph 4 of the particulars).


The plaintiff’s claim, as characterised by the court, was not framed as one including patrimonial loss such as loss of earnings. Instead, the pleaded damages were confined to non-patrimonial harm and limited future treatment. The plaintiff claimed general damages of R3 000 000.00 for emotional shock, trauma and grief allegedly resulting from the assault and resultant injuries.


In addition, the plaintiff pleaded that as a consequence of the emotional shock and trauma, his mental health was impaired and he required future medical treatment in the form of psychotherapy. He quantified this as R12 000.00, calculated as twelve psychotherapy sessions at R1 000.00 per session.


The defendant’s complaint was directed at alleged omissions in the particulars of claim, including (as argued) insufficient detail about the plaintiff’s disability, its effect and duration, and particulars relevant to the plaintiff’s ability to work in future. The court recorded that counsel for the defendant confirmed that the exception was confined to certain paragraphs of the particulars of claim (paragraphs 10, 11 and 16), but the court approached the exception on the basis that it is directed at the pleading as a whole.


Legal Issues


The central legal question was whether the plaintiff’s particulars of claim were excipiable on the basis that they did not comply with Uniform Rule 18(10) and, as a result, were so inadequately particularised that the defendant could not reasonably assess quantum or plead.


Closely connected to this was whether the alleged defects rendered the particulars of claim vague and embarrassing, causing serious prejudice to the defendant, or whether the pleading lacked averments necessary to sustain a cause of action. The court also had to engage with the procedural appropriateness of employing an exception (as opposed to Rule 30 irregular step proceedings) where the complaint is framed as non-compliance with the rules of pleading.


The dispute primarily concerned the application of legal principles governing exceptions to the pleaded facts, including evaluative assessments of whether the alleged lack of particularity reached the threshold of vagueness and embarrassment and whether any embarrassment was prejudicial in the relevant sense.


Court’s Reasoning


The court began by distinguishing between two procedural pathways. It noted that where a pleading fails to comply with Rule 18, the more appropriate remedy is often to treat the non-compliance as an irregular step and proceed under Rule 30, particularly given Rule 18(12) deeming such non-compliance to be an irregular step. The court further observed that the approach to Rule 30 differs from the approach to an exception, and that an exception is aimed at pleadings that are so defective that a cause of action (or defence) cannot properly be discerned.


The court then set out the principles governing exceptions, relying on authority reaffirmed by the Supreme Court of Appeal. An exception is competent where pleadings are so vague that the nature of the claim cannot be determined, or where pleadings are bad in law because they do not disclose a legally recognised cause of action. The court emphasised that the burden rests on the excipient to show that on every reasonable interpretation the pleading is excipiable, and that an exception should only be upheld if it is impossible to recognise the claim irrespective of what evidence may emerge at trial.


In addressing vagueness and embarrassment, the court applied the two-stage inquiry reflected in the cited authorities. First, it must be determined whether the pleading lacks particularity to the extent of being vague (including whether it is meaningless or capable of more than one meaning). Second, even if vague, the vagueness must cause embarrassment that is sufficiently prejudicial; this is a factual inquiry and a matter of degree.


Applying those principles, the court treated the plaintiff’s case as a personal injury claim in which the plaintiff was required to plead the wrongful act, resultant damages, and the quantum thereof. The court extracted from the particulars of claim the key pleaded facts, including the plaintiff’s date of birth, the alleged assault by SANDF members, the pleaded injuries, and the limitation of the claim to emotional shock damages and quantified future psychotherapy.


A significant aspect of the court’s reasoning was its rejection of the defendant’s attempt to focus the exception narrowly on particular paragraphs. The court reiterated that an exception is not directed at isolated paragraphs but at the pleading as a whole, and that paragraphs cannot be read in isolation. Read holistically, the court found that the pleading enabled the defendant to identify what was being claimed and to estimate quantum reasonably.


The court accepted that Rule 18(10) requires a plaintiff suing for damages to set them out in a manner that enables the defendant reasonably to assess quantum. However, it held that the plaintiff had done so: the plaintiff pleaded discrete amounts and the heads to which they related, namely general damages for emotional shock and trauma and quantified future psychotherapy sessions.


Crucially, the court held that the additional particulars demanded by the defendant (such as details about future work ability and disability affecting earning capacity) were directed at future loss of earnings, yet future loss of earnings was not part of the plaintiff’s claim as pleaded. The court noted that, apart from the plaintiff’s date of birth (which was in fact pleaded), the allegedly omitted allegations were not essential to the pleaded cause of action and did not render the pleading excipiable.


On that basis, the court concluded that the plaintiff had pleaded the material facts relied upon, had pleaded the quantum of the damages claimed under each head pursued, and had included the averments necessary to sustain the claim as formulated. The defendant therefore failed to establish that the particulars of claim were vague and embarrassing or lacked essential averments.


Outcome and Relief


The court dismissed the exception. The defendant was ordered to pay the costs of the exception.


Cases Cited


Luke M v Tembani and Others v President of the Republic of South Africa and Another 2023 (1) SA 432 (SCA) (20 May 2022).


Jowell v Bramwell-Jones 1998 (1) SA 836 (W).


Brits v Coetzee 1967 (3) SA 570 (T).


Trope v South African Reserve Bank and Another and Two Other Cases 1992 (3) SA 208 (T).


Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C).


Sivuka and 328 Others (36879/2015) (2022) ZAGPJHC 450 (30 June 2022).


Simmonds v White 1980 (1) SA 755 (C).


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


Uniform Rules of Court, Rule 18(10).


Uniform Rules of Court, Rule 18(12).


Uniform Rules of Court, Rule 30.


Held


The court held that, assessed as a whole, the plaintiff’s particulars of claim pleaded sufficient material facts and sufficient particularity regarding the heads of damages actually pursued (general damages for emotional shock, trauma and grief, and quantified future psychotherapy expenses) to enable the defendant reasonably to assess quantum and plead.


The court further held that the additional particulars demanded by the defendant largely related to a claim for future loss of earnings, which was not part of the plaintiff’s pleaded case, and that the alleged omissions therefore did not render the pleading vague and embarrassing or lacking in averments necessary to sustain a cause of action.


Accordingly, the exception was dismissed with costs.


LEGAL PRINCIPLES


An exception is aimed at disposing of pleadings that are so vague and embarrassing that the nature of the claim cannot be determined, or that are bad in law in that they do not disclose a legally recognised cause of action. The excipient bears the onus to establish excipiability on every reasonable interpretation of the pleading, and an exception should only be upheld if it is impossible to recognise the claim irrespective of what facts may emerge at trial.


In assessing an exception on the ground that a pleading is vague and embarrassing, the inquiry is whether the pleading lacks particularity to the extent that it is vague (including being meaningless or capable of more than one meaning), and if so, whether such vagueness causes embarrassment that results in serious prejudice to the excipient. Prejudice is a factual inquiry and a matter of degree.


Where the complaint is framed as non-compliance with the pleading rules (including Rule 18), the judgment reiterates that the more appropriate procedural remedy may be an irregular step application under Rule 30 (noting Rule 18(12)), rather than an exception, depending on the nature of the complaint.


In a damages claim, Rule 18(10) requires that damages be set out with sufficient particularity to enable the defendant reasonably to assess quantum. The sufficiency of particularity is evaluated in relation to the claim actually pleaded; a plaintiff is not required, for purposes of compliance with Rule 18(10), to plead particulars relevant only to heads of damages not pursued.

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[2023] ZAGPPHC 732
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Adise v Minister of Defence and Military Veterans (32474/2022) [2023] ZAGPPHC 732 (21 August 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
32474/2022
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED:
YES/
NO
DATE:
21 August 2023
In
the matter between:
ABRAHAM
AYELE ADISE
PLAINTIFF
and
MINISTER OF
DEFENCE AND MILITARY VETERANS
DEFENDANT
JUDGMENT
Marx
du Plessis, AJ
Introduction
1.
Before me is an exception raised against the
plaintiff's particulars
of claim. The defendant argues, simply put, that the plaintiff's
particulars of claim is excipiable as
it lacks compliance with the
provisions of Rule 18(10) and this alleged non-compliance results in
the defendant being unable to
assess the quantum of damages claimed
by the plaintiff.
2.
The plaintiff's claim is for general damages
in the sum of R 3 000
000.00 and future medical expenses in the sum of R 12 000.00. The
basis of the plaintiff's claim is an alleged
assault perpetrated upon
him by members of the South African National Defence Force (referred
to herein as
'SANDF').
The
exception
3.
The defendant raises the following as grounds
for its exception:
"2.   A
Plaintiff suing for damages is required by Rule 18( 10) to
set them out in a manner as will enable the Defendant
reasonably
to assess the
quantum thereof;
3.
A
Plaintiff suing for Personal Injuries is required to specify
not only his date of birth, the nature and extent of the injuries,
but
also the effects and duration
of
the
disability alleged to give rise to such damages.
4.
Furthermore, Plaintiff shall state separately what amount (if any)
is claimed
for;
4.1
Medical costs and
hospital and other similar
expenses and how these costs are made up;
4.2
Pain and
suffering, stating whether temporary or
permanent and which injuries caused it;
4.3
Disability in respect
of
the earning of income,
(stating earnings lost to
date and how the amount is
made
up and also the estimated future loss and
the
nature of the work the Plaintiff will in future be able to do)
and also whether the disability is permanent
or
temporary.
5.
The Plaintiff
does
not allege the nature, effects
and duration of the disability alleged to give rise to
his
damages.
6.
Defendants have
no
idea of the nature
and
effect of
the injuries Plaintiff alleges he suffered
from
and therefore
cannot plead to the Particulars of claim
or
assess the
Plaintiff's alleged damages.
7.
Proper
a/legations regarding the nature
and
effect of the
Plaintiff's alleged injuries are essential elements
for
a
cause of action of the nature pleaded by the Plaintiff
8.
The Plaintiff has not pleaded those facts which he
bears
the onus of proving in
order
to demonstrate entitlement to
the relief which he seeks.
9.
Particulars
of
claim
do
not
comply
with the
provisions
of
Rule
18 (10) of the Uniform
Rules
of Court.
10.
The particulars of claim
do
not contain the necessary
averments to disclose
or
sustain
a
cause of action."
11.
The Plaintiff's failure to make these essential a/legations
render the particulars of claim vague and embarrassing."
(sic)
4.
Upon a reading of the notice of intention
to except and the notice of
exception, it appears that the defendant's complaint is specifically
directed at paragraphs 10, 11
and 16 of the particulars of claim.
This was addressed with counsel appearing for the defendant who,
curiously, confirmed that
the exception was confined to these
paragraphs of the particulars of claim.
Legal
principles applicable to exceptions
5.
In
circumstances where a pleading does not comply with the provisions of
Rule 18, the
more
appropriate remedy for the complaining party is to rely on the
provisions of Rule 30, bringing an application for an order
setting
aside the pleading complained of as an irregular step.
[1]
6.
The
approach in adjudicating a complaint against a pleading based solely
upon the lack of compliance with the Uniform Rules of Court,
the
complaint being brought before a court in terms of the provisions of
Rule 30, differs from the approach applied when adjudicating
an
exception based upon a pleading being vague and embarrassing or
lacking averments necessary to sustain a cause of action.
[2]
7.
The purpose of an exception is to dispose
of pleadings that are so
vague and embarrassing that a clear and understandable cause of
action or defence cannot be ascertained.
8.
The approach to be adopted and applied when adjudicating
exceptions has recently been reaffirmed by the Supreme Court of
Appeal
in
Luke M
v
Tembani
and
Others
v
President of the Republic of South Africa
and
Another
2023
(
1) SA 432
(SCA) (20 May
2022). It was stated that:
"[ 14]
'Whilst exceptions provide
a
useful mechanism 'to weed
out cases without legal merit', it is nonetheless necessary that they
be dealt with sensibly. It is where
pleadings are so
vague
that
it is impossible to determine
the nature of
the
claim or where pleadings
are
bad
in law in that
their contents
do
not support
a
discernible
and
legally recognised cause of action, that an exception is
competent. The burden rests
on
an excipient, who must
establish that
on
every interpretation that can reasonably
be
attached to it, the
pleading is
excipiable. The test is whether on all possible readings of the facts
no cause of action may be
made
out;
it
being
for
the
excipient
to
satisfy
the
court
that
the conclusion
of
law
for
which
the
plaintiff
contends
cannot
be
supported on
every
interpretation
that
can
be
put upon
the
facts.
[15]
...
[16]
… It is thus only if the
court can conclude that
it is impossible to recognize
the
claim,
irrespective
of
the
facts
as
they
might
emerge
at
the trial, that
the exception
can and
should
be
upheld.'
(References have been omitted).
9.
When called
upon to determine whether a pleading is vague and embarrassing it
must first be
determined
whether the pleading lacks particularity to the extent that it is
vague and, if so, the
vagueness
complained
of must
result in serious prejudice
to
the
complaining party.
[3]
10.
The nature
of the particularity required from a pleading was explained in
Trope
v
South
African
Reserve
Bank
and
Another
and
Two
Other
cases
as
follows:
[4]
'It is, of
course, a
basic
of
principle
that the particulars
of
claim
should be
so phrased
that a defendant
may reasonably
and
fairly
be
required to
plead thereto. This must be
seen against the background
of
the
further
requirement
that the object
of
pleadings
is
to
enable each side to
come
to
trial
prepared
to
meet
the
case
of
the
other
and
not
be taken by surprise.
Pleadings
must therefore be
lucid and
logical and in
an
intelligible form; the
cause
of
action or defence must appear clearly from
the
factual
allegations
made...'
11.
In determining whether an alleged lack of particularity is
vague, to
the extent of causing embarrassment to the complaining party, one is
to consider the following:
11.1
Whether the
pleading is meaningless or capable of more than one meaning.
[5]
11.2
And if the pleading is
meaningless or capable of more than one
meaning, the complaining party must show that embarrassment is caused
to it and that the
embarrassment so caused is prejudicial.
12.
Whether the
embarrassment caused is prejudicial is a
factual
inquiry and a question of degree.
[6]
13.
In adjudicating this exception, I must accept that the facts
pleaded
by the plaintiff in his particulars of claim are true and correct,
bearing in mind that the plaintiff only needs to plead
the facts
which are necessary for him to prove his claim.
14.
Plaintiff's claim is a personal injury claim. He is thus required
to
allege the wrongful act which gave rise to the injuries, the
resultant damages and the quantum thereof.
15.
From a reading of the particulars of claim the following facts

appear:
15.1
The plaintiff is a young man, born during January 1993.
15.2
The plaintiff was assaulted by members of the SANDF during April 2020
and this assault
caused the plaintiff to suffer multiple injuries,
all of which are detailed in paragraph 4 of the particulars of claim.
15.3
Due to the assault and resultant injuries, the plaintiff suffered
emotional shock,
trauma and grief for which he claims R 3 000 000.00.
15.4
Due to the emotional shock and trauma caused by the assault, the
plaintiff's mental
health is impaired, and he requires future medical
treatment in the form of psychotherapy. For this he claims R 12
000.00 which
is for twelve sessions calculated at a rate of R 1
000.00 per session.
15.5
The plaintiff's claim is limited to damages for emotional shock,
trauma and grief
as well as future medical expenses.
16.
It was argued on the defendant's behalf that what is lacking
from
paragraphs 10, 11 and 16 of the particulars of claim is,
inter
alia,
particulars regarding the plaintiff's ability to work in
future, his date of birth and the nature and extent of the disability
the
plaintiff is alleged to have suffered as a result of the SANDF's
conduct as complained of by the plaintiff. This, so the argument

goes, makes it impossible for the defendant to assess the quantum of
damages claimed by the plaintiff.
17.
It is trite
that an exception taken against a pleading is not
directed at
a particular paragraph or paragraphs within the pleading. An
exception
is directed
at the formulation of the claim as a whole.
[7]
No paragraphs can be read in isolation.
18.
The plaintiff's claim is formulated in such a manner that,
when read
and considered as a whole, enables the defendant to identify the
plaintiff's claim and to reasonably estimate the quantum
of damages
claimed by the plaintiff.
19.
Plaintiff's
claim need
only be
pleaded
in
such a
manner that will supply the
defendant
with
the
necessary facts which
will
enable the
defendant to reasonably assess the
quantum of
the damages claimed.
[8]
This the
plaintiff has done.
20.
Considering the particulars of claim a whole, the defendant
is able
to ascertain what amounts are claimed by the plaintiff and in respect
of which head of damage the amount is claimed.
21.
The allegations and particulars which the defendant asserts
have been
omitted from the particulars of claim, save for the plaintiff's date
of birth which was pleaded, relate to claims for
future loss of
earnings, which does not for part of the plaintiff's claim.
22.
The plaintiff has pleaded the material facts which he relies
on in
support of his claim and the quantum thereof and all the averments
necessary to sustain his claim have been pleaded.
23.
Under the circumstances, the exception is dismissed, with costs.
ORDER
In
the result, the following order is granted:
1. The exception is
dismissed, with costs.
Z
MARX DU PLESSIS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of Hearing:
15
May 2023
Judgment
delivered:
21
August 2023
Appearances:
Counsel
for the plaintiff:
T
Mosikili and S Qagana
Instructed
by:
The
Human Rights Commission
Counsel
for the defendant:
AK
Mabena
Instructed
by:
State
Attorney Pretoria
[1]
Rule 18
(12) of the Uniform Rules of Court:
"If
a
party
fails to comply with any of the provisions of this rule, such
pleading
shall
be deemed to be an irregular step and the opposite
party
shall be entitled to act in accordance
with
rule 30."
[2]
Jowell
v Bramwell Jones
1998
(1) SA 836
(W)
at 902F-G
[3]
Brits
v Coetzee
1967
(3) SA 570
(T) at 572A.
[4]
1992
(3) SA 208
(T)
210G-H
[5]
Venter
and
Others
NNO
v
Wolfsberg
Arch
Investments
2
(Pty)
Ltd
2008
(4)
SA
639
(C) at
644A-B
[6]
Sivuka
&
328
Others
(36879/2015)
(2022) ZAGPJHC 450
(30
June 2022)
at para (7)
[7]
Jowell
v BramwellJones
1998
(I)
SA
836
(W)
at 899G;
Venter
and Others NNO v
Barritt;
Venter and Others NNO v Wolfsberg Arch Investments 2
(Pty)
Ltd
2008
(4) SA 639
(C)
at 644A.
[8]
Simmonds v White
1980 (1) SA 755
(C)

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