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[2021] ZAGPJHC 669
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Makhanya v The Member of the Executive Council for Health, Gauteng Provincial Government (46318/2018) [2021] ZAGPJHC 669 (16 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 46318/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
16
August 2021
In
the matter between:
MAKHANYA
GUGULETHU
Plaintiff/Excipient
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH,
GAUTENG PROVINCIAL GOVERNMENT
Defendant/Respondent
Judgment
Mdalana-Mayisela
J
1.
This is an
exception delivered by the plaintiff against the defendant’s
plea on the grounds that the defendant’s plea
is vague and
embarrassing and/or it lacks sufficient averments necessary to
sustain a defence and/or it fails to comply with the
requirements of
Rule 22(2) of the Uniform Rules of Court. The parties are, for
convenience referred to as in the main action.
Background
2.
The plaintiff has
issued combined summons out of this Court seeking damages suffered as
a result of the unlawful death of the plaintiff’s
child shortly
after birth, which the plaintiff avers was caused by the defendant’s
employees at the Zola Clinic and/or the
Bheki Mlangeni District
Hospital and/or the Chris Baragwanath Hospital and/or the Raheema
Moosa Mother and Child Hospital in the
course and scope of their
employment by the Gauteng Provincial Government.
3.
The defendant filed a
plea to the plaintiff’s particulars of claim as well as a
special plea. The plaintiff served a notice
to remove cause of
complaint in terms of Rule 23(1) of the Uniform Rules of Court dated
15 October 2020. The defendant declined
to remove a cause of
complaint. The plaintiff delivered an exception to the defendant’s
plea. The defendant filed an answering
affidavit opposing the
exception, pleading that the notice of exception was premature and
that the special plea should be determined
first.
Special
plea
4.
The plaintiff in
her particulars of claim avers that the minor child’s minority
has pardoned her from compliance with any
statutory time limitation,
alternatively
,
on 22 October 2018 the plaintiff gave a written notice to the
defendant in terms of section 3(2)(a) of the Institution of Legal
Proceedings against Certain Organs of State Act, No. 40 of 2002 (“the
Act”),
further
alternatively
, the
plaintiff shall seek condonation for any non-compliance with any
statutory time limitation.
5.
The defendant in the
special plea contends that it is not in receipt of the aforesaid
written notice and there is no proof provided
by the plaintiff that
it was served on the defendant or its appointed attorneys. The
defendant contends that the plaintiff has
not complied with the
provisions of the Act, and therefore she is barred from instituting
civil action against the defendant.
6.
The defendant in the
answering affidavit to the notice of exception contends that because
the plaintiff is not excepting to the
special plea, it therefore
stands, and until the plaintiff has dealt with it the plaintiff is
not properly before this Court.
7.
The defendant has not
brought an application in terms of Rule 30 of the Uniform Rules of
Court setting aside the notice of exception
as an irregular step, and
therefore it is barred from pleading in the answering affidavit that
the notice of exception was premature.
Furthermore, an exception
cannot be defeated by a suggestion that a replication could have
preceded it.
Grounds
of exception
8.
The plaintiff excepts
on thirteen grounds to the defendant’s plea on the basis that
same is vague and embarrassing, and/or
lacks sufficient averments to
sustain a defence, and/or it fails to comply with Rule 22(2). The
plaintiff’s complaints are
in relation to paragraphs 2.1,
3.1-3.8, 3.15-3.16, 3.23-3.25, 3.28-3.35, 4.5, 5.4-5.6, 5.7, 5.9,
5.12, 5.19, 5.23-5.24 of the defendant’s
plea. It is not
necessary to repeat the grounds as set out in the exception in this
judgment.
9.
The plaintiff complains
firstly, that she is suing the defendant in a representative capacity
as the person responsible in law for
the various institutions that
rendered medical treatment to the plaintiff, the defendant noted
these averments but failed to admit
or deny them, and therefore, the
defendant has failed to comply with the requirements of Rule 22(2).
The plaintiff avers that she
is unable to ascertain from the whole
plea whether the defendant is admitting or denying vicarious
liability; whether the defendant
alleges that the relevant
individuals acted independently of the defendant and therefore should
be joined in their own right; and
if they acted independently upon
what basis they were engaged or entitled to render services in such
institutions on behalf of
the defendant.
10.
Secondly, the defendant
in various paragraphs in the plea has referred to statutes and
omitted to give details of those statutes,
and as such the plaintiff
is unable to plead thereto. Thirdly, it is not clear whether the
defendant accepts the plaintiff’s
claim in common law as it
stands; or wishes to allege that the common law should be developed;
or whether the common law has been
substituted by the statute, and if
so which part of the common law has been substituted by the statute,
which statute the defendant
is referring to, and how such statute
substitutes the common law.
11.
Fourthly, the plaintiff
has pleaded an oral agreement including the material terms relied
upon in support of her claim, the defendant
has not pleaded to the
oral agreement in the main instead it pleaded in the alternative; and
it is not clear from the plea whether
the defendant is admitting or
denying the oral contract and its material terms.
12.
Lastly, the defendant
has made material contradictory allegations in the plea. In paragraph
4.1 of the plea the defendant admits
that on 27 June 2018 the
plaintiff was admitted to the Clinic and immediately transferred to
the Bheki Mlangeni District hospital,
whereafter she was transferred
to the Chris Hani Baragwanath Hospital, and on or about 28 June 2018
she was transferred to the
Rahima Moosa Mother and Child Hospital,
where she was admitted with her then unborn child. The defendant
further admits in paragraphs
4.4 and 4.6 of the plea that on 29 June
2018 the plaintiff’s child was born by way of a caesarean
section and the child passed
away shortly after birth. In paragraph
4.5 of the plea, despite the aforesaid admissions, the defendant
denies all these allegations.
Discussion
13.
During the argument
Counsel for the plaintiff submitted that the main ground for the
exception is that the defendant’s plea
is vague and
embarrassing. The issues in this matter are narrow. The defendant in
the answering affidavit has conceded to the aforementioned
complaints
by the plaintiff save for that the plea is contradictory in material
respects. The defendant contends that the grounds
of the exception do
not strike at the root of the defence. The defendant submits that the
plaintiff ought to have brought an application
in terms of Rule 30 of
the Uniform Rules of Court rather that an exception,
alternatively
,
the plaintiff could have delivered a request for further particulars
to obtain the further particularity sought.
14.
The plaintiff submits
that the plea is excipiable on the basis that when read as a whole it
is vague and embarrassing and is prejudicial
to the plaintiff in that
she is unable to replicate to the same nor determine what case she
has to meet at trial. Furthermore,
the way the plea has been
formulated it does not comply with the provisions of Rule 22(2). The
plaintiff further submits that she
has a choice of remedies, she may
either bring an application in terms of Rule 30 or an exception in
terms of Rule 23.
15.
In noting the
exception, the plaintiff applied the principle in
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(W) at 469F-J,
where
the Court stated that where a pleading does not comply with rule 18
of the Uniform Rules of Court the other party has the
option to
either proceed in terms of Rule 30 or Rule 23. In my view the
plaintiff correctly noted the exception in this matter
because the
issues involved are substantive in nature.
16.
Rule 22(2) of the
Uniform Rules of Court provides that:
‘
The
defendant shall in his Plea either admit or deny or confess and avoid
all the material facts alleged in the combined summons
or declaration
or state which of the said facts are not admitted and to what extent,
and shall clearly and concisely state all
material facts upon which
he relies.’
17.
Rule 18(4) of the
Uniform Rules of Court provides that:
‘
Every
pleading shall contain a clear and a concise statement of the
material facts upon which the pleader relies for his claim,
defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
’
18.
The object of pleading
is to define the issues between the parties. In
Odgers
Principles of Pleading and Practice in Civil Actions in the High
Court of Justice 22
nd
Edition at page 113
it is stated as follows:
‘
The
object of pleading is to ascertain definitely what is the question at
issue between the parties; and this object can only be
obtained when
each party states his case with precision
.’
19.
In
Absa
Bank Limited v Mocke (1324/2016)
(2017) ZAFSHC 97
(15 June 2017) at
paragraph (2)
it
was stated that the object of the 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 and the cause of action or
defence must clearly
appear from the factual allegations made.
20.
Rule 23(1) of the
Uniform Rules of Court provides that:
‘
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 filing any
subsequent pleading, deliver an exception thereto and
may set it down
for hearing in terms of paragraph (f) of subrule (5) of rule (6):
Provided that where a party intends to take an
exception that a
pleading is vague and embarrassing he shall within the period allowed
as aforesaid by notice afford his opponent
an opportunity of removing
a cause of complaint within 15 days: Provided further that the party
excepting shall within ten days
from the date on which a reply to
such notice is received or from the date on which such reply is due,
deliver his exception
.’
21.
An exception that a
pleading is vague and embarrassing involves a twofold consideration:
The first is whether the pleading lacks
particularity to the extent
that it is vague; and the second is whether the vagueness causes
embarrassment to such an extent that
the excipient is prejudiced
(
Quinlan v MacGregor
1960 (4) SA 383
(D) at 393E-H
).
The excipients have to show that the pleading is excipiable on every
interpretation that can reasonably be attached to it (
Theunissen
en Andere v Transvaalse Lewendehawe Koop Bpk
1988 (2) SA 493
(A) AT
500E-F
).
22.
The onus is on the
plaintiff to show that the defendant’s plea is excipiable on
the ground of being vague and embarrassing.
The plaintiff must show
both the vagueness and the prejudice and must do so within the ambit
of the pleadings. In
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
2003 (2) SA 620
(T)
it was held as follows:
‘
The
onus is of course on the excipient to show both vagueness amounting
to embarrassment and embarrassment amounting to prejudice.
Where the
excipient relies on embarrassment, such must be demonstrated by
having regard to the pleadings only. The attack must
arise from
within the four walls of the pleading which is the source of the
complaint and what is more, such embarrassment must
not be frivolous,
it must be substantial. See in this regard Lockhat and Others v
Minister of the Interior
1960 (3) SA 765
(D) at 777B-H. Therefore,
the ultimate test on whether an exception should be upheld is whether
the excipient is prejudiced. In
this regard see for instance Levitan
v Newhaven Holiday Enterprises CC
1991 (2) SA 297
© at 298 A-J
.’
23.
The defendant in
paragraph 4.1 of the plea admitted that on 27 June 2018 the plaintiff
was admitted to Zola Clinic with her unborn
child, and immediately
transferred to Bheki Mlangeni District Hospital, and on or about 28
June 2018 transferred to Chris Hani
Baragwanath Hospital and later
transferred to Rahima Moosa Mother and Child Hospital. In paragraph
4.4 the defendant admitted that
on 29 June 2018 the plaintiff’s
child was born by way of a caesarean section and in paragraph 4.6 the
defendant admitted
that the child passed away shortly after birth. In
paragraph 4.5 of the plea, despite the aforesaid admissions, the
defendant denies
all these allegations.
24.
The allegations
contained in the plea mentioned in paragraph 23 above are not pleaded
in the alternative. These allegations are
material to the plaintiff’s
claim in the main action against the defendant. The admissions in
paragraphs 4.1, 4.4 and 4.6,
and the denial in paragraph 4.5 of the
plea are mutually destructive versions. They are contradictory in
material respects and
result in the plaintiff not knowing what case
the defendant is advancing and hence not being in a position to
replicate to the
plea. These contradictory allegations make the plea
to be vague and embarrassing and prejudicial to the plaintiff.
25.
The defendant in
paragraphs 3.2, 3.12, 3.13, 3.20, 3.25, 3.30, 5.5, 5.6, 5.19, 5.23,
7.36 and 7.37 of the plea referred to Statutes
and statutory
requirements without giving details thereof. The omissions by the
defendant are material in considering the defences
pleaded, that the
plaintiff has no cause of action under common law because it has been
substituted by statute;
alternatively
,
the common law should be developed to bring it in line with the
legislation and Constitution; and that the plaintiff also has
no
cause of action under statute law.
26.
The defendant attempted
to supplement the plea in the answering affidavit by clarifying which
statutes are referred to in the plea.
This is not allowed. In
considering the exception, the court must look at the pleading as it
stands, no facts outside those contained
in the pleading may be
considered. The defendant’s plea does not comply with Rule
18(4) in that it fails to provide a degree
of detail necessary in
this case to inform the plaintiff of the case being advanced. In the
result the plaintiff is prejudiced
as she is unable to replicate to
the plea. These omissions render the plea vague and embarrassing.
27.
The defendant has not
pleaded to the oral agreement in the main, instead it has pleaded in
the alternative; and it is not clear
from the plea whether the
defendant is admitting or denying the oral agreement and its material
terms. The defendant has failed
to comply with Rule 22(2) which
requires the defendant in the plea to admit or deny or confess and
avoid all the material facts
alleged in the combined summons. The
plaintiff needs to know if the oral agreement is denied or admitted
in order to replicate
and to prepare for trial. It is essential for
the plaintiff to know what the defendant’s case is in this
regard, because
if it is the defendant’s case that the parties
never entered into an oral agreement, the defendant will be allowed
during
trial to adduce evidence to that effect; however, if it is the
defendant’s case that the defendant does not have knowledge
of
that agreement, the defendant will not be allowed to contradict any
evidence adduced by the plaintiff of the existence of the
alleged
agreement; and if the defendant admits the existence of the oral
agreement the need to lead evidence in that regard would
be
eliminated.
28.
The defendant in
paragraph 7.2 of the plea pleaded that the plaintiff received medical
treatment at state institutions, such services
were rendered in terms
of the Constitution, and the state was obliged to render them. In
paragraphs 5.1 and 5.2 of the plea the
defendant admits that when the
state is being sued as a defendant the MEC is cited as a defendant
and that in this case the MEC
has been cited as a nominal defendant.
In paragraph 2.1 the defendant notes that he is being sued in a
representative capacity.
In paragraph 3.15 the defendant pleads that
the health professionals who have not been joined in these
proceedings, owe the plaintiff
a duty of care whose content is to
ensure that they do not cause harm to the plaintiff through their
negligent conduct.
29.
The plaintiff avers
that she is unable to ascertain from the plea whether the defendant
is admitting or denying vicarious liability;
whether the defendant
alleges that the relevant individuals acted independently of the
defendant and therefore should be joined
in their own right; and if
they acted independently upon what basis they were engaged or
entitled to render services in such institutions
on behalf of the
defendant. The allegations in the plea mentioned in paragraph 28
above are confusing. They do not comply with
the requirements of
Rules 22(2) and 18(4).
Conclusion
30.
The defendant’s
plea failed to define the issues between the parties and to state the
defendant’s case with precision.
The vagueness in it causes
embarrassment of such a nature that the plaintiff is prejudiced. The
vagueness goes to the roots of
the defences referred to above. It is
excipiable on each and every possible interpretation that could
reasonably be attached to
it. The plea stands to be set aside on
ground that it is vague and embarrassing.
31.
The plaintiff in her
notice of motion has prayed for the defendant’s special plea to
be set aside. However, no grounds have
been stated in the notice of
exception in that regard. Therefore, the special plea stands.
32.
I now deal with the
issue of costs. The plaintiff in her heads of argument has asked for
punitive costs against the defendant. However,
in her notice of
motion she asked for normal costs. Counsel for both parties during
argument agreed that there is no legal basis
for punitive costs award
in this matter. I am inclined to award costs on a party and party
scale.
33.
Counsel for the
defendant asked for Magistrate Court scale costs to be awarded to the
plaintiff if she succeeds on the merits of
the exception,
alternatively,
that the costs be reserved. The defendant in the answering affidavit
has not asked for such scale of costs. Counsel for the defendant
referred me to the case of
Mbhele
v MEC for Health for the Gauteng Province 2016 JDR 2144 (SCA)
.
In that matter the Supreme Court of Appeal refused a claim for
constitutional damages based on the right to rear a child. It allowed
a claim for emotional shock and awarded R100 000.00 for general
damages. It awarded costs of the appeal. It substituted the order
of
the High Court and awarded general damages and costs of the action.
34.
The plaintiff in the
main action is suing the defendant for damages in the sum of R3 555
000.00. The plaintiff’s claim is
based on contract, delict and
the Constitution. Considering the issues to be determined by the
Court in the main action and the
amount claimed, it is my view that
this matter deserves the attention of the High Court. Therefore, the
costs are awarded on a
High Court scale. Regarding the Counsel’s
alternative submission that costs of the exception be reserved, I do
not agree.
This Court is in a better position than a trial Court to
determine the costs of the exception.
Order
35.
Accordingly, the
following order is made:
(1)
The plaintiff’s
exception against the defendant’s plea is upheld.
(2)
The defendant’s plea is set aside.
(3)
Leave is granted to the
defendant, within 20 days of the date of this order, to file an
amended plea.
(4)
The defendant shall pay
the costs of the exception.
MMP
Mdalana-Mayisela J
Judge
of the High Court
Gauteng
Division
(
Digitally
submitted by uploading on Caselines and emailing to the parties)
Date
of delivery:
16 August 2021
Appearances:
On
behalf of the Plaintiff:
Adv M Van Den Barselaar
Instructed
by:
MED Attorneys
On
behalf of the defendant:
Adv MR Latib
Instructed
by:
State Attorney, Johannesburg