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[2021] ZAGPPHC 469
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Sangweni and Another v MEC for Health, Gauteng Provincial Division (26465/2020) [2021] ZAGPPHC 469 (12 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 26456/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Date:
12 July 2021
In
the matter between:
SANGWENI,
ANNA SPHIWE
FIRST PLAINTIFF
MAHLANGU,
MKHOSINI JOHANNES
SECOND PLAINTIFF
And
MEC
FOR HEALTH, GAUTENG PROVINCIAL DIVISION
DEFENDANT
JUDGMENT
KUBUSHI
J,
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 10h00 on 12 July 2021
INTRODUCTION
[1]
The plaintiffs are in this application excepting to the defendant's
special plea on
the grounds that the special plea is vague and
embarrassing and/or misses the allegations necessary to sustain the
defence.
[2]
The defendant has filed a notice of intention to oppose the exception
but has not
taken the matter any further as they have not filed heads
of argument. I deal, therefore, with this matter on the papers filed
by the plaintiffs.
[3]
It was directed that the matter be determined on the papers filed on
Caselines without
oral hearing as provided for in this Division’s
Consolidated Directives re Court Operations during the National State
of
Disaster issued by the Judge President on 18 September 2020.
FACTUAL
MATRIX
[4]
The chronology of events, as set out hereunder, are gleaned from the
affidavit filed
by the plaintiffs in support of the exception.
[5]
In the main action, the plaintiffs are suing the defendant for having
negligently
caused their minor son to suffer a global hypoxic
ischaemic injury to his brain, as a result of which he suffers from
mixed cerebral
palsy secondary to perinatal asphyxia, severe global
developmental delays, epilepsy, intellectual disablement and all the
consequences
thereof.
[6]
Summons herein was duly served on the office of the State Attorney,
Pretoria on 24
June 2020, and on the defendant on 10 July 2020. On 15
February 2021 the defendant served a special plea and plea on the
merits
electronically,
per
email, on the plaintiffs.
[7]
On 18 February 2021 the plaintiffs served a notice in terms of
Uniform Rule 23 (1)
on the defendant, notifying the defendant of
their intention to take exception to the defendant's special plea on
the grounds that
the special plea is vague and embarrassing and/or
misses the allegations necessary to sustain a defence.
[8]
The plaintiffs indicated the grounds upon which they rely on, and the
plaintiffs causes
of complaint as the following:
8.1
In paragraph 1 of the special plea, it is alleged that the plaintiffs
have not complied
with Section 3 of Act 40 of 2002. The defendant,
whilst relying on the plaintiffs' non-compliance, fails to furnish
details in
which respect/s the plaintiffs failed to comply with the
provisions of Section 3 of Act 40 of 2002;
8.2
In paragraph 2 of the special plea it is alleged that the plaintiffs
have not complied with
section 2 (2) of the State Liability Act. The
defendant fails to furnish details in which respect/s the plaintiffs
failed to comply
with the provisions of section 2 (2).
8.3
In paragraph 3 of the special plea the defendant pleads that the
plaintiffs did not comply
with the provisions of section 5 (4) of the
State Liability Act. The defendant fails to furnish details in which
respect/s the
plaintiffs failed to comply with the provisions of
Section 5 (4). Furthermore, section 5 of the State Liability Act does
not contain
a subsection 4 and section 5 deals with the repeal of Act
1 of 1910.
8.4
In the premises the defendant's special plea is vague and
embarrassing alternatively lacks
averments necessary to sustain the
defendant's defence.
[9]
The plaintiffs informed the defendant that unless the defendant
removes the aforesaid
causes of complain within fifteen (15) days
after delivery of the plaintiffs' notice in terms of Uniform Rule 23
(1), the plaintiffs
will deliver an exception to the defendant's
special plea. The defendant did not reply to the plaintiffs’
notice in terms
of Uniform Rule 23 (1) and on 16 March 2021 the
plaintiffs served a notice of exception on the defendant.
[10]
The defendant did not reply to the notice of exception, as well.
The plaintiffs contend
that in the circumstances they are not in the
position to plead to the defendant's special plea.
ARGUMENT
[11]
In contending for the exception to be upheld and that the defendant’s
special plea be struck
out with costs, the plaintiffs make the
following argument in their heads of argument:
[12]
It is contended that an exception may be taken to a pleading on the
grounds that it is vague
and embarrassing if the vagueness and
embarrassment strike at the root of the defence, i.e. if the
plaintiff will be seriously
prejudiced if the allegations remain.
[13]
The plaintiffs contend, further, that it will be seriously prejudiced
in that they do not know
the facts on which the defendant intends to
rely so as to be able to counter them by the filing of a replication,
and the plaintiffs
are, furthermore, seriously prejudiced in their
preparations for trial in that they do not know what facts would have
to be established
or refuted in evidence in order to defeat the
special defences of non- compliance with the statutory provisions
referred to. This
has been demonstrated with reference to each of the
special pleas and the legal provision sought to be relied upon.
Ad
Paragraph 1 thereof
[14]
The defendant pleads that the plaintiffs have not complied with
section 3 of the Institution
of Legal Proceedings against Certain
Organs of State Act 40 of 2002, and that the claim must therefore be
dismissed.
[15]
This section, as argued by the plaintiffs, requires notice of
intended legal proceedings to be
given to an organ of state. What a
claimant must do, and accordingly the facts relevant to the question
whether section 3 has been
complied with, include:
15.1
That notice must be given in writing of the intention to institute
legal proceedings in question.
15.2
Whether or not the organ of state has consented in writing to the
institution of the legal proceedings without
such notice having been
given, or without a compliant notice having been given.
15.3
The notice must be served on the organ of state in accordance with
section 4 (1).
15.4
The notice must be served within six months from the date on which
the claim became due.
15.5
That the debt did not become due more than six months before the date
on which the notice was served on the
organ of state. In this regard
the factual issue arises whether the plaintiffs as creditors had
knowledge of the identity of the
organ of state and of the facts
given rise to the debt, or could have acquired such knowledge by
exercising reasonable care.
15.6
The notice must briefly set out the facts giving rise to the debt.
The notice must briefly set out such particulars
of the debt as are
within the knowledge of the creditor.
[16]
Section 3 (4) (a) provides that "
if
an organ of state relies on a creditor's failure to serve a notice in
terms of subsection (2) (a) the creditor may apply to court
having
Jurisdiction for condonation of such failure."
The
defendant relies upon an alleged failure, in that in paragraph 1 of
the special plea the defendant alleges non-compliance with
section 3,
and pleads that the plaintiffs' claims should accordingly be
dismissed.
[17]
Non-compliance, having regard to the provisions of section 3 (4), is
not a basis for dismissal
of the claim, as the claimant is entitled
to seek condonation, and only if condonation is refused, would a
dismissal of the claim
be competent.
[18]
The allegation of non-compliance is accordingly insufficient to
sustain the defence that the
claim must be dismissed.
[19]
It is well-established that an application for condonation as
envisaged in section 3 (4) may
be brought and granted after
proceedings have already been Instituted.
[20]
Accordingly, in order to know the factual basis on which the
defendant relies for non-compliance,
in order to be able to replicate
to the special plea, and if necessary in order to bring a condonation
application, the plaintiffs
need to know what the primary facts are
upon which the defendant will seek to rely for the legal conclusion
that the plaintiffs
have not complied with section 3.
[21]
Under the circumstances it is submitted that paragraph 1 of the
special plea is undoubtedly vague
and embarrassing, that the
plaintiffs are seriously prejudiced thereby, and that paragraph 1 of
the special plea lacks the allegations
necessary to sustain the
defence and the contention that the claim should be dismissed.
Ad
Paragraph 2 thereof
[22]
In paragraph 2 of the special plea the defendant pleads that the
plaintiff have not complied
with
section 2
(2) of the
State Liability
Act, 20 of 1957
.
[23]
Section 2
(2) provides as follows:
“
The
plaintiff or applicant, as the case may be, or his or her legal
representative must-
(a)
after any court process instituting
proceedings and in which the executive authority of a department
is
cited as nominal defendant or respondent has been issued, serve a
copy of that process on the head of the department concerned
at the
head office of the department; and
(b)
within 5 days after the service of the
process contemplated in paragraph (a), serve a copy of
that process
on the office of the State Attorney operating within the area of
jurisdiction of the court from which the process
was issued."
[24]
The actions which a plaintiff must take, and accordingly the facts
relevant to the question whether
or not there has been compliance
with section 2 (2) Include:
24.1
That a copy of the legal process must be served on the head of the
department concerned at the head office
of the department (the
section does not require personal service);
24.2
That a copy of the legal process must be served on the office of the
State Attorney operating within the
area of jurisdiction of the court
from which the process was issued;
24.3
That a copy of the legal process must be served on the State Attorney
within 5 days after service of the
process on the head of the
department.
[25]
The defendant, without pleading the factual basis for such a
conclusion, pleads that the plaintiffs
have not complied with
section
2
(2), and pleads that the plaintiffs' claims must therefore be
dismissed with costs.
[26]
There is no provision in the
State Liability Act to
the effect that
if
section 2
(2) is not complied with, the legal proceedings must be
dismissed. Under circumstances where there has not been compliance
precisely
in accordance with the provisions of
section 2
(2), what a
court would be called upon to determine is whether there was
substantial compliance in the sense that the purpose or
objective of
section 2
(2) has been achieved, and whether there is any prejudice
to the defendant.
[27]
Section 2
(3) provides that on receipt of the process by the State
Attorney, the State Attorney must without undue delay send a request
to
the head of the department concerned to provide the State Attorney
with written instructions, and must thereafter provide the head
of
department with legal advice on the merits of the matter.
[28]
The combined summons was served on the State Attorney, Pretoria by
the sheriff on 24 June 2020,
before it was served on the head of the
Department of Health. The combined summons was served by the sheriff
on the person in charge
of the head office of the defendant on 10
July 2020. This was good service in terms of Rules of Court.
[29]
The State Attorney gave notice of intention to defend the action, on
behalf of the defendant,
on 17 July 2020, after the combined summons
had been served at the head office of the defendant. The defendant,
represented by
the State Attorney, has delivered a plea on the
merits, in which the allegations in the particulars of claim have
been responded
to. The State Attorney accordingly must have received
instructions from the defendant to defend the action and to plead to
the
particulars of claim in the manner in which the defendant has
pleaded.
[30]
It is not disclosed whether the defendant intends to rely on the fact
that the summons was served
on the State Attorney before it was
served at the defendant's head office as a basis for the alleged
non-compliance.
[31]
Under the circumstances as set out above, it is clear that the second
special plea is vague and
embarrassing, and that the plaintiffs are
seriously prejudiced by the failure of the defendant to plead the
facts upon which it
relies for its legal conclusion of
non-compliance, and that the prejudice to the plaintiffs relate not
only to whether or not a
replication should be filed and what should
be pleaded in such replication, but also in regard to the preparation
for trial and
the identification of the facts which would need to be
proved or rebutted in respect of the second special plea.
Furthermore, the
special plea (in paragraph 2 thereof) misses the
allegations necessary to sustain the defence that the plaintiffs'
claims is unsustainable
and must be dismissed.
Ad
Paragraph 3 thereof
[32]
In paragraph 3 of the special plea the defendant pleads that the
plaintiffs have not complied
with
section 5
(4) of the
State
Liability Act, 20 of 1957
and that the plaintiffs' claims must on
that basis be dismissed with costs.
[33]
There is no section such as
section 5
(4) of the
State Liability Act,
20 of 1957
.
Section 5
of the
State Liability Act reads
as follows:
"
The Crown Liabilities Act, 1910,
is hereby repealed.
"
[34]
Although the defendant in paragraph 3 of the special plea alleges
non- compliances with the provisions
of section 5 (4) of the State
Liability Act, which section does not exist, it is conceivable that
the defendant might have intended
to plead and rely on non-compliance
with section 5 (4) of the Institution of Legal Proceedings against
Certain Organs of State
Act 40 of 2002 (being the Act relied upon in
paragraph 1 of the special plea), and that the defendant might in
future seek to amend
the name of the Act which reference is made in
paragraph 3 of the special plea.
[35]
Section 5 (4) of Act 40 of 2002 provides as follows:
"Any
process by which legal proceedings contemplated in section 3 (1) are
instituted must be issued by the court in whose area
of jurisdiction
the cause of action arose, unless the organ of state in writing
consents to the institution of legal proceedings
in a different
jurisdiction”.
[36]
In the particulars of claim it is alleged that the injury suffered by
the minor child and the
consequent damages were caused by negligence
of the employees of the defendant at the Kwa-Thema Community Clinic
and the Pholosong
Hospital. In paragraph 3.2 of the particulars of
claim it is alleged that these hospitals were under the control and
administration
of the defendant, which the defendant admits in the
plea on the merits. The defendant is the MEC for Health for the
Gauteng Provincial
Government.
[37]
In paragraph 4.2 of the particulars of claim it is alleged that the
nurses and medical practitioners
at the hospitals which are referred
to, were in the employ of the Department of Health of the Gauteng
Provincial Government and
were acting in the course and scope of
their employment. This is admitted in paragraph 3 of the defendant's
plea on the merits.
[38]
Accordingly, there is no basis upon which the defendant could contend
that this action, which
was instituted in the High Court of South
Africa, Gauteng Division, Pretoria and which bears the stamp of the
Registrar of this
court dated 22 June 2020 and is signed by both the
Registrar and the plaintiffs' attorney, was not issued by the court
in whose
area of jurisdiction the cause of action arose.
[39]
Accordingly, it is clear that paragraph 3 of the special plea is
vague and embarrassing in that
the plaintiffs cannot know what facts
or legal provision the defendant seeks to rely upon. Furthermore, the
allegation of non-
compliance with a non-existence section of the
State Liability Act, does
not justify a conclusion that the
plaintiffs' claim must be dismissed with costs.
ANALYSIS
[40]
I am in agreement with the above arguments of the plaintiffs.
[41]
Uniform
Rule 23
(1) stipulates 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.
[42]
In
Giant
Leap Workspace Specialists (Pty) Ltd v Scoin Trading (Pty) Ltd t/a
The South African Gold Coin Exchange
,
[1]
when considering whether a pleading was vague and embarrassing, the
court had the following to say:
“
An
exception that a pleading is vague and embarrassing can only be taken
when the vagueness and embarrassment strikes at the root
of the cause
of action as pleaded. See also in this regard Jowell v Bramwell-Jones
and Others.”
“
If
the defendant knows which claim it must meet, the particulars of
claim cannot be vague and embarrassing, and the exception cannot
be
upheld. This exception covers the instance where, although there is a
cause of action, it is incomplete or defective in the
way it is set
out, resulting in embarrassment to the defendant. At issue is the
formulation of the cause of action, not its validity.”
[43]
It is, similarly, a well-established and trite principle that if a
defendant relies on a particular
statutory provision, she/he must
either specifically refer to it or she/he must formulate her/his
defence sufficiently clearly
to indicate that she/he relies on it. If
she/he contends that there was an illegality or non-compliance with a
statutory provision,
she/he must plead the primary facts which would
justify such a conclusion.
[2]
[44]
The plaintiffs’ submission that the vagueness and embarrassment
in the defendant’s
special plea strikes at the root of the
defence and that they will be seriously prejudiced if the allegations
remain, is correct.
[45]
This is so because, the three defences pleaded in the special plea do
not establish the facts
on which the defendant intends to rely on.
The defences are, therefore, prejudicial to the plaintiffs in that
the plaintiffs will
not be able to counter the defences by either the
filing of a replication or in their preparation for trial. The
plaintiffs do
not know what facts would have to be established or
refuted in evidence in order to defeat the special defences of non-
compliance
with the statutory provisions referred to in the special
plea.
[46]
On these grounds the exception stands to be upheld.
CONCLUSION
[47]
Although in the notice of motion, the plaintiffs seek relief for
either the dismissal of the
special plea or that the defendant be
afforded leave to amend the special plea in terms of Uniform
Rule 28
,
they nevertheless, in the heads of argument pray for the summary
dismissal of the special plea with costs.
[48]
As reasoned in
Giant Leap Workspace
Specialists (Pty) Ltd,
an exception in
terms of Uniform
Rule 23
(1) covers the instance where, although
there is a cause of action, it is incomplete or defective in the way
it is set out, resulting
in embarrassment to the defendant. At issue
is the formulation of the cause of action, not its validity.
[49]
It is, therefore, my view that the special plea ought not to be
struck out at this stage of the
proceedings. The defendant should be
granted an opportunity to amend the special plea.
COSTS
[50]
As is trite costs should be awarded the successful party. The
plaintiffs being successful are
entitled to awarded the costs of this
application.
ORDER
[51]
In the circumstances I make the following order:
1.
The exception is upheld with costs.
2.
The defendant is granted leave to amend the special plea within
fifteen (15)
days of this order.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
[1]
(2014/37464)
[2016] ZAGPJHC 321 (23 November 2016).
[2]
Yannakou
v Apollo Club
1974 (1) SA 614
(A) at 623; P Trimborn Agency CC v
Grace Trucking CC
2006 (1) SA 427
(N) at 430.