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[2019] ZAGPPHC 136
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Government Employees Medical Scheme v Mazibuko (2018/40674) [2019] ZAGPPHC 136 (9 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:NO
(2)
OF INTEREST
TO OTHER JUDGES:NO
(3)
REVISED.
CASE
NO: 2018/40674
9/5/2019
In
the matter between:
GOVERNMENT
EMPLOYEES MEDICAL SCHEME
Excipient
and
MAZIBUKO:
MAVELA AUBREY
Respondent
In
re:
MAZIBUKO:
MAVELA AUBREY
Plaintiff
and
GOVERNMENT
EMPLOYEES MEDICAL SCHEME
Defendant
JUDGMENT
MOKOSE
J
[1]
This
is an opposed exception in which the excipient raises complaints in
which it alleges that the summons lack averments to sustain
a cause
of action and/or renders the particulars of claim vague and
embarrassing.
[2]
The
plaintiff's case is that on 18 March 2015 the plaintiff and the
defendant concluded a written 'GEMS Network Agreement' ("the
Agreement") in terms of which the plaintiff was appointed by the
defendant as a 'participating family practitioner' in order
to render
'covered services' to members of the defendant's scheme. The
plaintiff accepted the appointment which was made on the
basis of a
willing provider concept.
[3]
The
defendant excipiated to the plaintiff's particulars of claim on the
basis that it lacks averments necessary to sustain a cause
of action
and/or that the particulars of claim are vague and embarrassing on
the following grounds:
(i)
an
unsigned version of the agreement was attached to the particulars of
claim;
(ii)
the
plaintiff in his particulars of claim alleges defamation of the
plaintiff by the defendant without setting out the words alleged
to
have actually been used by the defendant;
(iii)
the
plaintiff claims payment of R1 642 603,20 in the form of alleged
damages calculated over a period of three years in the form
of
alleged loss of income without providing any factual or legal basis
upon which the defendant could be held liable in respect
of the
agreement for the plaintiff's claim for loss of income;
(iv)
the
plaintiff claims R23 219,59 for services allegedly rendered without
providing any factual or legal basis upon which the defendant
could
be liable in terms of the agreement.
[4]
It
is trite law that for the purposes of adjudicating an exception, the
facts as alleged in the challenged pleadings must be accepted
as
correct. It is essential that an excipient proves that the pleading
is excipiable on every conceivable interpretation that can
reasonably
be attached to it and the pleadings must be looked at as a whole.
[1]
[5]
The
excipient bears the onus of proving that the allegedly lacking in
sufficient particularity is such as he would be embarrassed
in
pleading thereto. When the particularity pertains to a mere detail,
the defendant's remedy is to utilise the Uniform Rules of
Court and
either plead to the averment made and to obtain the particularity he
requires by means of the discovery in terms of the
Rules of Court or
by means of a request for particulars for trial of those particulars
which are strictly necessary to enable the
defendant to prepare for
trial.
[2]
[6]
Pleadings
are deemed to be vague and embarrassing if when read as a whole, the
pleadings are so unclear and ambiguous that the opposing
party is
uncertain of the case he is required to meet and, materially
prejudiced if he is required to plead in answer thereto.
To
successfully establish an exception based on pleadings being vague
and embarrassing, the excipient must satisfy the court of
the
following, that:
(i)
the
allegation of vagueness and embarrassment must not relate to or be
directed to particular and isolated paragraphs. They must
relate to
the whole cause of action;
(ii)
it
requires the excipient to satisfy the court that the pleadings are so
unclear and ambiguous that the reader thereof would be
unable to
determine a clear and single meaning from the statement; and
(iii)
the
court must be satisfied that on any conceivable interpretation of the
pleading, the excipient could not plead thereto without
being
embarrassed.
[7]
In
respect of an exception based on the failure of the plaintiff to
sustain a valid cause of action, the allegations contained in
the
particulars of claim are deemed to be accurate. The excipient has to
prove that even if all the allegations in the pleadings
are genuine,
they do not amount to the founding of a valid cause of action on any
conceivable interpretation that could reasonably
be attached to the
pleadings.
[3]
[8]
At
the commencement of the matter, counsel for the plaintiff indicated
to the court that the point
in limine
had been abandoned.
The
unsigned agreement
[9]
The
plaintiff avers in his particulars of claim that on 18 March 2015 at
or near Germiston the plaintiff representing himself and
the
defendant duly represented by duly authorised representatives
concluded a written GEMS Network Agreement and attached a copy
thereof. Further averments in the particulars of claim make reference
to the terms and conditions of the Agreement and that the
plaintiff
accepted such appointment.
[10]
Counsel for the defendant is of the view that if the agreement was a
written one as pleaded, a true
copy of the part of it on which
reliance is placed must be annexed and that the document annexed to
the particulars of claim is
not satisfactory and does not support the
averments therein as it is incomplete. In particular, clause 5.1 of
the agreement attached
reads as follows:
“
The
appointment of the participating Family Practitioner shall commence
once this agreement has beeb signed by both parties.
..”
[11]
Counsel
for the plaintiff argued that a notice of intention had since been
delivered to substitute Annexure "A" with a
signed version
of the Agreement. Accordingly, the agreement is pleaded properly as
there is available a letter by the plaintiff
to the defendant dated
15 August 2018 wherein the signed written agreement is identical to
the agreement attached to the particulars
of claim.
[12]
Rule
18(6) of the Uniform rules of Court provides as follows:
"A party who is his
pleadings relies upon a contract shall state whether the contract is
written or oral and when, where and
by whom it was concluded, and if
the contract is written a true copy thereof or of the part relied on
in the pleading shall be
annexed to the pleading·.
[13]
In
the matter on hand, the agreement attached to the particulars of
claim does not bear the signatures of both parties and contains
one
signature, being that of the defendant on the signature page.
Furthermore, the agreement does not identify the 'Participating
Family Practitioner' concerned and all other details required
therein.
[14]
I
am of the considered view that it is not evident
ex
facie
the agreement that the
plaintiff is the 'Participating Family Practitioner' and that the
defendant did appoint the plaintiff in
such a position. The
plaintiff's particulars of claim do not comply with the rules of
court and are therefore vague and embarrassing.
Accordingly, the
attachment of the particulars of claim do not support the averments
and the exception is upheld.
Defamation
allegation
[15]
The
defendant asserts that a plaintiff suing for defamation must in his
pleadings set out the words alleged to have been used. The
plaintiff
avers in the particulars of claim that 'the defendant contacted
patients of the plaintiff and made statements to the
customers of the
plaintiff which entailed, alternatively carried the sting that...·
without setting out the words alleged
to have been used.
[16]
As
such, the plaintiff has failed to allege by who, on behalf of the
defendant, the statements were allegedly made. Furthermore,
the
plaintiff has failed to allege that the persons to whom such
statements were made understood the defamatory nature of the alleged
statements.
[17]
Counsel
for the plaintiff, on the other hand, alleges that the defendant's
assertion results in an erroneous legal conclusion and
that the
plaintiff had need only to plead publication. The court was referred
to the decision in the matter of International Tobacco
Co of SA Ltd v
Wollheim
[4]
where it was held that the old rule as to pleading should be relaxed
to the extent of allowing the pleader to indicate in his declaration
that the words pleaded or more or less those words, or some similar
qualification were used.
[18]
The plaintiff has pleaded as follows:
"13. In addition, and on a
number of occasions during the period of approximately the latter
part of 2015 and the early part
of 2016 the Defendant contacted
patients of the plaintiff and made statements to customers of the
plaintiff which entailed, alternatively
carried the sting that the
plaintiff was submitting irregular claims to the defendant for
payment, alternatively that the plaintiff
acted fraudulently in that
the claims for services not actually rendered, further alternatively
that the plaintiff inflates the
claims which he submitted to the
defendant.”
[19]
It
is essential that particulars of claim are pleaded in such a manner
that when read as a whole, they are not so unclear and ambiguous
that
the opposing party is uncertain of the case it is required to meet,
and becomes materially prejudiced if it is required to
plead in
answer thereto.
[5]
[20]
The
court in the matter of Crots v Pretorius
[6]
said that apart from avoiding surprise the identity of persons
involved is also relevant to enable the defendant to raise
appropriate
defences. The said can be said of the matter
in
casu.
The claim as per the
particulars of claim are vague and embarrassing as the defendant is
unable to examine whether or not the alleged
words are defamatory. As
such, the exception is upheld.
Claim
for loss of income
[21] The
plaintiff claims under claim 3 the sum of R1 642 603,20 as damages
calculated over a period of
three years in the form of alleged loss
of income. In support of such claim, he relies on the defamation
claim and the unlawful
cancellation of the Agreement by the defendant
without pleading any
facta probanda
or establishing any nexus
between the conduct of the defendant and the damages suffered by the
plaintiff. The defendant further
alleges that the terms of the
Agreement do not vest the practitioner with any right to render
services in terms of the Agreement
over a three year period. The
Agreement could be cancelled at any time on 30 days' notice. As such,
the plaintiff's claim which
is calculated over a period of three
years has no foundation.
[22] The
plaintiff was of the view that it had pleaded the nexus between the
damages and the conduct of
the defendant and that the court, in
deciding the exception, must accept as correct.
[23] As
stated above, it is trite law that for the purposes of adjudicating
an exception, the facts as alleged
in the challenged pleadings must
be accepted as correct. Furthermore, it is essential that an
excipient proves that the pleading
is excipiable on every conceivable
interpretation that can reasonably be attached to it. As such, the
pleadings must be looked
at as a whole.
[7]
[24] I am
of the view that the Defendant must plead what it believes is its
defence in light of the principle
that in deciding an exceptionthe
court must accept all the facts pleaded as correct. Accordingly, the
exception is dismissed.
Services
Rendered
[25] The
plaintiff claims, under claim 4, payment of the sum of R23 219,59 as
an alleged outstanding value
of the plaintiff's claims for services
rendered to 'a number of clients'. The defendant is of the view that
the paragraphs in support
of such claim lack averments which are
necessary to sustain a cause of action against the defendant. They
are lacking in particularity
and as such do not comply with Rule
18(4) and are vague and embarrassing.
[26]
The plaintiff averred that he had
attached a schedule to the particulars of claim in which he had
indicated the patient's name and
medical aid details showing that the
clients are members of the defendant. As such, the defendant is not
precluded from pleading
its defence.
[27]
I am of the view, in respect of this
exception, that the Defendant must plead what it believes is its
defence in light of the principle
that in deciding an exception the
court must accept all the facts pleaded as correct. Accordingly, the
exception is dismissed.
[28]
Accordingly, the following order is
granted:
(i) The exception
on grounds 1 and 2 are upheld and paragraphs 4,5, 12, 13, 14, 15, 16,
17, 18 and
19 are hereby struck;
(ii) The exceptions on
ground 3 and 4 are dismissed;
(iii)
The plaintiff is ordered to amend the
particulars of claim within fifteen (15) days of the granting of this
order;
(iv)
The plaintiff is ordered to pay the
defendants' costs of the exception.
[1]
First National Bank of SA Ltd v Perry N.O.
2001 (3) SA 960
(SCA) at
965 C - D
[2]
Jowell v Bramwell-Jones and Others
1998 (1) SA 836
at
902 B - D
[3]
Amalgamated Footwear and Leather Industries v Jordan & Co Ltd
1948 (2) SA 891
(C) at 893
[4]
1953 (2) SA 603
(A) at 614A-B
[5]
Tuckers Land & Development Corporation v Loots 1981(4) SA
260 (Tl 263-264
[6]
2010 (6) SA 512
(SCA) at para 15
[7]
First National Bank of SA Ltd v Perry N.O. (supra)