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[2019] ZAECBHC 13
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Gxigxi v Mec for Health, Eastern Cape Provincial Government (664/2017) [2019] ZAECBHC 13 (19 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH
COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CASE NO.: 664/2017
In
the matter between:
LINDELWA
GXIGXI
Plaintiff/Respondent
and
MEC
FOR HEALTH, EASTERN CAPE
PROVINCIAL
GOVERNMENT Defendant/Excipient
EX-TEMPORE
JUDGMENT
MBENENGE
JP
[1]
This is an exception taken against the plaintiff’s particulars
of claim on the
ground that it is vague and embarrassing. For
the sake of convenience I shall continue using the same appellations
by which
the parties have been cited in the action which is the
subject of the exception.
[2]
The action is for recovery of damages. The plaintiff is suing
in her personal
and representative capacities as natural mother and
guardian of her daughter, A[..], who is alleged to have been born
with severe
and permanent eschemic encepalopathy and suffering from
severe and permanent quadriplegic and spastic cerebral palsy. The
defendant is sued in its official capacity on the basis that it is
statutorily liable for the acts and omissions of employees of
the
Department of Health in the Eastern Cape Provincial Government.
[3]
Seven causes of complaint are raised in support of the contention
that the particulars
of claim is vague and embarrassing. All
the complaints were persisted in when the exception was being heard
yesterday.
[4]
Before dealing with each of these causes of complaint it becomes
necessary for one
to remind oneself of the legal principles
applicable to exceptions, especially in so far as they are relevant
in this matter. Much
as a party has to plead with sufficient
particularity the material facts upon which she or he relies for the
conclusions of law
she or he wishes the court to draw from these
facts,
[1]
the plaintiff is
required to furnish an outline of its case. The outline does
not entitle the defendant to a framework like
a cross-word puzzle in
which every gap can be filled by logical deduction.
[2]
In the
Jowell
case the Court went on to say:
“
The
outline [of the plaintiff’s case] may be asymmetrical and
possess rough edges not obvious until actually explained 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.”
[3]
[5]
The principles applicable to an exception founded on the contention
that the summons
is vague and embarrassing were aptly stated by Van
der Linde J in
Mosothokazi
Share Trust & Others v Broll Auctions and Sale (Pty) Ltd &
Another; In re: v Broll Auctions and Sale (Pty) Ltd
& Another v
Mosothokazi Share Trust & Others
[4]
as follows:
“
[4]
.… The first principle is that exceptions are there to weed
out unmeritorious causes,
whether claims or defences. They are
not there to exact perfection in pleading.
[5]
The second principle is that in considering whether a pleading is
excipiable, the
pleading must be viewed from the perspective of every
reasonable interpretation that it can bear. Unless thus viewed
the
pleading remains vague and embarrassing, the exception cannot
succeed.
[6]
The third is that an exception on the basis that the pleading is
vague and embarrassing
needs to strike at the pleading as a whole,
and not only certain paragraphs, before it will succeed.
[7]
The fourth principle is that a plaintiff need only set out the
framework of its cause
of action in its particulars of claim;
evidence is not required to be pleaded.”
[5]
[6]
It is also trite law that even if a pleading is vague, in the sense
that the pleading
is either meaningless or capable of more than one
meaning, the court must still undertake a qualitative analysis of
such embarrassment
as the excipient can show is caused to him or her
by the vagueness complained of. In each case an
ad
hoc
ruling must be made as to whether the embarrassment is so serious as
to cause prejudice to the excipient were she or he to be compelled
to
plead to the pleading in the form to which she or he objects.
[6]
[7]
Before turning to consider the defendant’s objections more
closely, I should
place it on record that the particulars of claim is
not a model of perfection, both in form and substance. However,
as already
pointed out that is not the test.
[8]
In paragraph 4 of the particulars of claim, the plaintiff alleges
that during her
pregnancy in 2009 she regularly visited the clinic in
East London and all examinations and tests carried out in respect of
herself
and her unborn foetus indicated that she and her foetus were
healthy and that the pregnancy was proceeding normally. This,
so the complaint goes, is alleged without the plaintiff clarifying
which clinic in East London she visited, the dates on which
she
visited the clinic and what examinations and tests were carried out
in respect of herself and her unborn foetus.
[9]
It is clear from a benevolent reading of the particulars of claim
that the failure
to exercise a duty of care and the negligent conduct
complained of were meted out at the hospital where the plaintiff gave
birth,
and not elsewhere. The impugned part of the particulars
of claim is headed “
THE
BACKGROUND
”.
The introduction of irrelevant matter into a summons may make
it vague and embarrassing, but the pleading of irrelevant
matter as
history does not.
[7]
[10]
The first ground of the exception is thus unsustainable.
[11]
The second complaint is that there is a contradiction between the
allegation that the plaintiff
and her foetus were healthy and that
alleged in paragraph 4.4, where it is stated that the defendant’s
employees and staff
were causally negligent “
in failing to
conduct adequate, proper and regular pre-partum monitoring of the
foetal wellbeing
.”
[12]
I have already found that the allegation concerning attendance at a
clinic is, upon a benevolent
reading of the particulars of claim,
background information which constitutes irrelevant history and thus
not offensive as to render
the particulars of claim excipiable and
deserving of being set aside in its entirety. The cause of
action relates to the
events of 30 November 2009 when the plaintiff
is said to have given birth and not to “
her pregnancy in
2009
”.
[13]
The third complaint concerns the reference, in the particulars of
claim, to “
Hospitals
” instead of “
Hospital
”.
This complaint which is founded on a clear grammatical error
need detain us no further. It is plain from a
reading of the
impugned particulars of claim that the plaintiff gave birth, at one
hospital, and not otherwise. That hospital
is Frere Hospital,
East London. Mr
Pitt
, counsel for the defendant, was
hard put to explain how the use of the plural instead of a singular
noun in the context of this
case embarrasses or prejudices his client
in any way.
[14]
I now turn to consider the fourth and fifth causes of complaints. As
far as I could have
ascertained, the plaintiff is also criticised for
alleging that the defendant was causally negligent in the respects
alleged without
having demonstrated how, for instance, the omissions
caused or resulted in A[..]’s condition.
[15]
It is indeed trite law that the plaintiff must allege in the
pleadings (and prove at trial) a
causal connection between the
negligent act relied upon and the damages suffered.
[8]
[16]
Upon a reading of both paragraphs 12 and 13 of the particulars of
claim, no allegation is made
that the damages suffered resulted from
the negligent conduct complained of. Instead, the plaintiff has
merely alleged that
A[..]’s condition resulted from the
defendant’s breach of a legal duty.
[17]
Ordinarily, this cause of complaint would properly have founded a
contention that the summons
lacks averments necessary to sustain a
cause of action. However, to the extent that there is a defect
or incompleteness in
the manner in which the cause of action is set
out
[9]
and strikes at the
formulation of the cause of action, with resulting embarrassment and
prejudice to the defendant, the summons
is excipiable. The
defendant would clearly be prejudiced if it were to plead to the
particulars of claim; absent averments
necessary to sustain a cause
of action, the issues are not triable and any evidence that were to
be led to link the negligence
to the damages suffered would be
irrelevant.
[18]
In the sixth instance the plaintiff is criticized for having
referred, in support of the claim
for loss of earnings or loss of
earning capacity, to A[..]’s parents’ level of education
and their respective earning
capacities, without an allegation having
been made of the parents’ occupation, level of education and
income earning ability.
In my view, it is possible for the
defendant to plead and deny, if so advised, being liable to the
plaintiff’s future
loss of earnings or loss of earning
capacity, for the reasons alleged or at all and thus put the
plaintiff to the proof thereof.
The information that is said to
be lacking could be obtained under rule 21 of the Uniform Rules of
Court.
[19]
The last cause of complaint is that the plaintiff has made reference
to A[…] as having
suffered a significant reduction in her life
expectancy, without alleging what A[…]’s life expectancy
is or by how
much it has been reduced or the basis upon which it has
been reduced. Here, too, the defendant could, if so advised,
deny
that there is a reduction in A[…]’s life
expectancy, without, in so doing, suffering any prejudice.
[20]
The fourth and fifth causes of complaint dealt with above are, in my
view, legitimate for the
aforementioned reasons. To that
extent, the exception must be upheld. There is no reason why
costs should not follow
the result.
[21]
In the result, I make the following order:
(a)
The exception succeeds only in so far as it is contended therein that
the plaintiff’s
particulars of claim does not establish a
causal link between the alleged negligence and the damages allegedly
suffered.
(b)
The plaintiff is granted leave to amend the particulars of claim so
as to remove the shortcoming
referred to in paragraph (a) above,
within 15 days from date of service of this order on the plaintiff,
failing which the defendant
is, on these papers duly amplified as may
be necessary, granted leave to apply for the dismissal of the
plaintiff’s action.
(c)
The plaintiff shall pay the costs of the exception.
_____________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the plaintiff/respondent
:
S
Nzuzo
Instructed
by
: M T Klaas Attorneys
East
London
C/o
Potelwa & Co
King
Williams Town
Counsel
for the defendant/excipient
:
D
Pitt
Instructed
by
: Smith Tabata Attorneys
King
Williams Town
Date
heard
: 18 June 2019
Date
judgment delivered
: 19 June
2019
[1]
Trope v
South African Reserve Bank & Another and Two Other Cases
[1993] ZASCA 54
;
1993 (3) SA 264
(A) (
Trope
).
[2]
Jowell
v Bramwell-Jones & Others
1998 (1) SA 836
(WLD) at 913 F (
Jowell
).
[3]
Id at 913F-G.
[4]
Mosothokazi
Share Trust & Others v Broll Auctions and Sale (Pty) Ltd &
Others; In re: v Broll Auctions and Sale (Pty)
Ltd & Another v
Mosothokazi Share Trust & Others
(29772/2015) [2016] ZAGPJHC 111 (13 May 2016).
[5]
Id at paras 4 to 7.
[6]
Lockhat
& Others v Minister of the Interior
1960 (3) SA 765
D at 777 A-E.
[7]
Du
Plessis v Van Zyl
1931 CPD 439
at 442.
[8]
Minister
of Police v Skosana
1977 (1) SA 31 (A).
[9]
Liquidators
Wapejo Shipping Co Ltd v Lurie Bros
1924 AD 69
at 74;
Scheepers
v Krog
1925 CPD 9
at 11;
Cilliers
v Van Biljon
1925 OPD 4
;
Lockhat
above
n 6 at 777E;
Trope
above
n 1 at 268F.