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[2018] ZAFSHC 157
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Nhassengo and Others v Member of the Executive Council for Health, Free State Province (975/2018) [2018] ZAFSHC 157 (12 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 975/2018
In
the matter between:
VIRIATO
BEN
NHASSENGO 1
st
Plaintiff
VUSI
G
CHAMBISSE 2
nd
Plaintiff
RATHIPE
TRAIVERSE
MOLUPE 3
rd
Plaintiff
JAIME
CHAMBISSE 4
th
Plaintiff
OLGA
ZANDILE
KUNENE 5
th
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, FREE STATE
PROVINCE Defendant
HEARD
ON:
24 AUGUSTUS 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
12 OCTOBER 2018
[1]
This judgement deals with exceptions that have been raised against
particulars of claim delivered by the plaintiffs in the action.
[2]
The first plaintiff is the husband of the deceased. The second
plaintiff is her brother. The third plaintiff is
cited as her
brother-in-law. The fourth and fifth plaintiffs are her father
and stepmother respectively. The defendant
is cited as the
Member of the Executive Council for Health, Free State.
[3]
On/or about 29 September 2016 the deceased was admitted at Bongani
Hospital, Welkom for the purpose of giving birth to an unborn
child.
It is in dispute whether the child had died in utero at that time or
not. In the event that the unborn child
had already died, the
admission was only for the purposes of removing the stillborn child.
Regrettably she developed post-partum
haemorrhage and passed away on
30 September 2016. It is on this basis that the plaintiffs
issued summons against the defendant.
[4]
In broad outline, the allegations made in the plaintiff’s
particulars of claim are to the following effect viz:-
8.1 At all relevant
times hereto:
8.1.1 First Plaintiff was
the husband of the deceased.
8.1.2 Second Plaintiff
was the brother of the deceased.
8.1.3 Third Plaintiff was
the brother-in-law of the deceased.
8.1.4 Fourth Plaintiff
was the father of the deceased.
8.1.5 Fifth Plaintiff was
the stepmother of the deceased.
[5]
This judgement deals with exceptions that have been raised against
particulars of claim delivered by the plaintiffs in the action.
For consideration of ease of reference I will refer to the parties
herein as in the main action.
[6]
The first exception relates to
locus standi
. The
contention is that the plaintiffs have not pleaded sufficient direct
interest for
locus standi
. In essence there are no
factual submission(s) to sustain the claim of
locus standi
.
[8]
The second exception relates to the contention that particulars of
claim as currently pleaded are deficient in that the defendant
is
unable to discern whether the claim is in delict or contact.
Essentially the defendant is of the view that there are no
essential
averments to sustain a claim in delict or contract.
[9]
The main purpose of an exception that a declaration does not disclose
a cause of action is to avoid the leading of unnecessary
evidence at
the trial.
[1]
Counsel for
the defendant relied on and quoted the test laid in Henri Viljoen
(Pty) Ltd v Awerbuch Brothers. In that
matter this court said
that:-
“…
'the
direct interest' required by the Appellate Division decision must be
an interest in the right which is the subject-matter of
the
litigation and is not merely a financial interest which is only an
indirect interest in such litigation.”
[2]
[10]
In
Mars
Incorporated v Candy World (Pty) Ltd
the court emphasized a party instituting legal proceedings must
allege and prove locus standi. Such onus rests on the part
of
the plaintiff.
[3]
This was
not sufficiently set out by the plaintiffs and in accordance with the
decision of the court in
Anirudh
v
Samdei
&
Others
the defendant was entitled to take an exception under Uniform Rule
23.
[4]
[11]
The issue of whether a litigant has sufficient interest to the matter
was dealt with in
Jacobs
v Waks
Botha JA writing for the undivided bench concluded that no hard and
fast rule can be laid down. Each case depends on its
own
facts.
[5]
Although this
issue is a procedural matter, it is also a matter of substance.
[12]
In the first exception the defendant seek to limit the category of
those who can institute a claim against it. This aspect
has
been answered by the Supreme Court of Appeal in the following
manner:-
“
I
can find no general, 'public policy' limitation to the claim of
a plaintiff, other than a correct and careful application
of the
well-known requirements of delictual liability and of the
onus
of
proof. It is not justifiable to limit the sort of claim now under
consideration, as has been offered as one solution, to a defined
relationship between the primary and secondary victims, such as
parent and child, husband and wife, etc. Of course, in determining
limitations a court will take into consideration the relationship
between the primary and secondary victims. The question is one
of
legal policy, reasonableness, fairness and justice, ie was the
relationship between the primary and secondary victims such that
the
claim should be allowed, taking all the facts into consideration. It
is true that in the previous South African cases where
the plaintiffs
have succeeded in damages claims for psychiatric injury, there has
been either a blood or a legal relationship.”
[6]
The
first exception ought to fail.
[13]
Counsel for the plaintiffs pointed out that the second exception has
become moot seeing that the particulars of claim have
been amended.
I agree with him. However, all this was embarked upon after the
defendant has launched the application.
The amended pages have
been filed after the defendant did not object to the application for
amendment. In my view, this move
by the plaintiffs was an
unequivocal admission that their particulars of claim did not contain
clear and concise statement of the
material facts as required.
Thus the pleadings were excipiable because no possible admissible
evidence led on the pleadings
as they stood disclosed a cause of
action. Thus the defendant was unable to plead.
[14]
I will deviate from the general rule that the costs follow the
event. I have explained that part of this application
has been
overtaken by events. In any event each party is partly
successful. It will be appropriate that each party
bears its
own costs.
[15]
The following order is made:-
15.1
The application is dismissed.
15.2
Each party pays its own costs.
_____________
MATHEBULA,
J
On
behalf of applicants: Adv. M C Louw
Instructed
by: McIntyre & vd Post Attorneys
Bloemfontein
On
behalf of respondent: Adv. L Mtukushe
Instructed
by: State Attorneys
Bloemfontein
/roosthuizen
[1]
Barclays
National Bank v Thompson
1989 (1) SA 547
(A) at 553 H
[2]
1953
(2) SA 151
(O) at 169 H
[3]
[1990] ZASCA 149
;
1991
(1) SA 567
(A) at 575 H
[4]
1975
(2)
SA 706
(N) at 708B - E
[5]
[1991] ZASCA 152
;
1992
(1) SA 521
(A) at 534 D
[6]
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA) at 62 I – 63 B