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[2012] ZAGPPHC 112
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Tecmed (Pty) Ltd and Another v Minister of Health and Others (16980/11) [2012] ZAGPPHC 112 (15 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
Case
number: 16980/11
DATE:15/06/2012
In
the matter between:
TECMED
(PTY)
LTD
......................................................................................
FIRST
PLAINTIFF
TECMED
AFRICA (PTY)
LIMITED
............................................................
SECOND
PLAINTIFF
and
MINISTER
OF
HEALTH
..............................................................................
FIRST
DEFENDANT
DEPARTMENT
OF
HEALTH
.................................................................
SECOND
DEFENDANT
DIRECTOR-GENERAL
OF NATIONAL HEALTH
......................................
THIRD
DEFENDANT
MR
KAREL EUO
SMIT
..........................................................................
FOURTH DEFENDANT
JUDGMENT
RAULINGA.
J
[1]
This matter concerns an exception raised by the Defendants to the
Plaintiff's particulars of claim on the grounds that it did
not
disclose a cause of action.
[2]
The Plaintiffs issued summonses claiming under the following causes
of action:
(a)
The actio legis aquillia (pleaded more fully in paragraphs 28 to 33)
alternatively the public law action (pleaded more fully
in paragraphs
34 to 37; and
(b)
The action injuriarium (pleaded more fully in paragraphs 38 to 43)
[3]
The summons was issued on the 15 March 2011 and served on the 16
March 2011 on the Defendants. The Defendants served their notice
of
intention to defend on the Plaintiffs on 8 April 2011, but failed to
deliver a plea thereafter within the prescribed period.
The
Defendants then served the exception on the Plaintiffs on the 27 May
2011.
[4]
Defendants predicate their exceptions in the main on the following:
(a)
that Plaintiffs claims arise from an alleged invalid administrative
action; and that the delictual claims instituted by the
Plaintiffs
are outside the remedies provided by the provisions of the Promotion
of the Administration Justice Act (PAJA). They
, contend that the
principle that the court is obliged to take the pleadings as they
stand for purposes of determining whether
an exception to them should
be upheld is limited in operation to allegations of facts, and cannot
be extended to inferences and
conclusions not warranted by the
allegations of facts. They further argue that the Plaintiffs cannot
seek a private remedy for
the breach of a public law duty. On the
contrary the Plaintiffs advance a number of reasons why the
contentions of the Defendants
cannot be upheld. I do not support the
contentions of the Defendants for the following reasons.
[5]
Exceptions are governed by the provisions of rule 23 of the Uniform
Rules of this court. Rule 23 provides: "where any
pleading............... lacks averments which are necessary to
sustain an action of 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." It must be noted that
the Defendants served their notice of intention to
defend on the 8th
April 2011, but failed to deliver a plea thereafter, within the
prescribed period. The Defendants then served
the exception on the
Plaintiffs on the 27th May 2011. Thereafter, the Defendants did not
take any further steps in the prosecution
of the exception. This
matter is before this court at the instance of the Plaintiffs who
took steps to enrol it. An adverse inference
can therefore be drawn
that the Defendants filed an exception merely for the purpose of
delaying the trial. The aim of an exception
is to avoid the leading
of unnecessary evidence and dispose of a case in whole or in part in
an expeditious and cost effective
manner. A party is therefore not
allowed to raise an exception for the purpose of frustrating its
opponent. Further, an exception
is meant to raise and obtain a speedy
and economical decision of questions of law which are apparent on the
face of the pleadings
- Colonial Industries Ltd v Provincial
Insurance Co Ltd
1920 CPD 627.
It
does not seem to me that the Defendants' exception seeks to achieve
this purpose.
[6]
My reading of PAJA is that it does not exclude the Plaintiffs' common
law remedies. Relevant sections of PAJA provide as follows:
Section
8(1) ( c) : " the court or tribunal, in proceedings for judicial
review in terms of section 6(1), may grant any order
that is just and
equitable, including orders -(c) setting aside the administrative
action and-
(i)
remitting the matter for reconsideration, by administrators, with or
without directions or
(ii)
in exceptional cases - (aa) substituting or varying the
administrative action or connecting a defect resulting from the
administrative
action; or (bb) directing the administrator or
any
other party to the proceedings to pay compensation.
Section
8(2): "7776 court or tribunal, in proceedings for judicial
review" in terms of section 6(3), may grant any order
that is
just and equitable, including orders -
(a)
directing the taking of the decision;
(b)
declaring the rights of the parties in relation to the taking of the
decision;
(c)
directing any of the parties to do, or to refrain from doing, any act
or thing the doing, or the refraining from the doing,
of which the
court or tribunal considers necessary to do justice between the
parties; or
(d)
as to cost".
Premised
on these sections, it is clear that the claims instituted by the
Plaintiffs fall within the parameters of the remedies
contemplated by
PAJA. All the issues raised by the Defendants in the exceptions are
matters which must be dealt with by the trial
court.
[7]
There exists an established rule of practice by our courts that in so
far as there can be an onus on either party on a pure
question of law
it rests upon the excipient who alleges that a summons does not
disclose a cause of action; and he must establish
that in all its
possible meanings no cause of action is disclosed - Amalgamated
Footwear & Leather Industries v Jordan &
Co Ltd
1948 (2) SA
891
(c) at 893. In my view the Defendants have failed to establish
that no cause of action is disclosed when one looks at the pleadings
as a whole. Moreover, pleadings are made for the court, not the court
for the pleadings, it is the duty of the court to determine
what the
real issues „between the parties are and.............. to
decide the case on the real issues - Robinson v Randfontein
Estates
GM Co Ltd
1925 AD 173
at 198.
[8]
In the circumstances I have decided that it is just and equitable
that the parties should be allowed to ventilate their dispute
between
them to determine the real issues by way of trial.
[9]
I make the following order:
(a)
The exception is dismissed with costs.
TJ
RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
FOR
THE PLAINTIFF: Adv M Nowitz
INSTRUCTED
BY: Schindlers Attorneys
FOR
THE DEFEDANTS: Adv V Notshe SC Adv N Makhubela
INSTRUCTED
BY: Maponya Ledwaba Inc HEARD ON: 6 December 2011
DATE
OF JUDGMENT: 15 June 2012