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2024
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[2024] ZAFSHC 273
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Sediko v Leroko and Others (2745/2023) [2024] ZAFSHC 273 (5 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 4407/2023
In
the matter between:
DR
THABANG LEROKO
Excipient/First
Defendant
and
MARY
MASABATA SEDIKO
Respondent/Plaintiff
In
re:
MARY
MASABATA SEDIKO
Plaintiff
and
DR
THABANG LEROKO
First
Defendant
DR
A P ANYISHA
Second
Defendant
Neutral
citation:
Sediko v Lereko &
others (Case no 2745/2023)
Coram:
MAHLANGU AJ
Heard:
23 AUGUST 2024
Delivered:
5 SEPTEMBER 2024
Summary
:
Exception – rule 23(1) – Failure to disclose the cause of
action.
ORDER
1.
The exception is dismissed
2.
The first defendant to pay costs on party and party scale B.
JUDGMENT
Mahlangu
AJ
INTRODUCTION
[1]
This is an exception against the plaintiff’s particulars of
claim on the basis that it fails
to disclose a cause of action in the
terms of Rule 23(1) of the Uniform Rules of Court.. This exception
was only noted by the first
defendant. The plaintiff did not remove
the cause of complaint as per the first defendant’s notice,
which precipitated this
application before me. I shall refer to the
parties as they are cited in the main action
[2]
Briefly, the plaintiff issued summons against the first and second
defendants on the basis that
they were both negligent when performing
a laparoscopy operation on her. The plaintiff alleges that the first
defendant negligently
performed the laparoscopy by stitching the
intestine together with the umbilicus. Both the first and the second
defendants owed
the plaintiff reasonable skill, diligence and care as
they are both specialist gynaecologists. The first defendant excepted
to
the plaintiff’s claim in that she did not plead the terms of
the oral agreement that was entered into. Plaintiff submitted
in para
5 of her particulars of claim that an oral agreement was entered into
between herself and the first defendant. Rule 18(6)
provides that a
party which relies upon a contract must state whether the contract is
written or oral, and when, where and by whom
it was concluded.
It is my view that the plaintiff complied with Rule 18(6) in that she
mentioned that the oral agreement
was entered into and that the
material terms of the oral agreement was that the first defendant
would perform the pap smear which,
upon obtaining the necessary
results, resulted in the laparoscopy operation being performed.
[3]
It was further submitted on behalf of the first defendant that the
plaintiff made a legal conclusion
by establishing the causal link
between any action or omission of the first defendant and any loss
sustained by the plaintiff.
I do not agree with this submission. The
plaintiff had to state, chronologically, all the events that led to
the plaintiff’s
use of the colostomy bag as she had a free
faecal matter in her abdomen.
[4]
Further, the first defendant’s other
ground of exception was that the plaintiff failed to establish
a duty
of care in her pleading. In response to this exception, the plaintiff
avers that the first defendant is a specialist gynaecologist,
and the
level of care is one that is naturally expected from a specialist
doctor in his position. The oral contract entered into
between the
plaintiff and the first defendant obliges the plaintiff to fulfil his
mandate with reasonable skill, diligence and
care.
LEGAL
PRINCIPLES
[5]
It is important that I firstly deal with the requisites of pleadings
in terms of rule 18(4). In
terms of this rule, the pleading ‘should
contain a statement of (i) fact, not law, (ii) material facts only,
(iii) facts,
not evidence, and (iv) facts stated in summary form’
and that ‘material facts’ are all facts which must be
proved
in order to establish the ground of claim or defence.
According to rule 18(4) every pleading must contain a clear and
concise statement
of the material facts, preferably in the
chronological order, upon which the pleader relies for his claim,
defence or answer to
any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply to
it. Furthermore
pleadings must be read as a whole and no
paragraph can be read in isolation.
[6]
The object of a pleading is to define issues between the parties. It
is to enable each side to
come to trial prepared to meet the case of
the other and not to be taken by surprise. Pleadings must therefore
be
lucid
and logical and in an intelligible form and the cause
of action or defence must clearly appear from the factual allegations
made.
[7]
In
Trope
v South African Reserve Bank
[1]
McCreath J said the following in respect of pleadings:
‘
Rule 18(4) of the
Uniform Rules of Court provides that every pleading shall contain a
clear and concise statement of the material
facts upon which the
pleader relies for his claim, defence or answer to any pleading, with
sufficient particularity to enable the
opposite party to reply
thereto.
It is, of course, a
basic principle that particulars of claim should be so phrased that a
defendant may reasonably and fairly be
required to plead thereto.
This must be seen against the background of the further requirements
that the object of pleadings is
to enable each side to come to trail
prepared to meet the case of the other and not to be taken by
surprise. Pleadings must therefore
be lucid and logical and in an
intelligible form; the cause of action or defence must appear clearly
from the factual allegations
made
. (Harms Civil Procedure in the
Supreme Court at 263-4. (My emphasis.)
In
Buchner
and Another v Johannesburg Consolidated Investments Co Ltd
[2]
De Klerk J stated as follows:
‘
. . . It is
fundamental to the judicial process that the facts have to be
established. The Court, on the established facts, then
applies the
rule of law and draws conclusions as regards the rights and
obligations of the parties and gives judgement
.
A summons
which propounds the plaintiff’s own conclusions and opinions
instead of the material facts is defective. Such a
summons does not
set out a cause of action. It would be wrong if a Court were to
endorse a plaintiff’s opinion by elevating
it to a judgement
without first scruitinising the facts upon which the opinion is
based.’
[8]
As such, it is clear that the excipient has a duty to persuade the
court that every interpretation
upon which the pleading can
reasonably rely, no cause of action is disclosed.
[9]
The following are two major grounds of exception:
(i)
The pleading fails to disclose a cause of action
or defence;
(ii)
The pleading is vague and embarrassing.
[10]
The onus of showing that a pleading is excipiable rests upon the
excipient. In
Jowell
v Bramwell-Jones and Others
[3]
(
Jowell
)
Heher J summarized the general principles to be borne in mind when
considering exception:
‘
(a)
minor blemishes are irrelevant;
(b)
pleadings must be read as a whole; no paragraph can be read in
isolation;
(c)
a distinction must be drawn between the fact probanda, or primary
factual allegations
which every plaintiff must make, and the facta
probantia, which are the secondary allegations upon which the
plaintiff will rely
in support of his primary factual allegations.
Generally speaking, the latter are matters for particulars for trial
and even then
are limited. For the rest, they are matters for
evidence.
(d)
only facts need be pleaded; conclusions of law need not be pleaded;
(e)
bound up with the last-mentioned consideration is that certain
allegations expressly
made may carry with them implied allegations
and the pleading must be so read.’
[11]
In
Mosothokazi
v Broll Auctions and Sale
[4]
Van Der Linde J similarly and very succinctly set out the principles
applicable to exceptions, as follows:
‘
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.
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.
The third principle is
that an exception on the basis that the pleading is vague and
embarrassing needs to strike at the pleadings
as a whole, and not
only certain paragraphs, before it will succeed.
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.
’
[12]
Finally, in
Ocean
Echo Properties v Old Mutual Life Assurance Company
[5]
Ponnan JA restated the duty of an excipient:
‘
Since these are
proceedings on exception, Old Mutual has the duty as excipient to
persuade the court that upon every interpretation
which the plea can
reasonably bear, no defence is disclosed.
The main purpose of an
exception is to avoid the leading of unnecessary evidence. By the
nature of exception proceedings the correctness
of the facts averred
in the plea must be assumed. Because Old Mutual chose the exception
procedure – instead of having the
matter decided after the
hearing of evidence at the trial – it had to show that the plea
is (not may be) bad in law
.’ (My emphasis.)
[13]
The aforesaid authorities set out the general principles applicable
to pleadings. Counsel for both parties
have also referred me to
several authorities that enabled me to come to make a decision in
this matter. In the present matter,
the excipient’s complainant
is that the particulars of claim do not set out a cause of action. In
McKenzie
v Farmers’ Co-operative Meat Industries
[6]
the Appellant Division defined ‘cause of action’ as
follows:
. . . every fact which it
would be necessary for the plaintiff to prove, if traversed, in order
to support his right to judgement
of the court.
It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary to be proved
.’ (My
emphasis.)
[14]
In
Jowell
it was stated that:
‘
. . . (T)he
plaintiff is required to furnish an outline of its case. This does
not mean that the defendant is entitled to a framework
like a
crossword puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough
edges
not obvious until actually explored 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.’
[7]
[15]
In
Luke
M Thembani and others v President of the Republic of South Africa
[8]
it was stated that:
‘
Whilst exceptions
provide a useful mechanism ‘to weed out cases without legal
merits’, it is nonetheless necessary that
they be dealt with
sensibly. It is where pleadings are so vague that it is impossible to
determine the nature of the claim or where
pleadings are bad in law
in that their contents do not support a discernible and legally
recognized cause of action, that an exception
is competent. The
burden rests on an excipient, who must establish that on every
interpretation that can reasonably be attached
to it, the pleading is
excipiable. The test is whether on all possible readings of the facts
no cause of action may be made out,
it being for the excipient to
satisfy the Court that the conclusion of law for which the Plaintiff
contends cannot be supported
on every interpretation that can be put
upon the facts.’
[16]
It is stated in
McKelvey
v Cowan NO
[9]
that:
‘
It is a first
principle in dealing with matters of exception that, if evidence can
be led which can disclose the cause of action
alleged in the
pleading, that particular pleading is not excipiable. A pleading is
only excipiable on the basis that no possible
evidence led on the
pleading can disclose a cause of action’.
[17]
In
Vermeulen
v Jooste Valley Investments
[10]
it was stated that:
‘
It is trite law
that an exception that a cause of action is not disclosed by a
pleading cannot succeed unless it be shown that ex
facie the
allegations made by plaintiff and any document upon which his or her
cause of action maybe based, the claim is (not maybe)
bad in law
’.
[18]
The prejudice which justifies an exception is if the allegations in
the particulars of claim are of such
a nature that the defendant is
unable to formulate a proper pleading.
DISCUSSION
[19]
The exception test is whether a pleading is vague and embarrassing or
whether an intelligible cause of action
can be ascertained. If the
answer is in the negative, the plaintiff’s claim needs to be
dismissed, but if the answer is in
the positive, the defendants’
exception can be dismissed. It should further be determined whether
the plaintiff’s particulars
of claim have been formulated with
the necessary clarity to enable the first defendant to know what case
to meet. In addition,
pleadings must be read as a whole and no
paragraph can be read in isolation. It has been established that an
exception is procedural
means to avoid the leading of unnecessary
evidence at the trial.
[20]
From a consideration of the particulars of claim and the exception,
the crisp issues for determination are
whether the first defendant
was negligent when performing the laparoscopy operation on the
plaintiff. In para 8 of the plaintiff’s
claim, it is stated
that the first defendant failed to,
in casu
, take further
steps to observe the plaintiff after the operation. She further
alleges that as a result of the negligence of both
the first and the
second defendants, she is using the colostomy bag which causes her
pain, suffering and discomfort and has exhausted
her medical aid.
Further she cannot cope with her daily use of the colostomy bag at
work, which in turn, could result in her losing
her employment. As
stated herein above, the plaintiff need only set out the framework of
its cause of action and not the evidence.
Her cause of action is
based on negligent, evidence will be dealt with during the hearing of
this matter.
[21]
The defendant submitted that, the plaintiff had to plead that
foreseeable harm will be caused and what reasonable
steps should be
taken by the first defendant to avoid such conduct. It is my view
that the first defendant is a specialist doctor
and he should have
been aware of what level of care was reasonably expected from him as
a specialist doctor. It is stated in the
case of Jowell
supra
that
minor blemishes are irrelevant, the framework of the cause of action
is more important.
CONCLUSION
[22]
It must not be forgotten that the object of pleadings is to define
the issues between the parties. In
Odgers Principles of Pleading
and Practice in Civil Actions in the High Court of Justice,
22
nd
Edition at 113, it is stated as follows: ‘The object of
pleadings is to ascertain definitely what is the question at issue
between the parties; and this object can only be obtained when each
party states his case with precision.’
[23]
I have applied the aforementioned tests to the particulars of claim
before me. I have to be persuaded by
the first defendant that the
pleading is excipiable on every interpretation that can be reasonably
be attached to it. I have been
unable to find that the plaintiff’s
claim fails to show the cause of action. The particulars of claim in
my view disclose
a cause of action with sufficient clarity to enable
the first defendant to plead thereto.
[24]
In support of my view, I rely on
MN
v AJ
[11]
where the court held that: ‘while pleadings must be drafted
carefully a court should not read them pedantically nor should
it
over-emphasize precise formalistic requirements: the substance of the
allegations should be properly considered.”
[25]
In all the grounds raised by the first defendant, I am not satisfied
that he has discharged the required
onus of proof for this Court to
uphold the exception. It is trite that costs follow the results and I
do not have any reason to
deviate therefrom.
ORDER
[26]
I therefore make the following order:
1. The exception is
dismissed
2. The first defendant to
pay costs on party and party scale B.
MAHLANGU,
AJ
Appearances
Counsel
for First Defendant/Excipient:
Adv R
Van Der Merwe
Instructed
by:
Whalley
& Van Der Lith Inc
c/o
Alberts Attorneys Inc
20
Van Selm Street
Fitchardspark
BLOEMFONTEIN
Counsel
for the Plaintiff/Respondent:
Adv
N.M Bahlekazi
Instructed
by:
A G
SEFO ATTORNEYS
c/o
MLONZANA ATTORNEYS
12
Reid Street
Westdene
BLOEMFONTEIN
[1]
Troppe
v South African Reserve Bank and Another and Two Other Cases
1992 (3) SA 208
(T) at 210F-H.
[2]
Buchner
and Another v Johannesburg Consolidated Investments Co Ltd
1995
(1) SA 215
(T) at 216H-J.
[3]
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 903A-B.
[4]
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
[2016] ZAPGPJHC 111 paras 4 to 7.
[5]
Ocean
Echo Properties 327 CC and Another v Old Mutual life Assurance
Company (South Africa) Limited
[2018] ZASCA 9
;
2018 (3) SA 405
(SCA) para 9.
[6]
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922 AD 16
at 23
[7]
Footnote 3 at page 913B-G
[8]
Luke
M Thembani and others v President of the Republic of South Africa
[2022]
ZASCA 70
;
2023 (1) SA 432
(SCA) para 14.
[9]
McKelvey
v Cowan NO
1980(4) SA 525(2) at 526D-E.
[10]
Vermeulen
v Jooste Valley Investments (Pty) Ltd
2001 (3) SA 986
(SCA) at 997.
[11]
MN
v AJ
[2011]
ZAWCHC 5
;
2013 (3) SA 26
(WCC) para 24.