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2024
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[2024] ZAFSHC 290
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Rensburg and Another v Cilliers (1705/2021) [2024] ZAFSHC 290 (20 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
1705/2021
In
the matter between:
ROCHELLE
MARY RENSBURG
1
st
Excipient
CLINTON
KUBIE
2
nd
Excipient
and
DR
JBF CILLIERS
Respondent
In
re
:
Case
no:
1705/2021
In
the matter between:
ROCHELLE
MARY RENSBURG
1
st
Plaintiff
CLINTON
KUBIE
2
nd
Plaintiff
and
DR
JBF CILLIERS
Defendant
CORAM:
JP DAFFUE J
HEARD
ON:
17 MAY 2024
DELIVERED
ON:
20 SEPTEMBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 10H00 on 20 SEPTEMBER
2024.
Introduction
[1]
An obstetrician and gynaecologist is the defendant in
an action
instituted by the plaintiffs. They claim patrimonial loss arising
from their duty to support their minor child. It is
their case that
the child was born consequent upon the defendant’s failure to
carry out a sterilisation procedure on the
first plaintiff.
[2]
The defendant filed a special plea, relying on prescription.
The
plaintiffs filed an exception to the special plea which is opposed.
The
parties
[3]
The first plaintiff in the main action and the first
excipient in the
exception proceedings is Ms Rochelle Mary Rensburg. The second
plaintiff and second excipient is Mr Clinton Kubie.
They are resident
in Bloemfontein and are represented by Adv A Rossouw SC.
[4]
The defendant in the main action and respondent in the
exception
proceedings is Dr JBF Cilliers with his principal place of business
at the Mediclinic, Bloemfontein. He is represented
by Adv ST Farrell
SC.
[5]
In order to prevent confusion, I shall refer to the parties
as in the
main action.
The
pleadings in a nutshell
[6]
The plaintiffs issued summons against the defendant,
claiming damages
in the amount of R5 million, being their alleged joint loss of
patrimony in respect of, or associated with, the
support of their
minor child born on 29 May 2018. Their claim is based on alleged
breach of contract, alternatively delict. The
defendant filed a
special plea, relying on extinctive prescription. He also pleaded
over on the merits. The plaintiffs did not
replicate, but filed an
exception to the special plea. They seek dismissal of the special
plea with costs.
Relevant
factual background as pleaded in the special plea
[7]
The following is a factual background, bearing in mind
the facts
pleaded in the special plea:
a.
the plaintiffs’ action is for the recovery
of damage, being
their alleged joint loss of patrimony in the sum of R5 million in
respect of, or associated with, the support
of the child;
b.
the plaintiffs’ ‘debt’ as
the term is intended by,
interpreted, and applied in
s 12(1)
of the
Prescription Act 68 of
1969
is pure economic loss arising from the first plaintiff’s
alleged wrongful pregnancy with her child;
c.
the plaintiffs allege that the debt arose
from the defendant’s
failure to perform a sterilisation procedure on the first plaintiff
on 22 January 2016, this constituting
a breach of the agreement
between the parties and/or a wrongful and negligent breach of the
defendant’s duty of care;
d.
the defendant’s alleged breach, whether
the cause of action is
one in contract, or in delict, or in both contract and delict,
constitutes a single wrongful act for purposes
of
s 12(1)
of the
Prescription Act and
‘debt’ in terms of that same
subsection;
e.
the plaintiffs’ debt became due in terms
of
s 12
of the
Prescription Act on
the date of the alleged breach of contract, being
22 January 2016, on which date the prospective patrimonial damage was
likely
to eventuate, alternatively on the date on which the child was
conceived on which date damage was in fact incurred in that the
plaintiffs’
damnum
was thereby affected; alternatively,
on the date that either or both the plaintiffs actually incurred any
expenses, costs and/or
patrimonial loss in relation to the diagnosis,
management and/or care associated with, arising from, or in any way
related to the
first plaintiff’s pregnancy;
f.
in the premises the plaintiffs’
debt became due on 22 January
2016, alternatively the approximate date on which the plaintiff
conceived the child, or further in
the alternative the dates on which
the expenses referred to above were actually incurred;
g.
on 30 January 2018 the plaintiffs confronted
the defendant and
alleged that he had failed to perform a sterilisation procedure on
the first plaintiff on 22 January 2016 and
consequently, by no later
than 30 January 2018, the plaintiff’s debt became due in terms
of
s 12(1)
of the
Prescription Act by
which date they had already
incurred expenses pertaining to the child conceived and had knowledge
of the identity of the defendant
as their debtor and the facts from
which their alleged debt arose as is required by and contemplated in
the deeming provisions
of
s 12(3)
of the
Prescription Act;
h
.
the plaintiffs served their summons and particulars
of claim to claim
payment of the debt on 16 April 2021, thus more than three years
after the debt had arisen, alternatively more
than three years after
30 January 2018;
i.
the debt is a debt as described
in
s 11(d)
of the
Prescription Act
which
has a prescription period of three years and consequently, the
plaintiffs’ claim against the defendant has prescribed.
The
exception
[8]
In seeking dismissal of the defendant’s special
plea with
costs, the plaintiffs rely
inter alia
on the following in
their exception filed on 18 January 2023 in terms of rule 23 of the
Uniform Rules of Court:
‘
3.
[A] ‘debt’ as envisaged in the Act means an obligation to
pay money, deliver goods or render services.
4.
Prior to the birth of the child the defendant
had no legal obligation
to pay anything towards the plaintiffs’ child-raising expenses,
because the minor was still a foetus.
5.
But for the birth of the minor child, the
plaintiffs suffered no
contractual and/or delictual damages.
6.
The plaintiffs’ duty to maintain arose
on the date the child
was born.
7.
The defendant’s special plea contains
no averment as to when
the minor was born,
ie
the date on which the debt arose.
8.
In the premises the defendant’s special
plea is bad in law in
that it lacks the aforesaid necessary averment to sustain his special
defence.’
Principles
pertaining to exception
[9]
It is trite
that a charitable test is applied in adjudicating an exception. The
excipient must prove that the pleading is excipiable
on every
interpretation that can reasonably be attached to it, or put
otherwise, that where a plea is the subject of exception,
that no
defence has been made out on all possible readings of the facts
pleaded. Harms JA put it as follows in
Telematrix
(Pty) Ltd v Advertising Standards Authority SA (Telematrix):
[1]
‘
[3]
Exceptions should be dealt with sensibly. They provide a useful
mechanism to weed out cases without legal merit. An over-technical
approach destroys their utility. To borrow the imagery employed by
Miller J, the response to an exception should be like a sword
that
'cuts through the tissue of which the exception is compounded and
exposes its vulnerability'.
[10]
In
H
v Fetal Assessment Centre
[2]
Froneman J cited Harms JA’s aforesaid
dictum
with approval, stating that:
‘
[10]
In the high court the matter was decided on exception.
Exceptions provide a useful mechanism 'to weed out cases without
legal merit', as Harms JA said in
Telematrix
. The
test on exception is whether on all possible readings of the facts no
cause of action may be made out.
It is 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
.
’
The
learned justice proceeded as follows:
[3]
‘
[12]
There is no general rule that issues relating to the development of
the common law cannot be decided on exception, but where
the 'factual
situation is complex and the legal position uncertain' it will
normally be better not to do so.’
The
judgment continued as follows:
[78]
The particulars of claim and the exception based on it do not
traverse an essential part of determining whether a child's claim
may
exist, namely the constitutional injunction that a child's best
interests are of paramount importance in any matter concerning
the
child. Determining that involves both factual and legal
considerations, matters not capable of being decided appropriately
on
exception. This was not the proper procedure to determine the
important factual, legal and policy issues that may have
a decisive
bearing on whether the common law should be developed to allow the
child's claim to be accommodated in the particular
circumstances of
this case.
[79]
In upholding the exception, the high court also ordered the dismissal
of the claim. This was unwarranted.
The
upholding of an exception does not inevitably carry with it the
dismissal of the action. Leave to amend the particulars
of claim
should have been granted.
’
(emphasis added)
[11]
In
Pretorius
and Another v Transport Pension Fund and Another
[4]
the Constitutional Court reiterated the trite principles in the
following words:
‘
[15]
In deciding an exception a court must accept all allegations of fact
made in the particulars of claim as true; may not have
regard to any
other extraneous facts or documents; and may uphold the exception to
the pleading only when the excipient has
satisfied the court
that the cause of action or conclusion of law in the pleading cannot
be supported on every interpretation that
can be put on the facts.
The purpose of an exception is to protect litigants against claims
that are bad in law or against an embarrassment
which is so serious
as to merit the costs even of an exception. It is a useful procedural
tool to weed out bad claims at an
early stage, but an overly
technical approach must be avoided.’
(footnotes
omitted)
[12]
It is
abundantly clear that in order to consider an exception, the court
should accept all allegations of fact pleaded by the party
as true
and correct, unless they are manifestly false. It should not go
beyond the allegations and may not have regard to any other
extraneous facts or documents. If the exception does not serve to
weed out a case or defence without legal merit, it shall not
be
upheld. More recently, Ponnan JA summarised the trite principles
relevant to exceptions in
Tembani
and Others v President of the Republic of South Africa and Another
(
Tembani
)
as follows
:
[5]
‘
Whilst
exceptions provide a useful mechanism 'to weed out cases without
legal merit', 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 recognised 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.’
(footnotes omitted)
[13]
Although the learned justice referred to a particulars of claim in
Tembani
, the same applies in my view to the adjudication of an
exception filed in respect of a plea as
in casu
.
[14]
The
plaintiffs pray that the special plea should be dismissed with costs.
Even if successful, such order is not the appropriate
order to be
made. If the pleading is found to be excipiable, leave should as a
general principle, be granted to the defendant to
file an amended
plea, if so advised. Heher JA made this abundantly clear in
Constantaras
v BCE Foodservice Equipment (Pty) Ltd
[6]
in the following words:
‘
In
an
obiter
dictum
in
Princeps
(Edms) Bpk en ‘n Ander v Van Heerden NO en Andere
1991
(3) SA 842
(T)
at 845 Harms J said that in the Supreme Court an unsuccessful pleader
is given the opportunity to amend his so-called
plea, even when that
plea has been set aside because it does not disclose a defence.
The
rationale
seems
to be that although the defence contained in the pleading may be bad
the
pleading
as such continues to exist
.
In the
Group
Five Building
case
(at 603F-H) Corbett CJ quoted with approval from
Johannesburg
Municipality v Kerr
1915
WLD 35
at
37 in which Bristowe J said that although the quashing of an entire
declaration on exception means that it is an absolute
bar to any
relief being obtained on it, that ‘does not take the
declaration off the file or place the case in the same position
as
though no declaration had been delivered’. Despite the
distinctions between the effects of the striking down of a
particulars
of claim and a plea to which I have earlier referred, it
seems to me that, in principle,
fundamentally
defective pleadings emanating from a plaintiff and defendant should
be dealt with on an equal footing. Since the rule
referred to above
is firmly established in relation to the defective pleading of claims
we should therefore apply it
mutatis
mutandis
to
the flawed pleading of defences
.
(emphasis added)
Evaluation
of the parties’ submissions and the relevant authorities
[15]
Before I
apply the principles pertaining to exceptions to the facts and
consider the submissions of counsel in that regard, I deem
it
apposite to refer to authorities pertaining to prescription. In
Truter
and Another v Deysel (Truter)
[7]
the plaintiff issued summons to claim damages arising from an injury
allegedly sustained as a result of certain medical and surgical
procedures. The question to be answered was whether the plaintiff had
actual or deemed knowledge of the facts from which the debt
has
arisen prior to a certain date. The following
dictum
has been accepted to be a correct statement of the law in numerous
judgments thereafter:
[8]
‘
I
am of the view that the High Court erred in this finding. For the
purposes of the Act, the term 'debt due' means a debt, including
a
delictual debt, which is owing and payable. A debt is due in this
sense when the creditor acquires a complete cause of action
for the
recovery of the debt, that is, when the entire set of facts which the
creditor must prove in order to succeed with his
or her claim against
the debtor is in place or, in other words, when everything has
happened which would entitle the creditor to
institute action and to
pursue his or her claim.’
[16]
The court
continued in
Truter
that ‘a plaintiff’s cause of action is complete as soon
as some damage is suffered, not only in respect of the loss
already
sustained by him or her, but also in respect of all loss sustained
later.’
[9]
Consequently,
the plaintiff’s cause of action was complete and the debt
became due as soon as the first harm was sustained
by him
‘notwithstanding the fact that the loss of his right eye
occurred later.’
[10]
[17]
It is also
necessary to consider the ‘once and for all rule.’ In
Evins v
Shield Insurance Co Ltd (Evins)
[11]
this rule was again confirmed. A plaintiff must as a general
proposition claim all damages flowing from one cause of action,
whether
already sustained or prospective. This applies to damages due
to breach of contract and delictual damages.
[18]
The question for determination is whether the plaintiffs’ debt
fell due
as contemplated in
s 12(1)
of the
Prescription Act when
the
first plaintiff had already knowingly conceived the child and the
plaintiffs had already incurred patrimonial losses associated
with
the unwanted pregnancy of the child as contended for by the
defendant, or only when the child was eventually born of the unwanted
pregnancy as contended for by the plaintiffs.
[19]
Mr Farrell submitted that the eventual birth of the child was no more
than
the manifestation of a probable future loss which has arisen
from an already due single debt. Any claim for damages sustained by
the plaintiffs during the first plaintiff’s pregnancy had
already become prescribed when the action was instituted. He also
emphasised the fundamental error in the plaintiffs’ approach.
The birth of the child is not the wrongful act, unlike as submitted
on behalf of the plaintiffs. The claim cannot be equated with the
widow’s claim in
Evins
due to the death of her husband,
the breadwinner. Having regard to the authorities quoted herein, I
agree with this submission.
[20]
Mr Rossouw
submitted that, based on the analogy of the breadwinner’s death
and the widow’s right to claim damages for
loss of maintenance
at that stage only, relying on
Evins,
[12]
the debt in this instance arose when the child was born alive.
According to him there cannot be any wrongful act if summons is
issued before the birth of the child. This submission misses the
point. Firstly, nobody has suggested that the plaintiffs should
have
instituted action before the birth of the child. Secondly, the
plaintiffs would at all times be entitled to claim when the
debt
became due as pleaded in the special plea. In any of these instances
they would be entitled to claim damages already sustained,
or
prospective, in one cause of action. He also submitted that the
plaintiffs’ claim had arisen only when all the material
facts
which must be proved in order to enable the plaintiffs to sue –
the
facta
probanda
– were present, relying again and in particular on
Evins.
He submitted that the defendant appeared to have adopted a ‘single
cause of action’ theory as opposed to the
facta
probanda
approach, whereas the aforesaid theory was rejected by the court in
Evins.
[13]
I do not agree with Mr Rossouw’s submissions for the reasons
mentioned herein.
[21]
Mr Rossouw
submitted further that prior to the birth of the child the plaintiffs
had no legal duty to maintain the child and consequently,
the
defendant had no legal obligation to pay anything towards the
plaintiffs’ child-raising expenses. A foetus is not vested
with
subjective rights as it was not yet a natural person. In this regard
he
inter
alia
relied on
Road
Accident Fund v Mtati (Mtati
).
[14]
His reliance on the
Mtati
judgment
is wrong. It does not support his submission. In that case the
Supreme Court of Appeal had to decide when the right of
a child
accrued to sue for his prenatal injuries. It held that the right of
action became complete only after the child was born
alive
[15]
.
In casu,
it is not the child who instituted action for prenatal injuries, but
the parents who claim damages in the form of a loss of their
joint
patrimony in respect of the maintenance of the child. Clearly, the
plaintiffs had incurred patrimonial losses before the
birth of child.
This court must accept, based on the authorities quoted earlier, that
the facts pleaded in the special plea are
the truth. Therefore, by
the time that plaintiffs visited the defendant on 30 January 2018,
the child was already conceived and
at best for the plaintiffs’
prospective patrimonial damages were likely to eventuate. The mere
fact that the plaintiffs decided
not to claim any damages incurred
prior to the birth of the child is insufficient for a finding that
the exception should be upheld.
In any event, the costs of
maintenance were reasonably foreseeable damages which should have
been claimed timeously. At best for
the plaintiffs, they were fully
appraised of all relevant facts by 30 January 2018 and should have
instituted action within three
years from this date.
[22]
In
Administrator,
Natal v Edouard
[16]
the plaintiff claimed for ‘wrongful conception’ based on
breach of contract. The claim for the costs of maintenance
of the
child was upheld. Although the principle to be entitled to claim for
damages in the form of maintenance obligations because
of unwanted
birth was adopted in that case, the judgment is not authority in
support of the plaintiffs’ exception
in
casu.
[23]
In
Mukheiber
v Raath and another
[17]
the
plaintiffs claimed compensation for the confinement costs of the wife
and maintenance of the child. Their claim, based on delict,
was
initially dismissed by a single judge in the High Court, but the full
court reversed the judgment. The Supreme Court of Appeal
agreed with
the full court and dismissed the medical practitioner’s appeal.
Although the principle was set, the judgment
does not assist the
plaintiffs at this stage of the proceedings, being exception
procedure. Mr Rossouw relied on paragraph 46 of
this judgment for the
submission that the plaintiffs had no legal duty to maintain prior to
the birth of their child. This paragraph
does not support the
submission, but in any event, I have already dealt with prospective
damages and the once and for all rule
above. I reiterate that for
purposes of adjudicating the exception, the court has to accept the
facts stated in the special plea.
It does not avail the plaintiffs to
allege that their duty to maintain only arose on the date the child
was born, to wit 29 May
2018. If that was indeed the case, the claim
would not have become prescribed. Unfortunately, the authorities are
against such
a proposition.
[24]
I am satisfied that the exception shall be dismissed. There is no
reason why
the general rule pertaining to costs shall not be applied.
The defendant as the successful respondent at the exception stage is
entitled to his costs.
[25]
Consequently, the following order is issued:
1.
The exception is dismissed with costs, including the costs of counsel
on
scale C.
JP
DAFFUE J
On
behalf of the excipients/plaintiffs:
Adv A
Rossouw SC
Instructed
by:
VZLR
Inc
c/o
Du Plooy Attorneys
BLOEMFONTEIN
On
behalf of the respondent/defendant:
Adv
ST Farrell SC
Instructed
by:
MacRobert
Inc
c/o
Neuhoff Attorneys
BLOEMFONTEIN
[1]
2006 (1) SA 461 (SCA) (9 September 2005) para 3.
[2]
2015 (2) SA 193
(CC) (11 December 2014) para 10.
[3]
Ibid
para 12.
[4]
2019
(2) SA 37 (CC) at para 15, relying on
inter
alia Fetal Assessment Centre
and
Telematrix
supra
;
see also
Naidoo
and Another v Dube Tradeport Corporation and Others
2022 (3) SA 390 (SCA) at para 16.
[5]
2023
(1) SA 432
(SCA) para 14.
[6]
2007 (6) SA 338
(SCA) at para 32; and see para 79 of
H
v Fetal Assessment Centre
quoted above.
[7]
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA); see also
Mtokonya
v Minister of Police
2018 (5) SA 22
(CC) paras 36,44-45 & 62-63;
Fluxmans
Inc v Levenson
2017 (2) SA 520
(SCA) para 42.
[8]
Ibid
para 16.
[9]
Ibid
para 22.
[10]
Ibid
para 23.
[11]
1980 (2) 814 (AD).
[12]
Evins
loc
cit
.
[13]
Evins
loc
cit
838H-840G.
[14]
2005
(6) 215 (SCA) para 39.
[15]
Ibid
paras 27-33 for the court’s discussion and para 39 for its
conclusion.
[16]
1990 (3) SA 581 (A).
[17]
1999
(3) SA 1065
(SCA) paras 1-3 & 43-52.