SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 3600/2024
In the matter between:
R[…] O[…] K[…] Plaintiff
and
SALEIGH ADAMS First Defendant
THE UNIVERSITY OF CAPE TOWN Second Defendant
MEC FOR HEALTH: THE WESTERN CAPE Third Defendant
DEPARTMENT OF HEALTH AND WELLNESS
Bench: Vivier, P AJ
Heard: 30 August 2024
Delivered: 18 October 2024
This judgment was handed down electronically by circulation to the parties'
representatives via email and release to SAFLII. The date and time for ha nd-down is
deemed to be 10h00 on Friday 18 October 2024.
JUDGMENT
VIVIER, AJ:
Introduction
[1] The Plaintiff was at all material times a post graduate student at the Sec ond
Defendant, the University of Cape Town ( “the University”). She was employed
by the Western Cape Department of Health and Wellness ( “the Department”)
as a Registrar in the Department of Surgery (Plastic Surgery) at Groote Schuur
Hospital.
[2] The Plaintiff alleges that at the time of the alleged incident as referred to in
paragraph [3] below –
[2.1] the First Defendant was a Professor of Plastic Surgery and employed
by the University as an Associate Professor: Head of Department -
Plastic and Reconstructive Surgery;
[2.2] alternatively, the First Defendant was employed by the Department as
a Specialist Plastic Surgeon and Acting Head of the Department of
Plastic and Reconstructive Surgery at Groote Schuur Hospital;
[2.3] in the further alternative, the First Defendant was e mployed by both the
University and the Department.
[3] The Plaintiff alleges that on or about 3 March 2021, she was raped by the Firs t
Defendant when she attended at his office at the Hospital. She instituted an
action against (a) the First Defendant , (b) the University and (c) the Third
Defendant, being the MEC for Health: Western Cape Department of Health and
Wellness, for damages suffered as a result of the alleged rape incident (“the
incident”).
[4] The University raised an exception to the Plaintiff’s Particulars of Claim, on the
basis that it lacks averments to sustain a cause of action, alternatively is vague
and embarrassing.
[5] The Thi rd Defendant also raised an exception to the Plaintiff’s Particulars of
Claim, but only on the basis that it is vague and embarrassing.
[6] The Plaintiff’s main cause of action against the University and the Department,
is based on their vicarious liability for the delict committed by their employee,
the First Defendant. I shall for convenience henceforth refer to the University
and the Department jointly as “the Defendants”.
[7] The Plaintiff’s alternative cause of action against the Defendants is based on
the breach of a legal duty which the Defendants owed to the Plaintiff.
[8] The Plaintiff described the nature of this duty as follows in paragraph 10 of the
Particulars of Claim:
“10. The second and third defendants and their employees, acting within the
course and scope of their employment, were subject to a legal duty to
ensure that employees, alternatively students, including the plain tiff,
were not subjected to sexual and gender -based violence, which duty
included (without limitation) the following obligations:
10.1 To ensure the common law rights of persons are respected and
protected in respect of physical integrity.
10.2 To respect, protect, promote and fulfil the rights encapsulated in
the Bill of Rights in order to prevent gender -based discrimination
and to protect the dignity, freedom and security of women.
10.3 To take all reasonable steps to prevent any form of gender -
based violence to prevent the commission of a rape, which
constitutes a humiliating, degrading and brutal invasion of the
privacy, dignity and the person of a victim.
10.4 To ensure that persons are not subjected to any kind of
physical, mental or emotional assault and not be subjected to any
cruel inhuman or degrading treatment.
10.5 To ensure that persons are not be subjected (sic) to any form of
sexual violation of any kind whatsoever.
10.6 To take all reasonably necessary measures to ensure that
persons were not placed at risk by being subjected to any form of
sexual abuse.” (Emphasis provided.)
[9] The Plaintiff described the basis of this legal duty as follows in paragraph 11 of
the Particulars of Claim:1
“The aforesaid legal duty arose from the legal convictions of the communit y
arising (without limitation) and specifically from the fact that the defendants
accepted that they had a duty to prevent any acts of gender -based violence
as dictated in their respective sexual misconduct policies and codes of
conduct relating to gender-based violence.”
[10] In paragraph 12 of the Particulars of Claim, the Plaintiff alleges that the incident
occurred –
“[A]s a result of the failure of second and third d efendants and their
employees, acting within the cou rse and scope of their employment to
perform such aacts as were necessary to discharge the aforesaid legal duty,
including (without limitations) the acts contemplated in paragraph 10 above.
[11] The Particulars of Claim do not contain any allegation with regard to what
specific acts the Defendants and their employees could and should have
1 In paragraph 11 of the Particulars of Claim.
performed, but failed to perform, in order to discharge the legal duty they owed
to the Plaintiff , which would have prevented the First Defendant from
committing the rap e. Simply put, the Plaintiff failed to allege how the
Defendants breached the legal duty that they owed to the Plaintiff.
[12] The Plaintiff merely relie s on the Defendants’ general obligations as described
in paragraph 10 of the Particulars of Claim, in relation to the nature and extent
of the Defendants’ legal dut y. As is apparent from the Plaintiff’s description of
these obligations, as quoted in paragraph [8] above, the y are of general
application and have a wide ambit.
[13] With regard to the element of fault, the Plaintiff relies on –
[13.1] the following allegations in paragraph 14 of the Particulars of Claim:
“A reasonable person in the position of second and third defendants
and of its employees, acting with the course and scope of their
employment, would have per formed such acts as were necessary to
discharge the aforesaid legal duty, including (without limitation) the acts
contemplated in paragraph 10 above.”
[13.2] the following conclusionary allegation in paragraph 15 of the Particulars
of Claim:
“In the premises, the incident was negligently caused by the second
and third defendants.”
[14] Again, the fundamental difficulty with the Particulars of Claim is that the reader
does not know in what respects the University and/or the Department was
negligent.
[15] The University gav e notice in terms of rule 23(1) of its intention to raise an
exception against the Particulars of Claim on the basis that it failed to disclose
a cause of action, alternatively is vague and embarrassing, and that the Plaintiff
should remove the cause of th e complaint within the prescribed period of 15
days.
[16] The cause of the complaint was set out as follows in the rule 23(1) notice:
“4. The plaintiff has failed to allege the specific omissions by the second
and third defendant – as separate and distinct part ies – and their
respective employees, acting in the course and scope of their
employment, which could have prevented the incident occurring.
5. The allegations made by the plaintiff in paragraph 12 of the Particulars
of Claim … are not sufficient to estab lish a breach of any legal duty
owed by the second defendant, as alleged by the plaintiff, and the
Particulars of Claim do not accordingly disclose a cause of action,
alternatively are vague and embarrassing and the second defendant is
prejudiced in pleading thereto.” (Emphasis provided.)
[17] The Plaintiff failed to remove the University’s cause of complaint. The
University accordingly filed an exception on the basis as set out in the rule
23(1) notice.
[18] The Department also raised an exception against the Particulars of Claim on
the basis that it is vague and embarrassing, for one or more of five reasons. In
its practice note, the Department abandoned three of these reasons, and the
remaining reasons are as follows:
“5.4 The allegedly unlawful conduct (the mann er in which third defendant
and/or the unidentified employees acting in the course and scope of
their employment omitted to act t o discharge the pleaded duty of care)
are not particularised; and
5.5 The allegedly negligent acts or omissions (what the thir d defendant
and/or the unidentified employees acting in the course and scope of
their employment are alleged negligently to have failed or omitted to
do) are not particularised.”
Discussion
[19] At the hearing of the matter, Ms M O’Sullivan SC, together with Ms M
Maddison, appeared for the University, Mr J van der Schyff for the Department
and Mr D Maartens of Maartens & Le Roux Attorneys for the Plaintiff.
[20] Ms O’Sullivan contended that the allegations contained in paragraph 12 of the
Particulars of Claim, as qu oted in paragraph [10] above, are not sufficient to
establish a breach of any legal duty owed by the University, as alleged by the
Plaintiff, and therefore a cause of action is not disclosed in the Particulars of
Claim. Ms O’Sullivan contended, in the alternative, that the Particulars of Claim
is vague and embarrassing.
[21] I disagree with the first-mentioned contention.
[22] It is trite th at in determining an exception on the basis that a pleading fails to
disclose a cause of action, a court should avoid an over -technical approach
because it destroys the usefulness of the exception procedure, which is to
weed out cases without legal merit. Moreover, the excipient is required to show
that upon every interpretation that the pleading in question can reasonably
bear, no cause of action is disclosed.2
[23] In my view the Plaintiff has pleaded the bare bones of its main and alternative
causes of action.
[24] With regard to the vicarious liability 3 of the University and the Department for
the First Defendant’s alleged unlawful conduct, the Plaintiff avers that –
[24.1] the incident occurred when the Plaintiff attended the First Defendant’s
2 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ) at 374G; Erasmus: Superior Court
Practice, 2nd Edition by D E van Loggerenberg, at D1 Rule 23-2.
3 Which the Plaintiff described as “affirmative wrongful act”.
office at the Groote Schuur Hospital; and
[24.2] the First Defendant at all material times acted within the course and
scope of his employment with the Unive rsity, alternatively the
Department.
[25] With regard to the cause of action based on the breach of a legal duty, the
Plaintiff alleges that –
[25.1] the University and the Department, and their employees, acting within
the course and scope of the ir employment, were “subject to a legal
duty” to ensure that employees, alternatively students, including the
Plaintiff, were not subjected to sexual and gender -based violence,
which duty included the obligations as described in paragraphs 10.1 to
10.6 of the Particulars of Claim;
[25.2] this legal duty arose from the legal convictions of the community and
from the facts as alleged in paragraph 11 of the Particulars of Claim;
[25.3] the incident occurred as a result of the failure of the University and the
Department, and their employees, acting within the course and scope
of their employment, to perform such acts as were necessary in order
to discharge this legal duty, which steps included (without limitation) the
acts contemplated in paragraph 10 of the Particulars of Claim;
[25.4] the inciden t was “wrongfully caused” by the University and the
Department;
[25.5] the incident was “negligently caused” by the University and the
Department.
[26] However, as stated in paragraphs [1 1] and [1 2] above, the Plaintiff failed to
allege what the steps are that each Defendant could and should have taken,
but failed to take, in order to prevent the incident . The allegations contained in
paragraph 12 of the Particulars of Claim begs the question : What exactly the
Defendants and their employees should have done in order to prevent the
incident. The Particulars of Claim contains no particularity in this regard.
[27] It is trite that a statement is vague if it is either meaningless, or capable of more
than one meaning. Simply put, the reader must be unable to distil from the
statement a clear, single meaning.4
[28] The basic requirement is that the defendant must have a clear enough
exposition of the plaintiff’s case to enable it to take instructions and file an
adequate response to the claim, in the form of a plea.5
[29] A plaintiff has a duty to provide sufficient particularity in the Particulars of Claim
to convey to the defendant and the court, with reasonable distinctiveness, what
case the defendant is called upon to meet.6
[30] In Dharumpal Transport (Pty) Ltd v Dharumpal ,7 the Court stat ed the
following with regard to this duty:
“The object, of course, of all pleadings is that a succinct statement of grounds
upon which a claim is made … shall be set forth shortly and concisely; where
a statement is vague, it is either meaningless, or capa ble of one of more than
one meaning. It is embarrassing in that it cannot be gathered from it what
ground is relied on , and there fore it is also something which is insufficient in
law to support in whole or in part the action or defence …” 8
[31] In Lockhat and Others v Minister of the Interior,9 the Court held as follows in
this regard:
4 Venter and Others NNO v Barritt ; Venter and Others NNO v Wolfsberg Arch Investments 2
(Pty) Ltd 2008 (4) SA 639 (C) at 644, par 11; Erasmus, supra, Rule 23-13.
5 Absa Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (WLD) at 421I-J; Venter
v Barritt, supra, at 645, par 15.
6 Wilson v South African Railways & Harbours 1981 (3) SA 1016 (CPD) at 1018G-1019A.
7 1956 (1) SA 700 (A) at 705D.
8 This passage was quoted in Jowell v Bramwell -Jones and Others 1998 (1) SA 836 (WLD) at
899D-E, and referred to with approval in Venter v Wolfsberg Arch Investments, supra, at par 12.
9 1960 (3) SA 765 (D) at 777.
“If an exception on the ground that certain allegations are vague and
embarrassing is to succeed, then it must be shown that the defendant, at any
rate for the purpose of his p lea, is substantially embarrassed by the
vagueness or lack of particularity. … The object of all pleadings is that a
succinct sta tement of the grounds upon which a claim is made or resisted
shall be set forth shortly and concisely; and where such statement is vague, it
is either meaningless or capable of more than one meaning. It is
embarrassing in that it cannot be gathered from it what ground is relied upon
by the pleader.” (Emphasis provided.)
[32] In Absa Bank Ltd v Boksburg Transitional Local Council ,10 the following
was found with regard to whether lack of particularity would render a pleading
vague and embarrassing:
“I am not conv inced that the third party is embarrassed in the sense which is
required for a successful exception. It is true that, if a plai ntiff’s pleading is
seriously vague, it is wrong to blatantly say that a defendant is able to plead,
even if it is then only a general denial. Once it is not such a flagrant
fundamentally defective situation, the omission of detail will still either create
vagueness to the extent that the other party does not adequately know what
the plaintiff’s case is or, alternatively, the case w ill fall outside that deficient
category.” (Emphasis provided.)
[33] In Standard Bank v Hunkydory Investments (No 1) ,11 the Court stated that
prejudice to a litigant faced with an embarrassing pleading lies ultimately in an
inability to prepare properly to meet an opponent’s case. In Levitan v New
Haven Holiday Enterprises CC ,12 the Court stated that although inability to
produce an exception-proof plea is not the only or even the most important test
for prejudice, a defendant is prejudiced if he is unable to ple ad specifically to
Particulars of Claim.
10 Supra, at 421I.
11 2010 (1) SA 627 (CPD) at par 10. See also Trobe v South African Reserve Bank 1992 (3) SA
208 (T) at 211B-D.
[34] Mr Maartens for the Plaintiff attempted to explain and justify this lack of
particularity on the following basis – when the Plaintiff’s action was instituted,
the Plaintiff and her legal representatives did not (and still do not) have any
knowledge of what the “inner workings“ of t he Defendants required of them,
and their employees, w ith regard to the steps that were (or should have been)
implemented in terms of their respective policies and codes of conduct, relati ng
to gender -based violence. It would therefore amount to speculation and
guesswork on the part of the Plaintiff as to “what ha ppened in the inner
workings” of the Defendants, and to plead the particularity as contended for by
the Defendants . Mr Maartens contended, by implication, that the Defendants
must know what these measures are and should therefore be able to plead to
the ca se advanced in the Particulars of Claim , notwithstanding the lack of
particularity thereof.
[35] These contentions are misconceived. The Plaintiff cannot, in answering to an
exception, rely thereon that, apart from the allegations in the summons (or
Particulars of Claim), the defendant on his own knowledge knows what case he
is required to meet. In the majority of cases the defendant does know, yet this
does not disentitle him to raise an exception successfully where the plaintiff’s
case is not conveyed to him by the summons (or Particulars of Claim ) with
reasonable distinctness.13
[36] The Plaintiff alleges that the act was perpetrated by the First Defendant in his
office at the University . It is difficult to imagine what the reasonable and
practical steps are14 that the University, or the Department for that matter, could
and should have taken, which would have prevented the First Defendant from
committing this alleged abhorrent deed. Although it is an interesting but
speculative exercise, it illustrates the inherent vagueness of the Plaintiff’s
pleaded case. This deficiency is further underscored by the fact that , according
to the Plaintiff, the acts that the Department failed to perform to prevent the
12 1991 (2) SA 297 (C) at 298H.
13 Superior Court Practice, supra, Rule 23-14.
14 Media 24 Ltd and Another v Grobler 2005 (6) SA 328 (SCA) at par 71.
incident, are exactly the same as those that the University failed to perform.
[37] As pointed out by Mr Van der Schyff for the Department, it is possible for the
Department to plead a bare denial to the Plaintiff’s general allegations with
regard to the acts which the Defendants’ employees failed to perform. The
Department would, however, be no better informed as to what case it has to
meet.
[38] I therefore conclude that the exceptions raised on the bas is that the Plaintiff’s
Particulars of Claim is vague and embarrassing, are well founded, and should
be upheld.
Costs
[39] Ms Maddis on contended that costs should be granted under Scale B,
alternatively Scale C of rule 69(7). In support of this contention, emphasis was
placed on (a) the legal complexities of the matter , (b) the seriousness of the
incident, and (c) the serious nature of the Plaintiff’s allegations in support of her
cause of action against the University. It was submitted that if the Plaintiff wer e
to be successful with her action, it would result in significant liability for the
University.
[40] I disagree that these considerations are relevant to setting an appropriate scale
of costs. They may be relevant to an appropriate cost order that the University
may be entitled to after the trial of the action, in the event of it being the
successful party. The issues raised by the e xceptions, are not unusually
complex. The value of the Plaintiff’s claim has no bearing on the determination
of the exceptions. I am therefore not persuaded that costs should be granted
under Scale C, or Scale B.
[41] It was also argued on behalf of the Univer sity that the costs order in its favour
should include the costs of two counsel. This was opposed by the Plaintiff, on
the basis that the employment of two counsel was not justified. I am not
persuaded that one counsel with sufficient seniority and experie nce would not
have handled the matter properly on behalf of the University.15
[42] In my view, notwithstanding the importance of the ma tter for the University, the
issues for determination in respect of the exception was not complex. It did not
demand the employment of two counsel.16
[43] In the result I make the following order:
1. The Second and Third Defendants’ exceptions to the Plaintiff’s Particulars
of Claim, on the basis that it is vague and embarrassing, is upheld.
2. The Plaintiff’s Particulars of Claim is set asi de and the Plaintiff is given
leave, if so advised, to file amended Particulars of Claim within a period of
one month from the date of this order.
3. The Plaintiff shall pay the Second and Third Defendants’ costs. Costs are
awarded under Scale A of rule 67A(3) read with rule 69(7).
4. The cost order awarded in favour of the Second Defendant shall not
include the costs of two counsel.
_________________
VIVIER, AJ
APPEARANCES
For the Plaintiff: Mr D Maartens
Instructed by: MLR Attorneys
15 Mafongosi and Others v United Democratic Movement and Others 2002 (5) SA 567 (Tk) at par
36; Mafongosi and Others v United Democratic Movement and O thers [2003] 1 All SA 441 (Tk) at
452.
16 Wanderers Club v Boyes -Moffat 2012 (3) SA 641 (GSJ); Fluxmans Inc v Levenson 2017 (20
SA 520 (SCA) at par 45; McMillan v Bate Cubb & Dickson Inc [2021] ZASCA 45 at par 42.
For 2nd Defendant/Excipient: Adv M O’Sullivan SC et
Adv M Maddison
Instructed by: Fairbridges Wertheim Becker,
Cape Town
For 1st & 3rd Defendant: Adv J van der Schyff
Instructed by: State Attorney, Cape Town