REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 9395/2022
In the matter between :
THOMAS DANIEL ZELOLO PLAINTIFF
And
ANGLO AMERICAN PLATINUM MOGALAKWENA MINE DEFENDANT
_______ _____
JUDGEMENT
KGANYAGO J
[1] The plaintiff has instituted an action against the defendant. According to the
plaintiff’s particulars of claim, he was employed as a heavy load truck
(1)
(2)
(3) REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . SIGNATURE: ............ .
operator. The plaintiff’s job description was to transport big stones. This truck
caused the plainti ff to suffer pain and injuries in the back of his body, neck
and shoulders. The medical doctors recommended that the plaintiff was
suitable for light duties , and to work only during day shift . The defendant
disregarded the plaintiff’s medical condition and doctors’ recommendations
and subjected the plaintiff to operate the heavy load truck during night shift.
The plaintiff sustained serious pains and suffering which resulted in him been
declared medically unfit to work and/or incapacitated by the defendant on 8th
March 2022.
[2] The plaintiff alleges that the defendant was negligent in that it failed to ensure
that the heavy load truck complies with safety standards conducive and safe
to use . The plaintiff alleges that he is entitled to compensation and/ or
damages against the defendant for damages arising out of the injuries
suffered by him during the course or scope of his employment at the business
premises of the defendant on 8th July 2019.
[3] The plaintiff further alleges that the defendant had contravened the provisions
of the Occupational Health and Safety Act 85 of 1993 (“OHSA”) by failing to
ensure that the working environment and the heavy load truck was safe to use
and to maintain or put precautionary measures to amelio rate an y potential
pain and suffering or ill -health which may be caused by carrying heavy stones
using the truck in the mine. In the alternative, the plaintiff alleges that the
defendant as the employer is liable for compensation in terms of section 29 of
Compens ation for Occupational Injuries and Diseases Act 1993 (COIDA), for
the injuries sustained by the plaintiff during the scope of his employment.
[4] The plaintiff alleges that as a result of the pain and injuries he had sustained,
he claims against the defendant damages and compensation in the amount of
R3 500 000.00. The breakdown of this amount is that R1 500 000.00 is for the
pains and suffering and/or alternatively for the injuries sustained during the
scope of his employment. In the alternative the plaintiff is seeking payment for
damages arising from the delictual claim as he had suffered pain as a result of
the injury on duty and the pain is recurring on continual basis. The plaintiff
further claims damages and compensation for past medical expens es, future
medical expenses, loss of future and past earnings. The balance of
R2 000 000.00 is for pain and suffering, loss of income because he is no
longer able to carry out heavy duties, drive a heavy loaded truck, and cannot
drive for a long time, whic h makes it difficult for him to look for employment of
a similar nature elsewhere due to ill -health.
[5] The defendant had raised an exception against the plaintiff’s particulars of
claim and had attacked them on eight grounds , but at the hearing of th e
exception had confined itself to six grounds . On the first ground the defendant
alleges that it is unclear whether the plaintiff’s claim is founded on delict or in
statutory non-compliance in that the particulars of claim (i) alleges negligence,
which is an element of delict, as well as the contravention of a statute; and (ii)
contain a claim for damages as well as for compensation. In terms of section
22 of COIDA, an employee who meets with an accident resulting in his
disablement is entitled to benefits provided for and prescribed in COIDA. In
terms of section 35 of COIDA, an employee cannot bring an action against an
employer for damages in respect of any occupational injury or disease
resulting in the disablement of the employee , and an employer shall not be
liable for compensation except under the provisions of COIDA. Regardless of
whether the claim is founded in delict, statutory non -compliance o f section 29
of COIDA, the particulars of claim are bad in law and do not disclose a cause
of action. Alter natively, the particulars of claim are so vague as to cause the
defendant embarrassment if it were to plead.
[6] On the second ground, the defendant has stated that the plaintiff in his
particulars of claim alleges that his claim lies against the defendant’s
negligence and failure to comply with sections 8(1) and 8(2) of the
Occupational Health and Safety Act and Regulation (OHSA). The defendant
alleges that to the extent the plaintiff’s claim is founded in the contravention of
OHSA, it is bad in l aw and does not disclose a cause of action in that (i) the
definition of workplace in section 1 of OHSA provides that OHSA does not
apply in respect of a mine, a mining area or any works defined in the Mineral
Act 50 of 1991; and (ii) the particulars of cl aim state that the plaintiff was
employed at the mine. Therefore, the particulars of claim do not disclose a
cause of action.
[7] On the third ground the defendant has stated that to the extend the plaintiff’s
claim is based on OHSA, section 8 of OHSA cannot found a damage claim as
non-compliance with OHSA is provided for in section 38 of OHSA which
creates criminal liability, as opposed to civil liability. Therefore, the particulars
of claim are bad in law and do not disclose a cause of action . On the fourth
ground, the defendant had stated that to the extend that the plaintiff’s claim is
based on OHSA, the particulars of claim do not adequately set out (i) the
nature and scope of the statutory duties alleged; (ii) the manner in which the
defendant brea ched such duties; and (iii) the grounds of negligence on which
the plaintiff relies for the alleged damages claimed. Therefore, the particulars
of claim are so vague as to cause the defendant embarrassment if it were to
plead.
[8] On the fifth ground, the defendant had stated that to the extend that the
plaintiff’s claim is a delictual claim, (i) the particulars of claim do not allege the
respects in which the defendant’s conduct was wrongful; (ii) the particulars of
claim do not al lege the respects in which the defendant was negligent towards
the plaintiff; and (iii) the particulars of claim do not allege all relevant
allegations pertaining to causation in that it is not alleged when the
defendant’s alleged conduct took place in rel ation to when the plaintiff’s
alleged pain and injuries took place. Therefore, the particulars of claim do not
disclose a cause of action, alternatively they are so vague that the defendant
would be embarrassed if it were to plead.
[9] On the sixth gro und, the defendant has stated that in terms of rule 10 of the
Rules, the plaintiff is required to set out his damages in a manner that enables
the defendant reasonably to assess the quantum. In paragraph 15 of the
particulars of claim, the plaintiff claim s damages and compensation in the
amount of R3 500 000.00. According to paragraph 15.1, the amount of
R1 500 000.00 is for pain and suffering, alternatively for injuries sustained
during the scope of the plaintiff’s employment. In paragraph 15.2, the
partic ulars of claim state that in the alternative the plaintiff seeks payment
because he suffers recurring pain as a result of the injury on duty and he
claims damages and compensation for past medical expenses, future medical
expenses and loss of future and pa st earnings. In paragraph 15.3 the plaintiff
claims R2 000 000.00 for pain and suffering and loss of income. T he
defendant cannot reasonably assess the quantum of the damages as it is not
explained and it is not clear how the amount is arrived at. Therefor e, the
particulars of claim do not disclose a cause of action, alternatively are so
vague that the defendant would be embarrassed if it were to plead.
[10] On the first ground of the exception, the plaintiff had submitted that it is ill -
conceived, basel ess and without any legal foundation, in that the plaintiff had
in an unambiguous term pleaded cumulatively from the same facts a claim
based on delict and a claim based on contravention of statute in the
particulars of claim. The claim for compensation is in terms of the section s of
COIDA for injuries sustained by the plaintiff during the scope of his
employment is pleaded in the alternative. There is nothing in law that prevent
the defendant from pleading different causes of action cumulatively from the
same facts. The plaintiff is relying on the case of Churchill v The Premier of
Mpumalanga and Another1. The defendant’s act of causing the injuries to the
plaintiff was a risk incidental to his employment. The plaintiff’s injuries did not
arise out of his employment but instead ar ose or occurred in the course and
scope of his employment. The allegations set out in paragraph 6 of the
plaintiff’s particulars of claim are two -fold, the first one is based on the claim
against the defendant’s negligence, whilst the other claim is based against the
defendant’s failure to comply with the provisions of OHSA.
[11] On the second ground the plaintiff has submitted that the defendant cannot
rely on the Minerals Act 50 of 1991 in that the Act has been repealed by the
Minerals and Petroleum Re sources Development Act 28 of 2002 (MPRDA).
Even if the Minerals Act was found to be applicable, the OHSA says it shall
1 [2021] ZASCA 16; 2021 (4) SA 422 (SCA) (4 March 2021)
not apply in respect of a mine, mining area or any works defined in the
Minerals Act, except in so far as the Act provides otherwise.
[12] On the third ground the plaintiff has submitted that the defendant fails to
understand that the no n-compliance with OHSA referred in section 38 of the
OHSA does not only pertains to the non -compliance which could result in
criminal liability as oppos ed to civil liability. Section 38 of the OHSA cannot
exonerate the defendant from being liable for damages claimed as the
defendant is a juristic person which cannot serve an imprisonment term
similar to a natural person wherein it is found to have failed to comply with the
provisions of the OHSA. Therefore, the only basis upon which the plaintiff can
seek appropriate legal remedy is to claim damages from the defendant.
[13] On the fourth ground the plaintiff has stated that the particulars of claim
adeq uately set out the nature and scope of the statutory duties alleged, the
manner in which the defendant had breached and, the grounds of negligence
of which the plaintiff relies on the alleged damages claimed . On the fifth
ground, the plaintiff has stated that whilst the plaintiff did not state verbatim
the elements of delict, the plaintiff had covered the circumstances which by
implication or design, directly or indirectly proves the essential elements of
delict such as negligence, wrongfulness and causation.
[14] On the sixth ground, the plaintiff has submitted that its main focus now is to
deal with the merits of the case, and deal with the quantum at a later stage
wherein further facts would be clearly set out in a separate hearing for
determin ation of quantum. When that happens, the plaintiff would be better
placed to take the defendant through the figures and how such an amount
was determined or calculated and why different amounts are claimed for the
same heads of damages. It is premature for the defendant to expect the
extrapolation or assessment of damages by the plaintiff in order to plead.
[15] In order to succeed an excipient has a duty to persuade the court th at upon
every interpretation which the pleading in question can reasonably b ear, no
cause of action is disclosed, failing which the exception ought not to be
upheld. An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal validity. In Living Hands v
Ditz2 Makgoka J said:
“Before I consider the exceptions, an overview of the applicable general
principles distilled from case law is necessary:
(a) In considering an exception that a pleading does not sustain a cause of
action, the court will accept, as true, the allegations pleaded by the plaintiff to
assess whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose of the case o r a portion thereof
in an expeditious manner, or to protect oneself against an embarrassment
which is so serious as to merit the costs even of an exception .
(c) The purpose of an exception is to raise a substantive question of law
which may ha ve the effect of settling the dispute between the parties. If the
exception is not taken for that purpose, an excipient should make out a very
clear case before it would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars of claim,
no cause of action is disclosed.
(e) An over -technical approach should be avoided because it destroys the
usefulness of the exception proced ure, which is to weed out cases without
legal merit.
(f) Pleadings must be read as a whole and an exception cannot be taken to
a paragraph or a part of a pleading that is not self -contained.
2 2013 (2) SA 368 (GSJ) at para 15
(g) Minor blemishes and unradical embar rassment caused by a pleading can
and should be cured by further particulars”.
[16] The plaintiff is claiming compensation and/or damages against the plaintiff. A
claim for compensation will be based on the applicable statute, and a claim for
damages wi ll be based on delict. The plaintiff’s particulars of claim ha ve been
poorly drafted in that it has not been set clearly as to which are the grounds
upon which compensation is claimed, and the grounds upon which damages
are claimed. It is also not clear wh ich claim is the main or alternative.
Paragraph 15.2 of the plaintiff’s particulars of claim provides as follows:
“In the alternative, the plaintiff seeks payment for damages arising from the
delictual claim simply because, he suffered pain as a result of the injury on
duty and this pain is recurring on continual basis. The plaintiff claims damages
and compensation for past medical expenses, future medical expenses, loss
of future and past earnings”.
[17] Whilst it see ms that the plaintiff is claiming damages in the alternative, he is in
the same breath claiming compensation. It does not seem that the plaintiff
understands the difference between a claim based on damages and
compensation. The plaintiff uses both words interchan geably as if they refer to
one and the same thing . A claim based on a statute had its own requirements
which the plaintiff must prove in order to succeed with the claim, and also a
claim based on delict has its own requirements. It must also be clear from the
pleadings which claim is the main and alternative, and the grounds relying
upon be clearly set out in order to enable the defendant to plead. The manner
in which the plaintiff’s particulars of claim has been poorly drafted, is vague
and embarrassing. T herefore, defendant’s first ground of exception has merit
and stands to be upheld.
[18] On the second ground, it also goes to the poor drafting of the plaintiff’s
particulars of claim. In paragraph 6 of the plaintiff’s particulars of claim, it has
been stated that the plaintiff’s claim lies against the defendant’s negligence
and failure to comply with section 8(1) and 8(2) of OHSA. The plaintiff in his
particulars of claim has stated that he was employed as a truck driver by
Anglo American Platinum Mine. In terms section 1(3) of OHSA , the Act shall
not apply in respect of a mine, mining area or any works as defined in the
Minerals Act 50 of 1991. The Minerals Act has been repealed by the
Petroleum Resources Development Act 28 of 2002 which has not in any way
affected section 1(3) of OHSA. The plaintiff has been employed in a mine or
mining area, and therefore, reliance o n the provision of OHSA will result in no
cause of action been disclosed against the defendant. The defendant’s
second ground has merit an d stands to be upheld.
[19] Regarding the third ground , non-compliance with the provisions of OHSA does
not give rise to a claim for compensation. Section 38 of OHSA creates a
criminal offence for non -compliance with the provisions of that Act, and there
are certain fixed penalties which the criminal court may impose in case of
conviction. The is no provision for civil liabil ity. The plaintiff’s reliance on
section 8 of OHSA render his particulars of claim not to disclose a cause of
action, and the defendant’s third ground stands to be upheld.
[20] Regarding the fourth ground, the plaintiff in his particulars of claim had q uoted
section 8(1) and 8(2) of OHSA. The plaintiff thereafter stated that the
defendant had contravened the provisions of OHSA by causing the plaintiff to
drive the heavy load truck during night shift against doctor’s recommendations
who had recommended da y shift or light duty. The plaintiff has stated in his
particulars of claim that the defendant had negligently subjected plaintiff to
drive heavy load truck during night shift, and was not conducive or suitable to
the plaintiff resulting in him being sever ely injured or rather suffering and
enduring pains on the back of his body, his neck and right arm. Further that
the defendant failed to ensure that the working environment and the heavy
load truck was safe for use and to maintain or put precautionary meas ures to
ameliorate any potential pain and suffering or ill -health which may be caused
by heavy stones using the truck in the mine. If the OHSA was creating civil
liability for non -compliance with its provisions , reading the particulars of claim
as a whole in relation to the claim based on OHSA, the pleading is not so
vague as to enable the defendant to plead. There is no merit on the
defendant’s fourth ground .
[21] The plaintiff claim is also based on delict, and is therefore required to plead all
the essential elements of delict which are wrongfulness, negligence and
causation. The plainti ff in his particulars of claim has pleaded that the
defendant had negligently subjected the plaintiff to drive heavy load truck
during night shift, and that was not c onducive or suitable to the plaintiff.
Further that defendant had failed to ensure that the working environment and
heavy load truck was safe for use , and to maintain or put precautionary
measures to ameliorate pain and suffering. All these constitute the
defendant’s alleged failure to comply with safety standards which amounts to
an omission. The defendant must go further and show in what respect was
the alleged omission wrongful by pleading facts which render the alleged
omission to be wrongful. Throughou t the plaintiff’s particulars of claim there is
nowhere the plaintiff makes mention of wrongfulness or facts which shows
elements of wrongfulness . The plaintiff has also failed to set out the facts
giving rise to the alleged negligence by the defendant. Th e plaintiff’s
particulars of claim are vague and the defendant’s fifth ground has merit.
[22] On the sixth ground the plaintiff is basically conceding to the defendant’s
complaint. The plaintiff’s in his heads of argument has submitted that at this
stage his main focus is to deal with the merits of the case and deal with
quantum at a later stag e wherein further evidence and material facts would be
clearly set out in a separate hearing for determination of quantum. Further
that when that time arrives, the plaintiff would be better placed to take the
defendant through the figures and show how such an amount was determined
or calculated and why the different amounts are claimed for the same head of
damages.
[23] Rule 18(4) of the Uniform Rules of Court provides that every pleading shall
contain a clear and concise statement of the material facts u pon which the
pleader relies for his or her claim, defence or answer to any pleading, as the
case may be, with sufficient particularity to enable the opposite party to reply
thereto. There is no provision for a piecemeal pleading where clear and
concise ma terial facts will first be pleaded on merits, and for quantum to be
pleaded later after determination of merits . What the plaintiff is submitting is
that the defendant in relation to quantum must file a provisional plea or not
plead, and will file a proper plea after merits has been finalised. This
argument is flawed, as it is not given that in every matter separation of merits
and quantum will be granted. The plaintiff’s particulars of claim on this issue is
vague, and therefore the defendant’s sixth groun d has merits .
[24] Where an exception has been granted on the ground that the pleading is
vague and embarrassing, that strikes at the formation of the cause of action
and not its legal validity. (See Trope and Others v South African Reserve
Bank3) In such situations the normal practice will be to give the affected party
leave to file an amended pleading within a specified time period . Except for
one ground, the defendant’s exception has been upheld on the grounds that
the plaintiff’s pleading is va gue and embarrassing. It will therefore be fair and
just to grant the plaintiff leave to amend his particulars of claim.
[25] In the result the following order is made:
25.1 The defendant’s exception is upheld with costs.
25.2 The plaintiff is granted leave to deliver, within fifteen (15) court days, a
notice to amend his particulars of claim.
25.3 In the event the plaintiff falling to deliver a notice of intention to amend
his particulars of claim within the time period set out 25.2 above, the plaintiff
will be entitled to bring an application for dismissal of the plaintiff’s claim.
KGANYAGO J
3 1993 (3) SA 264 (A) at 269I
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION , POLOKWANE
APPEARANCE S:
Counsel for defendant/excipient : Adv K Thobakgale
Instructed by : Cliffe Dekker Hof meyr Inc
Counsel for the plaintiff : Adv N Moropene
Instructed by : Lesiba Mailula Attorneys Inc
Date heard : 6th March 2025
Electronically circulated on : 16th April 2025