SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVIS ION, KIMBERLEY
Case No: 1803 /2023
In the matter between:
JAN ZEELIE OLIVIER Plaintiff /Respondent
and
TRANSNET SOC Defendant / Excipient
Heard on: 25 /10/2024
Delivered on : 17/01/2025
Summary: Pleading. Exception. Whether plaintiff’s Particulars o f Claim lack
averments necessary to sustain a claim in delict.
ORDER
In the result the following order is made: Reportable : YES / NO
Circulate to Judges : YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
2
The exception is dismissed with costs.
JUDGMENT: EXCEPTION
MAMOSEBO ADJP
[1] The excipient (defendant ), Transnet SOC Limited, excepte d to the
plaintiff’s particulars of claim on 31 October 2023 contending that they
lack averments necessary to sustain an action. For convenience I refer to
the parties as plaintiff and defendant.
[2] Plaintiff is Jan Zeelie Olivier, a farmer acting in his capacity as a trustee
of the Erich Olivier Trust (IT423/2002) who resides on the Remaining
Portion of Farm R […] No 5 […] in the district of Postmasburg , Northern
Cape . On 22 September 2023 he issued summons against the defendant
for damages in the amount of R566 797.00 allegedly caused by fire to
the vegetation in the railway reserve on the farm , which ignited on at
least two spots, originating from overheated metal fragments, and/or
brake blocks and/or mechanical fragments and/or sparks and/or hot
carbon particles being deposited from a locomotive and/or wagons
and/or equipment operated negligently by the defendant or its employees
acting in the course and within the scope of their employment .
[3] The grounds upon which the defendant relies for its cont ention that the
particulars lack averments essential to sustain a cause of action are:
First, t hat the plaintiff has failed to plead the nexus between the
defendant’s alleged conduct and damages suffered; secondly, that the
3
plaintiff has failed to plead wr ongfulness and fa ult on the part of the
defendant with sufficient particularity; and further failed to plead with
sufficient particularity the geographical proximity between the railway
reserve and the location where the purported hot carbon particulars we re
deposited as well as the basis of the quantum for damages to determine
the extent of the damages the trust allegedly suffered.
[4] Plaintiff served and filed a Notice to oppose the exception on
30 November 2023 together with a Notice of i ntention to amend the
particulars of claim in terms of Rule 28 of the Uniform Rules of Court
affording the defendant 10 days within which to object , failing which
the amendment was to be effected . This attracted a letter from Majang
Attorneys, the instruct ing attorneys for the defendant , dated 1 December
2023 requesting the withdrawal of such a notice as an irregular step in
the proceedings. Oosthuizen Sweetnam Reitz & Fourie responded to
that letter on 4 December 2023 and said in relevant part:
‘3. It is our interpretation of the rules that the plaintiff is within the rules of court
to file his notice to amend regardless of the exception raised.
4. Taking above into consideration we are not going to withdraw the plaintiff’s
notice to amend and will oppose any application brought against the plaintiff
with regards thereto.’
[5] In the plaintiff’s notice of intention to amend dated 30 November 2023
the following relief is sought:
‘Kindly take notice that the plaintiff intends amending its particulars of c laim as
follows:
1. By deletion of paragraph 11 and replacing it with the following:
Damage
4
As a result of the spread of th e veld fire onto the farm R […] the Erich Olivier
Trust suffered damage s in the total amount of R566 797.00 as set out in the
quantum calculation appended hereto and marked as annexure A.”
2. By accordingly appending the Quantum Evaluation of Agri Assessors dated
22 October 2021, annexed hereto, to the Particulars of Claim as Annexure A.
Take notice further that unless objection to the proposed amendment is made
in writing within 10 (Ten) days of the date of receipt hereof, the Particulars of
Claim shall be amended accordingly.
[6] This is what the plaintiff has pleaded in the original para 11 of the
particulars:
‘Damage
As a result of the spread of the f ire (the veld fires) onto R […], the Elrich Olivier
Trust has suffered damages in the total amount of R566 797. 00 which amount is
calculated as follows:
11.1 Damage to natural grazing vegetation R258 687.00
11.2 Damage to natural tre es R160 000.00
11.3 Damage to infrastructure R114 945.00
11.4 Supplements feeding R 33 165.00
TOTAL R566 797.00 ’
[7] On 14 December 2023 the defendant filed a notice in terms of Rule 30
of the Uniform Rules requesting the plaintiff to withdraw the notice to
amend the particulars . Counsel for the plaintiff, Mr Knoetze SC,
refrained from arguing the point and only confined himself to the
exception. The action by the plaintiff’s attorneys pertaining to this
irregular step was misconceived because an exceptio n was already taken
and had to be adjudicated upon first. Plaintiff cannot on the one hand
oppose the exception and on the other seek to amend the particulars.
5
Furthermore, leave was not granted to effect such changes as the ruling
on the exception taken was still pending.
[8] Where an exception is taken, the court must look at the pleadings
excepted to as it intersects with the facts agreed to by the parties, if any .
No facts outside those stated in the pleadi ngs may be brought into issue
– except in the case of inconsistency.1
[9] I align myself with the pronouncement by Maier -Fawley J in Merb (Pty)
Ltd and Others v Matthews and Others2:
‘Where an exception is raised on the ground that a pleading lacks averments
necessary to sustain a cause of action, the excipient is required to show that upon
every interpretation that the pleading in question can reasonably bear, no cause of
action is disclosed. It is trite that when pleading a cause of action, the pleading must
contain every fact which would be nece ssary for the plaintiff to prove, if traversed ,
in order to support his right to judgment (facta probanda). The facta probanda
necessary for a complete and properly pleaded cause of action importantly does not
comprise every piece of evidence which is nece ssary to prove each fact (being the
facta probantia) but every fact which is necessary to be proved.’
[10] As enunciated by Hoexter JA in Dharumpal Transport (Pty) Ltd v
Dharumpal3 the main purpose of the exception that a declaration
discloses no cause of action is to avoid the leading of unnecessary
evidence.
[11] The plaintiff’s case is based on the actio legis aquiliae for the recovery
of his patrimonial loss, which may include pure economic loss, suffered
through the wrongful and negligent act of the defendant. It is settled that
1 Erasmus, Superior C ourt Practice, Second Edition, Volume 2 Juta, [Service 2 1, 202 3] D1-295
2 Merb (Pty) Ltd and Others v Matthews and Others (2020/15069) [2021] ZAGPJHC 693 (16 November 2021)
para 12
3 Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706D – E
6
for the plaintiff to succeed in his claim for delictual liability, he must
allege and prove these elements: (i) the harm that was sustained; (ii) the
wrongful conduct on the part of the defendant; (iii) the causal
connection between the conduct and the harm done to the plaintiff; and
(iv) fault or blameworthiness on the part of the defendant.
[12] The defendant’s first ground is that plaintiff (Olivier) has failed to plead
the nexus between the purported conduct of the defen dant and the
damages allegedly suffered which lacks the necessary averments to
sustain an action . In this respect the answer lies in the following
principle propounded by Corbett JA in Minister of Police v Skosana4 in
respect of causation:
‘Causation in the law of delict gives rise to two rather distinct problems. The first is
a factual one and relates to the question as to whether the negligent act or omission
in question caused or materially contributed to (see Silva's Fishing Corporation
(Pty.) Ltd. v Maweza, 1957 (2) SA 256 (AD) at p. 264; Kakamas Bestuusraad v
Louw, 1960 (2) SA 202 (AD) at p. 222) the harm giving rise to the claim. If it did
not, then no legal liability can arise and cadit quaestio . If it did, then the second
problem becomes relevant, viz. whether the negligent act or omission is linked to the
harm sufficiently closely or directly for legal liability to ensue or whether, as it is
said, the harm is too remote. This is basically a juridical problem in which
considerations of legal policy may play a part. The distinction between these two
enquiries is well explained by Prof. Fleming, The Law of Torts, 4th ed., p. 169, as
follows:
“…The first involves what may broadly be called the 'factual' question
whether the relation between the defen dant's breach of duty and the plaintiff's
injury is one of cause and effect in accordance with 'scientific' or 'objective'
notions of physical sequence. If such a causal relation does not exist, that puts
an end to the plaintiff's case, because no policy c an be strong enough to
4 Minister of Police v Skosana 1977 (1) SA 31 (AD) at 34E – 35A
7
warrant the imposition of liability for loss to which the defendant's conduct has
not in fact contributed.
The second problem involves the question whether, or to what extent, the
defendant should have to answer for the consequence s which his conduct has
actually helped to produce. There must be a reasonable connection between
the harm threatened and the harm done. As a matter of practical politics, some
limitation must be placed upon legal responsibility, because the consequences
of an act theoretically stretch into infinity. The task is to select those factors
which are of sufficient significance to justify the imposition of liability and to
draw a boundary along the line of consequences beyond which the injured
party must either s houlder the loss himself or seek reparation from another
source. ”’
See also Minister of Safety and Security and Another v Carmichele 2004
(3) SA 305 (SCA) at para 55 and Lee v Minister for Correctional
Services 2013 (2) SA 144 (CC) at para 38.
[13] The plaintiff’s particulars as they stand and in as far as the nexus is
concerned the following was pleaded: that the Elrich Olivier Trust is the
owner of the farm Roscoe; Transnet owns or is in control of the railway
reserve in the vicinity of Roscoe; on 30 September 2020 vegetation in
the railway reserve on Ro scoe was ignited on at least two spots; the fire
originated from the metal fragments and/or brake blocks and/or
mechanical fragments and/or sparks and/or carbon particles deposited
from the locomotive and/or wagons and/or equipment operated by
Transnet ; the fire spread within the farm Roscoe from the points of
ignition and caused damage to natural grazing vegetation, trees and
infrastructure.
[14] The defendant also places wrongfulness in issue. How ever, thi s is what
appears at para 4 of the plaintiff’s particulars.
8
‘The defendant’s legal duty
At all times material hereto, the defendant:
4.1 was the owner of, or alternatively, in control of the railway reserve and railway
tracks in the vicinity of Roscoe;
4.2 was responsible for the operation and maintenance of the locomotives wagons
and equipment which travelled through the sites of ignition.’
[15] I am not persuaded that the defendant’s submission in the above regard
has substance. I n AB Ventures Ltd v Siemens Ltd5 Nugent JA remarked
as follows :
‘…Thus as early as Trust Bank Rumpff JA said that when 'legal duty'
(wrongfulness) is under consideration 'policy considerations' come into play. He
likened it to the 'duty concept' in the English tort o f negligence, which Millner
Negligence in Modern Law described as 'a device of judicial control over the area of
actionable negligence on grounds of policy'. ’
[16] In Telematrix ( Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA6 Harms JA made these insightful
pronouncements pertaining to determining wrongfulness :
‘[13] When dealing with the negligent causation of pure economic loss it is well to
remember that the act or omission is not prima facie wrongful ('unlawful' is the
syno nym and is less of a euphemism) and that more is needed. Policy
considerations must dictate that the plaintiff should be entitled to be
recompensed by the defendant for the loss suffered (and not the converse as
Goldstone J once implied unless it is a case of prima facie wrongfulness, such
as where the loss was due to damage caused to the person or property of the
plaintiff). In other words, conduct is wrongful if public policy considerations
demand that in the circumstances the plaintiff has to be compensa ted for the
5 AB Ventures Ltd v Siemens Ltd 2011 (4) SA 614 (SCA) para 8
6 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) para 13
9
loss caused by the negligent act or omission of the defendant. It is then that it
can be said that the legal convictions of society regard the conduct as
wrongful, something akin to and perhaps derived from the modern Dutch test
“in strijd …met hetgeen volgens ongeschreven recht in het maatschappelijk
verkeer betaamt ” (contrary to what is acceptable in social relations according
to unwritten law).’
It is my view, therefore, that the plaintiff has pleaded wrongfulness with
sufficient particulari ty to enable the defendant to plead thereto.
[17] The defendant further placed fault in issue contending that plaintiff has
failed to plead fault on the part of the defendant as one of the elements
of delict. In Kruger v Coetzee7 Holmes JA authoritativel y set out the
principle in these terms :
‘For the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant -
(i) would foresee the reasonable possibility of his conduct injuring another
in his person or proper ty and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps. ’
See also Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) para
31.
[18] The question that will have to be established in due course in evidence is
whether a diligens paterfamilias in the position of the defendant foresaw
the harm and took reasonable steps to prevent it. This, therefore, means
that the contention that fault was not pleaded with sufficient particularity
to enable the defendant to plead cannot be sustained.
7 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E – G
10
[19] In his written submissions Mr Maodi argued that the manner in which
the plaintiff has set out the damages does not comply with Rule 18(10)
since it does not enable the def endant to reasonably assess the quantum
and it would be prejudiced if it were to be forced to plead to the
particulars as pleaded. Counsel relied on National Director of Public
Prosecutions v Phillips and Others8 where Heher J stated:
‘Pleadings must be lucid, logical and intelligible. A litigant must plead his cause of
action or defence with at least such clarity and precision as is reasonably necessary
to alert his opponent to the case he has to meet. A litigant who fails to do so may not
thereafter adv ance a contention of law or fact if its determination may depend on
evidence which his opponent has failed to place before the court because he was not
sufficiently alerted to its relevance. ’
Regard being had to the original para 11 in respect of the dam ages
claimed, without even having regard to its amendment, I am of the view
that it is sufficient to enable the defendant to plead.
[20] Transnet has further excepted to the alleged failure by the plaintiff to
specify the geographical proximity between th e railway reserve and the
location where the purported hot carbon particles were deposited. Th e
plaintiff’s response , correctly so, was that this contention does not form
part of the elements of a delict that he has to establish in order to
succeed in a de lictual claim. This submission is fortified by the fact that
geographical proximity is part of the evidential material to be led during
the trial and does not form part of the elements of a delictual claim that
the plaintiff must allege and prove . As Harms JA cautioned in
Telematrix9:
8 National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) at 106E – H
9 Ibid para 3
11
‘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.”’
[21] The plaintiff’s particulars consequently contain averments necessary to
sustain a claim in delict. It follows tha t this exception should
accordingly fail.
[22] In the result the following order is made:
The exception is dismissed with costs.
_____________________
MC MAMOSEBO
ACTING DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For the plaintiff/respon dent Adv. B Knoetze SC
Instructed by: Oosthuizen Sweetnam Reitz & Fourie Attorneys
c/o Elliot Maris Attorneys
For the defendant/excipient : Adv. W Maodi
Instructed by: Majang Inc Attorneys
c/o Roux Welgemoed & Du Plooy Attorneys
12