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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
REPUBLIC OF SOUTH AFRICA
Case Number: 091082/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) DATE: 20 October 2025
(5) SIGNATURE:____________________
DESMOND MILLIGAN Plaintiff/Respondent
(ID NO: 8[...])
And
THE MINISTER OF HEALTH First Defendant
PFIZER LABORATORIES (PTY)LTD Second Defendant/Excipient
(REG NO: 1954/000781/07)
This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email.
The judgment is further uploaded to the electronic file of this matter on
CaseLines by the Judge or her Secretary. The date o f this j udgment is
deemed to be 20 October 2025.
JUDGMENT
COLLIS J
INTRODUCTION
1] This is an exception in terms of Rule 23(1) of the Rules of Court that was
brought by the excipient (the second defendant in the action), against the
respondent (the plaintiff in the action).
2] The exception to the particulars of claim is on the basis t hat it is vague
and embarrassing, on the one hand, and that it does not sustain a cause of
action, on the other hand.
3] The second defendant simultaneous with the Rule 23 (1) application also
filed a Rule 30(1) notice this pursuant to a Rule 30(2)(b) notice as it
contended that it raised the same or largely overlapping grounds.
4] In this regard it placed reliance on the decision Nasionale Aartappel
Kooperasie Bpk v Price Waterhouse Coopers Ing 1 as this approach i.e.
pursuing both available remedies simultaneously , was recogni zed and
endorsed by Southwood J as being an acceptable approach where defective
pleadings are non-compliant with Rule 18 and excipiable. It is for this reason
that the parties requested this Court to consider both appli cations
simultaneously.
BACKGROUND
1 2001 (2) SA 790 (T) at 796F-H & 797B-C. In Sasol Industries (Pty) Ltd t/a Sasol 1
v Electrical Repair Engineering (Pty) Ltd t/a L H Marthinusen 1992 (4) SA 466 (W)
at 469F-J the court referred to the choice of remedies as being Rule 23 or Rule 30.
5] In the present action the plaintiff sues the Minister of Health (first
defendant) and Pfizer Laboratories Pty Ltd (the second defendant) for
damages allegedly suffered by the plaintiff after having been vaccinated
against the SARS CoV2 virus during the Covid-19 pandemic.2
6] The plaintiff pleads that he received the Pfizer -BioNTech mRNA/
Cominarty vaccine on 20 July 2021 at the Van Heerden Pharmacy in
Mbombela, Mpumalanga.3
7] The plaintiff pleads four claims. The plaintiff’s primary claim is based on
section 61 of the Consumer Protection Act (CPA) and the remaining three
claims are pleaded in the alternative. The structure is as follows:
7.1 a claim for strict liability based on section 61 of the CPA (paragraphs 20-
31).
7.2 a claim in delict (paragraphs 35 to 44).
7.3 a claim requiring the development of the common law (paragraphs 45 to
48); and
7.4 a claim for constitutional damages (paragraphs 51 to 67).
2 FA to the Rule 30 Application, Annexure A, para 16.
3 Annexure A, paragraph 12.
8] On 12 January 2024, the second defendant delivered a notice in terms of
Rule 23(1)(b) setting out its causes of complaint. The plaintiff failed to
respond to the Rule 23(1)(b) notice and the second defendant then delivered
its Rule 23(1)(a) notice of exception.
9] The complaint as per the exception is that the claims in delict and for
constitutional damages do not sustain a cause of action and that the
allegations identified are vague and embarrassing, such that the second
defendant would be embarrassed to plead thereto.
10] Before this Court the second defendant persists with five of the eight
grounds set out in the Rule 23(1) notice which can be listed as follows:
10.1 the third ground: that the plaintiff has failed to plead “the agreement”
between the plaintiff and the pharmacy with sufficient particularity rendering
the particulars of claim vague and embarrassing;
10.2 the fourth ground : that the allegations pertaining to the claim in
delict do not sustain a cause of action in delict;
10.3 the fifth ground: that the allegations pertaining to the claim for the
development of the common law are vague and embarrassing;
10.4 the sixth ground : that the allegations relating to constitutional
damages do not sustain a cause of action against the second defendant; and
10.5 the seventh ground: that the incorporation of Dr Edeling’s report into
the particulars of claim renders the particulars of claim vague and
embarrassing.
11] For ease of reference, the parties will be referred to as the excipient
‘Pfizer’, the plaintiff as the ‘respondent’ and the first defendant as ‘the
Minister’.
LEGAL POSITION
11] Now, when courts consider exceptions, the court must assume that the
facts alleged in the particulars of claim are correct.4
4 Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) and Stewart v Botha 2008 (6)
12] Further that t he Court must be satisfied that upon every interpretation
which the Particulars of Claim can reasonably bear, no cause of action is
disclosed.5
13] Pleadings must contain a clear and concise statement of the material
facts upon which the pleader relies for his claim to succeed. These facts
must be set out with sufficient particularity to enable the opposite party to
reply thereto.
14] This approach to be adopted is in keeping with Rule 18(4) of the Uniform
Rules of Court. In respect of the material facts relied upon, the pleader must
set out the facta probanda which it relies upon for its cause of action.6
15] There is no exhaustive test of what constitutes ‘sufficient particularity ’.
The question should be answered in relation to the circumstances of each
case. However, it is incumbent on a plaintiff to plead a complete cause of
action which identifies the issues upon which the plaintiff seeks to rely upon
SA 310 (SCA) par 4.
5 Lewis v Oneanate (Pty) Ltd & Another 1992 (4) SA 811 (AD) at 817 F-G.
6 McKenzy v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23 and
Makgae v Sentraboer (Ko-operasie) Bpk 1981 (4) SA 239 (T) at 245D- E.
and on which evidence will be led, in an intelligible and lucid form which
allows the defendant to plead to it.
16] It has been held that a pleading becomes excipiable , if no possible
admissible evidence led on the pleadings can disclose a cause of action.7
17] An excipient has a duty to persuade the court that upon every
interpretation which the pleadings in question can reasonably bear that no
cause of action is disclosed.
18] Thus, Rule 23 was designed to strike at vagueness and embarrassment
which affects the whole cause o f action so pleaded. Therefore an exception
that the pleading is vague and embarrassing may be taken only when the
vagueness and embarrassment strike at the root of the cause of action as
pleaded and where the complaint falls into the category of insufficient
particularity, the remedy of the defendant is to plead to the averments made
and to obtain the particularity he requires either by means of the
7 See Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at
107C-H, Jowell v Bramwell -Jones 1998 (1) SA 836 (W) at 902H -I and Nel NO v
McArthur 2003 (4) SA 142 (T) at 146-8.
discovery/inspection of documents procedure or by means of a request for
particulars for trial.8
19] Therefore, a n exception on the basis that a pleading is vague and
embarrassing is supposed or intended to cover cases where, although a case
appears in the claim, there is nevertheless some defect or incompletenes s in
the manner in which it is set out, or aptly put, how it was formulated, which
results in embarrassment to the defendant. This kind of exception is not
directed at a particular paragraph within a cause of action but instead goes
to the whole cause of action so pleaded.9
20] The test applicable in deciding exceptions based on vagueness and
embarrassment arising out of a lack of particularity was summarised in the
case of Quilan v McGregor 1960 (4) SA 383 (D) at 939F -H: In each case the
court is obliged first of all , to consider whether the pleading does lack
particularity to an extent amounting to vagueness. If there is vagueness in
8 Kalinko v Nisbet and others 2002 (5) SA 766 (WLD) at 780B -781B.
9 Trope v South African Reserve Bank 1993 (3) SA 264 (A) at 269H and Lockhat v
Minister of Interior 1960 (3) SA 765 (T) at 777E).
this sense the court is then obliged to undertake a quantitative analysis of
such embarrassment as the excipient can show is caused to h im, in his
efforts to plead to the offending paragraph, by the vagueness complained of.
In each case the court must make an ad hoc ruling as to whether the
embarrassment is, or is not, so serious as to cause prejudice to the excipient
if he is compelled to plead to the paragraph in the form to which he objects.
The eventual test as to whether the exception should be upheld or not is
whether the excipient is prejudiced.
21] The onus is on the excipient to show both vagueness amounting to
embarrassment and the embarrassment amounting to prejudice. Unless he
can do this, an exception must be dismissed. A pleading is vague an d
embarrassing if it is susceptible to more than one meaning or if it is not
reasonably clear what the pleading means. That much is clear from the
decisions of Leathern v Tredoux 1911 NPD 346 at 348 and Quinlan v
MacGregor 1960 (4) SA 383 (D) at 390C-F.
22] The grounds of complaint are then turned to, and as mentioned Pfizer
only persists with five of its eight grounds.
GROUNDS OF COMPLAINT
The Third and Seventh Ground
23] The third ground, i.e. that the plaintiff failed to plead the agreement
between the plaintiff and the pharmacy with sufficient particularity rendering
the particulars of claim vague and embarrassing , whereas the s eventh
ground relates to the incorporation of Dr. Edeling’s report re ndering the
particulars of claim vague and embarrassing.
24] In this regard the excipient relied on the provisions of Uniform Rule
18(4) which states as follows:
“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, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.”
25] On behalf of the excipient it was arg ued that it is a basic principle that
pleading should be so phrased that the other party may reasonably and
fairly be required to plead thereto.10
26] Pleadings must therefore be lucid, logical and in an inte lligible form and
the cause of action must appear clearly from the factual allegations made. 11
10 Trope v South African Reserve Bank 1992 (3) SA 208 (T).
Therefore, failure on the part of a pleader to set out the material facts on
which he relies with sufficient particularity to enable the opposite party to
reply thereto, may result in the pleading concerned being deemed an
irregular step in the proceedings.12
27] In Doyle v Sentraboer (Co-operative),13 Mullins J cautioned that:
“An added difficulty arises when lengthy reports are incorporated into
the plea dings. Although Rule 18(10) requires a plaintiff suing for
damages to set out his damages in such a manner as will enable the
defendant reasonably to assess the quantum thereof, this does not
mean that a plaintiff must ignore the provisions of Rule 18(4), which
requires every pleading to contain 'a clear and concise statement of
the material facts upon which the pleader relies for his claim. . .'. To
annex to his particulars of claim, as was done in the present case,
eight medical reports running to 52 pages, hardly provides 'a clear and
concise statement'.”
28] A pleading should therefore not include extensive excerpts from and
references to other documents. In paragraph 18 of the particulars of claim,
11 Trope v South African Reserve Bank 1992 (3) SA 208 (T).
12 Uniform Rule 18(12) and Trope v South African Reserve Bank 1992 (3) SA 208
(T).
13 1993 (3) SA 176 (SE) at 181E-F.
the plaintiff avers that the “nature and extent of his injuries and their
symptoms” are more fully set out in the medico-legal report of Dr HJ Edeling
dated 12 February 2023 attached as “M2” (‘the report’) and further pleads
that the content of the report be incorporated “by reference”.14
29] In this respect the excipient had argued that the plaintiff b y
incorporating the content of the report “by reference”, the plaintiff has
introduced substantial allegations which constitute evidence, into his
particulars of claim in a manner which does not comply w ith the
requirements of Rule 18(4), and which makes it impossible for the second
defendant to properly plead thereto.
30] The plaintiff has sought to incorporate attachments and documents to
which reference is made in the report, which are either not prop erly
identified and/or which are not attached to the report to enable the second
defendant to identify the documents and plead thereto.
31] Dr Edeling’s report runs to 62 pages (excluding his curriculum vitae) and
he attaches a chronology referencing two volumes of documents which run
14 FA, Annexure A, para 18.
to hundreds of pages. It will be noted from the first page of that chronology
that he refers to Volume 2, p765 (report at page 59 of 72 pages).
32] In this respect it was argued that th e second defendant cannot be
expected t o meaningfully plead to the incorporated report which itself
references a plethora of documents which have not been specified or
attached to the report. It is manifestly prejudicial.
33] By incorporating the report “by reference” into the particulars of claim,
the plaintiff has failed to set out a clear and concise statement of the
material facts upon which he relies for his claim, as required by Rule 18(4).
The plaintiff has failed to id entify the specific allegations in the report to
which he requires the second defendant to plead in accordance with Rule
18(4).
34] On behalf of the plaintiff the following arguments were advanced in
opposition to these grounds . Firstly, the plaintiff cont ends that there is no
basis alleged by Pfizer that the particulars of claim lack the averments to
sustain a cause of action and this notwithstanding that not one of the
plaintiff’s claims against Pfizer is based on an agreement between him and
Pfizer.
35] Secondly, the agreement of sale concluded between the plaintiff and the
particular pharmacy is merely part of the facta probantia which the Court will
have to take into consideration and does not form part of the facta
probanda.
36] Thirdly, t he terms of the agreement of sale concluded between the
plaintiff and the particular pharmacy and the parties thereto, as opposed to
the mere existence of such an agreement, counsel contended plays no role
in the plaintiff’s claim against Pfizer based on s 61 of the Consumer
Protection Act 68 of 2008 or his claim based on delict nor his claim based on
the development of the common law or his claim based on constitutional
damages.
37] Further, that the plaintiff in any event alleges, where the agreement was
concluded (Mbombela), who the parties were (the plaintiff and sister Susan
Mocke), who represented the respective parties (plaintiff personally and
Susan Mocke on behalf of the pharmacy), the subject matter of the
agreement, i .e. the purchase and administ ration of the vaccine and the
execution of the agreement, i .e. the administration of the vaccine and
payment of same. Moreover, the document confirming the execution of the
agreement is also attached to the particulars and nothing more is required.
38] It is on this basis that counsel submitted that nothing more was required
to be pleaded and therefore that this court should f ind no merit in these
grounds of complaint.
39] The sentiment expressed by the excipient , in respect of grounds three
and sev en, this Court agrees with, as Dr Edeling in his report clearly
expresses an opinion in relation to the cause of health problems of the
plaintiff subsequent to him receiving the specific Covid-19 vaccine.15
40] Th e opinion so expressed by Dr. Edeling, the second defendant is
obliged to plead to all the facts, assertions and allegations in the report
which has been “incorporated by reference,” and given the comprehensive
nature of the report it would be impossible for the second defendant to do so
in rela tion to a 62 -page report which itself has referenced volumes of
unidentified documents comprising hundreds of pages. The plaintiff as
required by Rule 18(4) was required to plead material facts upon which he
relies to enable the excipient to plead thereto. This the plaintiff has failed to
do.
15 FA, Annexure A, Annexure “M”, para 1.1.
41] In addition thereto, the plaintiff in paragraph 23 of his particulars of
claim, merely pleads that the agreement concluded between himself and the
pharmacy was a transaction as envisaged in section 1 of the Consumer
Protection Act , 68 of 2008 without specifically alleging whether the
agreement so concluded was oral or in writing, who represented the parties ,
where the agreement was concluded, the relevant terms of the agreement
relied upon and if the agreement was in writing there has been no copy
annexed to the particulars of claim. What has been annexed is merely a
document reflecting the execution of the agreement.
42] For the above reasons this Court concludes that there would also be
prejudice to the second defendant in not having clear and concise pleadings
to answer to, and as such on this ground also the plaintiff has failed to meet
the requirements of Rule 18(4). Consequently, grounds three and seventh
have merit.
The Fourth, Fifth and Sixth Ground
43] In relation to the fourth ground, the excipient avers that the plaintiff has
failed to plead the basis that the allegations pertaining to the claim in delict
and it does not sustain a cause of action.
44] In paragraph 37 of the particulars of claim the plaintiff formulated his
claim in delict as follows:
“In the circumstances, the first and second defendants had a legal
duty to inform the general public of all relevant information, including
the side-effects of vaccine, with the view to enabling the general public
to make an informed decision, i.e. a choice that individuals could make
once they had all the information related to the decision topic, which
involved analyzing potential outcomes, benefits and risks associated
with each option before deciding which choice would be the best.”
45] The circumstances referred to in paragraph 37 above are to be inferred
from what the plaintiff pleaded in paragraphs 1 to 19, with due regard to
what is alleged in paragraph 36.
46] However , in paragraphs 1 to 19, the plaintiff does not allege a direct
relationship between the plaintiff and the second defenda nt. The plaintiff
merely alleges that the second defendant supplied the first defendant (per
paragraph 7.1).
47] It is further also not alleged that the second defendant was a healthcare
provider as contemplated by the National Health Act 61 of 2003 (“the NHA”).
48] Section 6 of the NHA places the duty to inform a user on the health care
provider and provides as follows:
“6 User to have full knowledge:
(1) Every health care provider 16 must inform a user of-
(a) the user's health status except in circumstances where there is
substantial evidence that the disclosure of the user's health status
would be contrary to the best interests of the user;
(b) the range of diagnostic procedures and treatment options generally
available to the user;
16 'health care provider' means a person providing health services in terms of any
law, including in terms of the-
(a) Allied Health Professions Act, 1982 (Act 63 of 1982);
(b) Health Professions Act, 1974 (Act 56 of 1974);
(c) Nursing Act, 1978 (Act 50 of 1978);
(d) Pharmacy Act, 1974 (Act 53 of 1974); and
(e) Dental Technicians Act, 1979 (Act 19 of 1979).
(c) the benefits, risks, costs and consequences generally
associated with each option; and
(d) the user's right to refuse health services and explain the
implications, risks, obligations of such refusal. (own underlining).”
49] In this regard counsel for the excipient had argued that the plaintiff has
failed to plead the explicit basis upon which the second defendant who is not
a healthcare provider , is alleged to be under a legal duty to inform the
general public, and it is therefore unclear on what basis the plaintiff imputes
a legal duty on the part of the second defendant.
50] For this reason , counsel had argued that the plaintiff therefore pleads
the conclusion of a duty without a factual basis for such duty.
51] Accordingly, the plaintiff’s alternative claim in delict against the second
defendant does not contain averments to sustain a cause of action against
the second defendant in delict.
52] On behalf of the plaintiff, counsel appearing had submitted that there is
no merit in this ground of exception.
53] This is so as t he plaintiff counsel submitted that Pfizer produced the
vaccine, that the vaccine was distributed to the general public for its
intended use without w arning of all its side -effects, that the vaccine was
administered to the plaintiff as a result of which he was injured because the
non-published side -effects materialized and that he would not have taken
the vaccine if he had known of all its side-effects.
54] This submission made by counsel for the plaintiff is in direct contrast to
the plaintiff’s pleaded case in paragraph 15 of the particulars of claim, where
the plaintiff had pleaded that it was unknown to him as to whether the
vaccine administered to him was indeed produced by the second defendant.
55] Confirmation of such would have at the very least have been the factual
basis for the legal duty relied upon by the plaintiff. Absent such factual basis
and absent the second defendant falling within the definition of it being a
healthcare provider, this Court must con clude that there is also merit in the
fourth ground of complaint.
56] In relation t o the fifth ground of complaint the excipient avers the
plaintiff failed to plead on what basis there was a constitutional duty upon
the second defendant not to perform an y act that could infringe the
plaintiff’s rights . In this regard the excipient avers that the allegations
relating to constitutional damages as pleaded do not sustain a cause of
action as against the second defendant.
57] In paragraph 4.1 of the particulars of claim, the plaintiff alleges that the
first defendant had a constitutional duty to “…protect, promote, improve and
maintain the health of the population as envisaged in Section 27(2) of the
Constitution read with Section 3 of the National Health Act” , 17 but fails to
plead on what basis there was a corresponding constitutional duty upon the
second defendant.
17 3 Responsibility for health:
(1) The Minister must, within the limits of available resources-
(a) endeavour to protect, promote, improve and maintain the health of the
population;
(b) promote the inclusion of health services in the socio -economic development
plan of the Republic;
(c) determine the policies and measures necessary to protect, promote, improve
and maintain the health and well-being of the population;
(d) ensure the provision of such essential health services, which must at least
include primary health care services, to the population of the Republic as may be
prescribed after consultation with the National Health Council; and
(e) equitably prioritize the health services that the State can provide.
(2) The national department, every provincial department and every municipality
must establish such health services as are required in terms of this Act, and all
health establishments and health care providers in the public sector must equitably
provide health services within the limits of available resources.
58] In his particulars of claim, t he plaintiff refers to his right to bodily and
psychological integrity in section 12(2)(c) of the Constitution and the right
not to be subjected to medical or s cientific experiments without informed
consent.
59] In paragraph 48 the plaintiff avers that the common law should be
developed to hold the defendants strictly liable for any damages suffered in
the circumstances set out in paragraphs 1 to 19. In other wo rds, if the
plaintiff cannot establish that the second defendant is strictly liable to him
under the CPA, then the common law must be developed to establish strict
liability against the second defendant.
60] On behalf of the excipient counsel had argued t hat a litigant seeking
development of the common law must specify: (i) how or in what respect
the common law is deficient; and (ii) in what respect the common law
offends the spirit, purport and object of the Bill of Rights such that the
common law requires development.
61] Herein, the plaintiff in his alternative claim had failed to aver how or in
what respect the second defendant breached any constitutional duty owed to
the plaintiff; nor has he pleaded in what respects the common law is
deficient such t hat it would give rise to a claim as against the second
defendant for development of the common law.
62] In respect of this ground of complaint, counsel for the plaintiff submitted
that in terms of the common law there is no delictual claim based on strict
liability of a manufacturer and that is the reason why the plaintiff contends
that the common law should be developed to incorporate such a claim under
the pleaded circumstances.
63] In any event counsel submitted that it would not be appropriate to deal
with the merits of such a claim at the stage of exception.
64] To the stance adopted by counsel for the plaintiff , this Court holds a
different view. The present exception has been raised before the plea of the
defendant is formulated. It is therefore imperative that a claim faced by a
defendant who is to plead thereto does not contain some defect or
incompleteness which results in embarrassment to a defendant.
65] Support for this position is found in Member of the Executive Council for
Health and Social Development, Gauteng v DZ obo WZ 18 where the
Constitutional Court held with reference to Mighty Solutions t/a Orlando
Service Station v Engen Petroleum Ltd 19; Carmichele v Minister of Safety
and Security (Centre for Applied Legal Studies intervening) 20 and Khumalo v
Holomisa21 that:
“[31] The general approach to development of the common law under
section 39(2) is that a court must: (1) determi ne what the existing
common law position is; (2) consider its underlying rationale;
(3) enquire whether the rule offends section 39(2) of the Constitution;
(4) if it does so offend, consider how development in accordance with
section 39(2) ought to take pl ace; and (5) consider the wider
consequences of the proposed change on the relevant area of the law.”
66] In Member of the Executive Council for Health and Social Development,
Gauteng v DZ obo WZ the Constitutional Court opted to decline the
18 CCT20/17) [2017] ZACC 37; 2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC)
(31 October 2017).
19 [2015] ZACC 34; 2016 (1) SA 621 (CC).
20 [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 40
and 80).
21 [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 41.
development of the common law as it then stood for a number of reasons
including that:
“[96] First the issue was not pleaded and consequently was not
determined by the trial court. Second, the Supreme Court of Appeal
refused to entertain it on the ground that the point was not pleaded
and did not form part of the case.”
67] For reasons extrapolated above, this Court agrees that this claim against
the second defendant is vague and embarrassing, as it is premised upon the
development of the common law in which the plaintiff seeks to hold the
second defendant strictly liable, without the plaintiff having pleaded how and
in what respect the common law is deficient and in what respect the
common law offends t he spirit, purport and object of the Bill of Rights such
that the common law requires development.
68] In respect of the six th ground of complaint, the excipient avers that the
plaintiff’s claim for constitutional damages lacks averments necessary to
sustain a valid cause of action against the second defendant.
69] In this regard counsel for the plaintiff submitted that the plaintiff’s claim
is based on a constitutional remedy to be granted only in the event of it
being found that plaintiff has no other adequate or appropriated remedy
available in law. This much is alleged in paragraph 63 of the particulars of
claim and as such he considered the stance adopted by counsel for the
excipient as ill conceived.
70] The excipient however had argued that in paragraph 51 of the
particulars of claim , the plaintiff avers a further alternative claim for
constitutional damages.
71] In paragraph 53 the plaintiff further alleges that the defendants not only
failed to realize the plaintiff’s fundamental rights, but that their conduct
constituted a refusal to realize such rights.
72] It is trite that constitutional damages are a punitive form of relief with
the dual function of deterring future human rights violations and promot ing
constitutional values. They are sought primarily in the wake of egregious
failures on the part of the State to fulfil its constitutional obligations, often
leading to fatal consequences.22
22 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC).
73] In this regard, the excipient had argued that there is no legal duty upon
the second defendant to reali ze the plaintiff’s fundamental rights enshrined
in our Constitution and i n order to sustain a claim for constitutional
damages, the plaintiff is required to plead that there is no other adequate or
appropriate remedy available to the plaintiff for the alleged breach.
74] The particulars of claim contain no averments to this effect and on this
basis no cause of action has been pleaded against the second defendant.
75] As per the plaintiff’s pleaded case per paragraph 54, the plaintiff alleges
heads of damage which, provided all the elements of a delictual claim
averred against the second defendant are proven, would constitute damages
recoverable at common law. The plaintiff so the excipient contends, makes
no distinction in his particulars of claim between what would constitute
delictual damages recoverable at common law and otherwise constitutional
damages. They are pleaded as being identical and on this basis also the
excipient avers that the plaintiff’s claim for constitutional damages lacks
averments necessary to sustain a valid cause of action against the second
defendant.
76] This complaint with reference to how the plaintiff’s claim in respect of
constitutional damages has been pleaded , this Court is of the opinion also
has merit and consequently, it calls for it to be amended.
Rule 30 Application
77] Flemming J described the object of rule 30(1) as follows:
"I have no doubt that Rule 30(1) was intended as a procedure
whereby a hindrance to the future conducting of the litigation, whether
it is created by a non -observance of what the Rules of Court intended
or otherwise, is removed."23
78] Rule 30(3) contemplates a two -stage process. A court must first satisfy
itself that the proceeding or step is irregular or improper. If it is so s atisfied,
it has the wide power24 to set the proceeding aside in its entirety or in part,
grant leave to amend or make any order as it deems fit.
23 SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA
329 (O) at 333 G-H.
24 Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State
Information Technology Agency (SITA) SOC Ltd and Others (CCT 54/22) [2023]
ZACC 2; 2023 (4) BCLR 361 (CC) (24 January 2023) at para [26].
79] Before this Court there is certainly extensive overlapping with the relief
sought in the Rule 30 application and that sought in the Rule 23 application.
As the excipient has persuaded this Court to uphold the exception with the
resultant consequence of affording the plaintiff an opportunity to amend t he
particulars, I deem it superfluous to rule on the merits of the Rule 30
application. Conseuqently the Rule 30 application is postponed sine die.
ORDER
80] In the result the following order is made:
80.1 The Exception is upheld.
80.2 The Rule 30 Application is postponed sine die.
80.3 The Plaintiff’s particulars of claim is set aside.
80.4 The Plaintiff is ordered to amend his particulars of claim within 10 days
of the date of this order, failing which the second defendant may apply to
court for a dismissal of the plaintiff’s claim.
80.5 The Plaintiff is ordered to pay the second defendant’s costs on scale C
for Senior counsel and scale B for Junior counsel, in respect of the Rule 23
application.
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C. COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Counsel for the Plaintiff/Respondent: Adv. A.B. Roussouw SC
Adv. J.H.A Saunders
Instructed By: Riona Calitz Attorneys
Counsel for the 2nd Defendant/Excipient: Adv. G. Goedhart SC
Adv. H. Cassim
Instructed By: Norton Rose Fulbright South Africa
Inc.
Date of Hearing: 11 November 2024
Date of Judgment: 20 October 2025