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[2026] ZAGPJHC 633
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Mohammed v Mahmood and Another (21/41398) [2026] ZAGPJHC 633 (4 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 21/41398
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
NICHELLE
MOHAMMED
Plaintiff / Applicant
and
DR
ABDUL JALIL MAHMOOD
First Defendant / Respondent
AHMED
KATHRADA PRIVATE
Second Defendant / Respondent
HOSPITAL (PTY) LTD
JUDGMENT
DJ Smit, AJ
Introduction
[1]
This is an opposed application to amend
particulars of claim.
[2]
The plaintiff (
Ms
Mohammed
) sued the first defendant (
Dr
Mahmood
) and the second defendant (
the
hospital
) on 3 September 2021. Ms
Mohammed alleges that the defendants caused her bodily injury with
the result that she suffered general
damages (in the form of pain and
suffering and various other pleaded sequelae) and past hospital and
medical expenses.
[3]
Despite the passage of time since the
summons was served, the hospital has not pleaded. It has raised
objections against the particulars
of claim, and attempts to amend
it, four times. This is the first time that the hospital’s
objections serve before a court.
[4]
The hospital raises eight objections
against the most recent iteration of Ms Mohammed’s
proposed amendments. I deal with
each of them after setting out the
relevant allegations in the particulars of claim (as it is sought to
be amended).
Ms Mohammed’s
allegations
[5]
Ms Mohammed pleads (in her particulars of
claim as sought to be amended) that:
a.
During or about 19 November 2014, she
developed persistent abdominal pain, nausea and vomiting.
b.
She presented herself at the hospital’s
casualty department, which admitted her as an inpatient.
c.
The hospital, acting through its nursing
staff, selected or assigned Dr Mahmood, a surgeon, to be her
treating medical practitioner.
d.
The hospital has a duty to ensure that the
medical practitioner so appointed or assigned has the necessary
skills and competencies
to perform the medical procedures diligently
and with care and skill.
e.
Dr Mahmood diagnosed her with
cholelithiasis (gallstones) and advised her to receive an endoscopic
retrograde cholangiopancreatography.
f.
She underwent this procedure after which
Dr Mahmood advised her to undergo surgery (in the form of a
laparoscopic cholecystectomy,
i.e. removal of the gallbladder).
g.
She underwent the surgery. The hospital’s
nursing staff advised her that Dr Mahmood successfully performed
the surgery,
but that she had to be admitted to intensive care
because the surgery had to be more invasive than initially thought
and had resulted
in excessive internal bleeding.
h.
After she was discharged, her abdominal
pain persisted, which Dr Mahmood and the nursing staff
attributed to the bleeding.
i.
She suffered various further sequelae which
are not relevant for present purposes. In 2019, a physician
established that her gallbladder
had not been removed but had been
damaged by the surgery which necessitated further treatment.
j.
Dr Mahmood and the nursing staff
failed in their legal duties towards her in various ways.
Particularly relevant, for present
purposes, Ms Mohammed alleges
that the nursing staff had to conduct the nursing care with the
necessary care and skill and
had to disclose to Ms Mohammed that
her surgery was unnecessary and unsuccessful, which they did not do.
First objection: the
citation of the hospital
[6]
The hospital objects against the way in
which it has been cited. Ms Mohammed alleges that it is “
a
duly registered private healthcare company, registered as such in
terms of the
National Health Act, 61 of 2003
)
”.
[7]
The essence of the objection is that,
legally speaking, private hospitals are not “
registered
as such
” in terms of the
National
Health Act. The
hospital submitted that private hospitals are
inspected and licenced, but that this is a provincial competency. No
register for
private hospitals exists in terms of the
National Health
Act. The
licencing of private hospitals is intended to ensure that
the infrastructure of a hospital complies with the standards of a
healthcare
facility. This licencing is not a “
registration
”
per se, and the private hospital industry in South Africa is an
unregulated sector.
[8]
To assess this objection, as well as those
that follow, one has to bear in mind the essential principles
applicable to applications
to amend and exceptions. They are, insofar
as is relevant to this matter, as follows:
a.
The general principle is that amendments
should normally be allowed unless the application to amend is
mala
fide
, or unless such amendment would
cause an injustice to the other side which cannot be compensated by
costs.
b.
The
court will not allow an amendment to a pleading if the pleading as
amended would be excipiable. But, an amendment will only
be refused
on the ground that the amended pleading would be excipiable if it is
clear that the amendment would obviously render
the pleading
excipiable. If the pleading would appear to be possibly open to
exception or even if the court is of opinion that
the question of
whether or not the pleading is excipiable is arguable, it would seem
to be the more correct course to allow the
amendment.
[1]
c.
Whether
a pleading would or would not become excipiable is a matter of law
which should be decided by the court hearing the application
for
amendment. If the pleading is said to become excipiable on the basis
that it is vague and embarrassing, the onus is on the
excipient to
show both vagueness amounting to embarrassment and to embarrassment
amounting to prejudice. Where the excipient relies
on embarrassment,
such must be demonstrated by having regard to the pleadings only. The
attack must arise from within the four
walls of the pleading which is
the source of the complaint and what is more, such embarrassment must
not be frivolous, it must
be substantial. Therefore, the ultimate
test on whether an exception should be upheld is whether the
excipient is prejudiced.
[2]
d.
Particulars
of claim are excipiable as being vague and embarrassing only if the
ground of objection goes to the root of the cause
of action.
[3]
They are excipiable on the ground that the pleadings do not disclose
a cause of action only if the law affords no remedy even if
the
pleaded facts are true.
[4]
[9]
The hospital may well be right that a
portion of its citation is poorly pleaded, incorrect in fact or even
wrong in law. I express
no view on that, as it may be an issue for
another court. But even if it is wrong in fact or law, what follows
from it? The hospital
knows that it is it being cited. It can plead
to the citation. It is not prejudiced in the way contemplated by the
law on pleading.
The wrong citation (if it is wrong) does not affect
the cause of action, let alone go to its root or render it bad in
law.
[10]
Thus, the first objection has no merit.
Second objection:
prescription
[11]
The second to fifth objections all concern
the introduction of paragraph 5.5 into the particulars of claim.
Therefore, I quote it
in full:
“
5.
During or about 19 November 2014, the plaintiff: ….
5.5
Presented herself to the casualties’ department of the second
defendant where the plaintiff
was admitted to the hospital as an
in-patient. The second defendant through its nursing staff selected
and/or assigned the first
defendant, to be the medical practitioner,
to provide medical treatment and care to the plaintiff.
The
second defendant had a duty to ensure that the medical practitioner
so appointed and/or assigned, has necessary skills and competencies
to diligently perform the medical procedure with care and skill.
”
(emphasis
added)
[12]
The hospital argues that the underlined
portion of the pleading introduces a new cause of action which has
become prescribed.
[13]
This
objection is fundamentally misconceived. Regardless of whether the
amendment introduces a new cause of action (which I doubt,
but find
it unnecessary to decide), the test whether an amendment is
objectionable based upon the introduction of a prescribed
claim is
not
whether the amendment introduces a new cause of action, but whether
it claims for a new debt (as that term is used in the
Prescription
Act, 68 of 1969
).
[5]
[14]
Ms Mohammed still claims for the same
debt before and after her amendment, i.e. general damages and past
hospital and medical
expenses flowing from her treatment by
Dr Mahmood and the hospital in late-2014. There can be no
question of prescription
on this basis.
[15]
Thus, the second objection is
unmeritorious.
Third objection: lack of
particularity
[16]
The hospital complains that Ms Mohammed
did not specify in paragraph 5.5
who
admitted her. The allegation is that her pleading lacks the necessary
particularity required by
Rule 18(4)
, which specifies that:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon 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.”
[17]
The fact that Ms Mohammed did not
specify who admitted her may be due either to the fact that the
identity of the person does
not form a material part of her cause of
action; or that she does not know and hopes that discovery will
assist her, or both. In
my view, the omission of the identity of the
person who admitted her certainly does not leave her claim inchoate
or incomprehensible.
The hospital has not made out a case that she
was obliged to specify the identity to complete her cause of action.
[18]
The allegation under discussion is simply
that she was admitted as an in-patient. The hospital is perfectly
capable of pleading
thereto: either she was admitted, or she was not.
If it is part of the hospital’s defence that an independent
medical practitioner
for whose actions the hospital takes no
responsibility admitted her (as is foreshadowed in the hospital’s
heads of argument),
that is a matter which it may plead, and which
will form part of the evidence at trial.
[19]
The third objection has no merit either.
Fourth objection:
Unspecified legal duty
[20]
The hospital in argument laid specific
emphasis on the fourth objection, which concerned the allegation that
its the nursing staff
“
selected
and/or assigned
” Dr Mahmood
to Ms Mohammed and had a “
had
a duty to ensure that the medical practitioner so appointed and/or
assigned, has the necessary skills and competencies to diligently
perform the medical procedure with care and skill
”.
[21]
The hospital argues that its nurses do not
admit patients or select treating medical doctors; other doctors for
whose actions the
hospital takes no responsibility do so. This is
eminently an issue for a plea. It is not a matter of law (which may
be susceptible
to exception) but a matter of fact – what in
fact happened when Ms Mohammed was admitted and Dr Mahmood
attended
to her.
[22]
It could be true that nurses are not
supposed to admit patients, or to “
select
”
or “
assign
”
medical practitioners to patients, but this could be (and what is
pleaded to be) what in fact happened. The court does not
know and has
not conducted a trial. The hospital cannot object on the basis that
the facts pleaded by Ms Mohammed are either
untrue or are not
what is “
supposed to happen
”
– as I emphasise above, like an exception, an objection to an
amendment is disposed of within the four corners of
the pleading
against which objection is taken.
[23]
The hospital also argues that there is no
legal duty on a hospital to ensure that a medical practitioner
assigned (by its nursing
staff) to a patient has the necessary care
and skill, (perhaps) beyond being registered with the necessary
regulator.
[24]
There are several answers to this
objection:
a.
The “
duty
”
pleaded by Ms Mohammed is not of the same order as the “
legal
duties
” raised in cases like
Trustees, Two Oceans Aquarium Trust v
Kantey & Templer (Pty) Ltd
2006 (3)
SA 138
(SCA) which the hospital raised in its heads and in argument.
The legal duty raised in
Two Oceans
Aquarium
, and in similar cases, is the
legal duty not to cause pure economic loss. It is trite that the law
does not impose liability for
pure economic loss absent facts which
illustrate policy reasons to hold a defendant liable notwithstanding
the fact that pure economic
loss is concerned. Personal injury (which
is what Ms Mohammed pleads she suffered) is not the same. If a
defendant caused
personal injury, as the hospital is said to have
done, that is
prima facie
wrongful.
Absent circumstances like self-defence or necessity, no policy
considerations arise which would exclude liability
if
the other elements of a delict (
culpa
,
causation, and loss) are present.
b.
As
I read it, the duty pleaded by Ms Mohammed is not a duty in the
abstract. It is a duty said to arise from the preceding
pleaded
facts, including that the nurses admitted her and selected the
medical practitioner. Although this was not fully debated
before me,
and I therefore express no firm view on it, it seems that – at
least notionally – a duty of appropriate
admission and
selection could arise
if
the facts pleaded by Ms Mohammed are true.
[6]
c.
I am not convinced that the pleading of
this “
duty
”
would be excipiable in any event, given the principles set out above.
It does not seem to me to be the only allegation on
which the alleged
liability of the hospital to Ms Mohammed is based; in argument,
counsel for Ms Mohammed laid much more
emphasis on the
hospital’s alleged duty (through its nursing staff) to inform
Ms Mohammed of the allegedly unsuccessful
surgery. Thus, such an
exception would not go to the root of the cause of action, and
neither would it concern the legal validity
of the (whole of) the
cause of action.
[25]
The misconceived approach to this objection
(and others) appears from the hospital’s view (expressed in
counsel’s heads
of argument) that:
“
At
the heart of this opposition, is the Plaintiff’s fundamental
misunderstanding of the private healthcare system in South
Africa,
and the roles and responsibilities of the First Defendant, the
surgeon, an independent practitioner vis-à-vis the
roles and
responsibilities of the Second Defendant, a hospital where the
patient was admitted, and which is legally only allowed
to employ the
nursing and auxiliary staff to assist in the running of the
hospital.”
“
These
fundamental misunderstandings have been incorporated into the
Plaintiff’s particulars of claim and which render them
objectionable and will be perpetuated in the amended particulars of
claim, should this amendment succeed.”
[26]
The hospital may be right or wrong that
Ms Mohammed fundamentally misunderstands the private healthcare
system and the way
in which hospitals, nursing staff and medical
practitioners are supposed to interact. But that does not mean an
objection lies
at the level of pleading. These “
misunderstandings
”
(if they are such) appear to me generally to be issues of fact, to be
resolved at trial. This appears most obviously from
the fact that the
hospital attempted to introduce a series of propositions of fact in
its heads of argument in order to correct
what it perceives
Ms Mohammed’s misunderstanding to be. Examples are the
following submissions:
“
The
doctors who treated the patient at the Hospital, are independent
practitioners who operate independently of the Hospital and
are
solely responsible for the surgeries and treatments they render to
their patients as well as the medical services within the
Casualty.”
“
The
Second Defendant as the operator of a hospital, does not make
clinical decisions about the care of a patient, specifically was
not
responsible for the decision to admit the patient or any aspect of
the surgical management of the patient.”
[27]
These submissions may well be correct. But
they fall to be proven at trial.
[28]
The fourth objection has no merit.
Fifth objection: mutually
destructive versions
[29]
The hospital complains that there is a
fundamental contradiction between the allegation in paragraph 5.5. of
the particulars of
claim (as it is to be amended) that the hospital
had a duty to ensure that Dr Mahmood “
has
necessary skills and competencies to diligently perform the medical
procedure with care and skill
”
and the allegation earlier that Dr Mahmood is a specialist
rendering services for his own account.
[30]
This objection fails for the reasons set
out above: it is not beyond the realm of possibility, for example if
the pleaded facts
regarding “
selection
”
or “
assignment
”
are true, that the hospital could incur liability based upon its own
negligence (assuming that such negligence is proven).
Sixth objection:
conflation of duties of the hospital and the medical practitioners
[31]
This objection was taken to paragraphs 11,
13, 14 and 15 of the particulars of claim (as they are to be
amended). In these paragraphs,
Ms Mohammed describes what she
perceives to be the duties of Mr Mahmood and the nursing staff
to treat her (medically,
speaking) with the necessary care, skill and
diligence.
[32]
The hospital complains that these
paragraphs in some respects conflate Dr Mahmood’s duties
with those of the nursing
staff. It submits, based on the relevant
legislation and ethical codes, that the duties of the nursing staff
differ from that of
the medical practitioner.
[33]
As a matter of law, it may well be true
that nursing staff is not supposed to engage in certain activities
(which may be reserved
for medical practitioners). But that does not
mean that, on the facts, they did not do so. Whether or not they did,
and what consequences
may arise from that, is a matter for trial.
[34]
Further, Ms Mohammed clearly
distinguished in the pleading between Dr Mahmood’s and the
nursing staff’s respective
duties to inform her,
post-operatively, of what she perceives to be the unsuccessful nature
and the adverse outcomes flowing from
the surgery. Again, it is no
answer to say that the nursing staff’s ethical code prohibits
such discussions (if indeed it
does). For example, if the nursing
staff did inform her of certain repercussions, as a matter of fact,
but misstated or omitted
crucial information, it is not beyond the
realm of possibility that a court could impose liability despite the
ethical considerations
highlighted by the hospital. Again, I express
no firm view on that issue.
[35]
For this reason, the sixth objection also
fails.
Seventh objection:
“obscure legal duty”
[36]
For much the same reasons as set out above,
the hospital specifically takes issue with Ms Mohammed’s
pleading that the
nursing staff failed to inform her whether the
surgery was conducted with the necessary diligence, skill, care and
competence;
and to inform her of its (allegedly) unsuccessful
outcome.
[37]
The hospital takes the view that there is
no such duty on the nursing staff, for ethical and factual reasons,
and that there is
no causal connection between the failure to inform
and Ms Mohammed’s injury.
[38]
I express the view above that such a duty
could notionally arise, despite the ethical constraints mentioned by
the hospital, if
other allegations made by Ms Mohammed are true.
Further, Ms Mohammed has pleaded a notional causal connection
between
the failure to inform and the injury in that she pleaded a
continuation of her pain and discomfort between her discharge from
the
hospital in 20914 and her (putatively correct) diagnosis in 2019,
which could have been prevented had she possessed what she describes
as the true information.
[39]
For this reason, the seventh objection
lacks merit.
Eighth objection: lack of
particularity regarding damages
[40]
The essence of the eighth objection is that
Ms Mohammed pleaded globular amounts in respect of medical and
hospital expenses;
and general damages. This is said to be
inconsistent with the provisions of
Rule 18(10):
“
(10)
A plaintiff suing for damages shall set them out in such manner as
will enable the defendant reasonably to assess the quantum
thereof:
Provided that a plaintiff suing for damages for personal injury shall
specify his or her date of birth, the nature and
extent of the
injuries, and the nature, effects and duration of the disability
alleged to give rise to such damages, and shall
as far as practicable
state separately what amount, if any, is claimed for —
(a)
medical costs, hospital costs and
other similar expenses and how these costs and expenses are made up;
(b)
pain and suffering, stating whether
temporary or permanent and which injuries caused it;
(c)
disability in respect of —
(i)
the earning of income (stating the
earnings lost to date and how the amount is made up and the estimated
future loss and the nature
of the work the plaintiff will in future
be able to do);
(ii)
the enjoyment of amenities of life
(giving particulars) and stating whether the disability concerned is
temporary or permanent;
and
(d)
disfigurement, with a full description
thereof and stating whether it is temporary or permanent.
”
[41]
I do not think the way in which Ms Mohammed
pleaded her injury and damages is ideal and, arguably, it is
inconsistent with
Rule 18(10).
But this is not an application in
terms of
Rule 30(1)
or
30A
relating to irregular proceedings or
non-compliance with the rules. The touchstone remains whether the
hospital is prejudiced by
the amendment.
[42]
As Ms Mohammed pointed out, she has
discovered and also annexed to her founding affidavit in this
application, extensive medical
records including her medical and
hospital expenses. These will enable the hospital to discern and
distinguish between her medical
and hospital expenses, besides other
information regarding her condition and treatment.
[43]
In relation to general damages, they are
necessarily more impressionistic. In addition, they will need to be
particularised in expert
reports to be delivered before trial. They
are currently pleaded at a level which is understandable at the stage
of formulating
a claim. And they are not entirely devoid of detail
either: Ms Mohammed pleads, for instance, that she suffered
“
continuous abdominal pain and
discomfort associated with the unnecessary surgery and the
ill-advised subsequent treatment…
”
and “
scarring being an unsightly
keloid scar of the plaintiff’s abdomen measuring 10 x 2 cm in
diameter
”.
[44]
Thus, I conclude that the eighth objection
also fails.
Costs
[45]
Ordinarily,
a party effecting an amendment of its pleadings is liable for the
reasonable costs of the amendment. In the event of
opposition,
however, the appropriate costs order depends (among other potentially
relevant factors) on whether the opposition was
reasonable and not
vexatious or frivolous. Costs may be awarded against the party
opposing the amendment if the objection was “
devoid
of substance
”,
“
raised
an issue which fell to be decided on the facts of the case
”,
“
had
no prospects of success
”
or was “
unwarranted
”.
[7]
[46]
For the reasons set out above, the
hospital’s opposition – although not frivolous or
vexatious – was misconceived
in principle and ill-advised, so
that a costs order against it is warranted. Both counsel agreed that
scale B would be appropriate.
Order
[47]
I make the following order:
a.
The plaintiff is granted leave to amend her
particulars of claim in accordance with her notice of intention to
amend dated 25 October
2022.
b.
The plaintiff is directed to effect such
amendment by serving and filing the amended pages of her particulars
of claim within 10
days of the granting of the above order.
c.
The second defendant is ordered to pay the
costs of this application, including the costs of counsel on scale B.
DJ SMIT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of hearing: 6 March
2026
Date of judgment: 4 June
2026
For the Applicant:
C
Read instructed by Moja Sibiya Attorneys Inc.
For the Respondent:
H
Cassim instructed by Norton Rose Fulbright South Africa
[1]
Crawford-Brunt
v Kavnat
1967 (4) SA 308
(C) at 310D-311A.
[2]
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
2003 (2) SA 620
(T) paras 5-6.
[3]
Jowell
v Bramwell-Jones
1998 (1) SA 836
(W) at 902F-G.
[4]
Trope
v South African Reserve Bank
1993 (3) SA 264 (A).
[5]
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 825F–G.
[6]
South African law in limited circumstances permits liability that
flow directly from the actions of third parties if the defendant’s
actions formed part of a sufficiently-proximate causal chain causing
the damages and were guilty in themselves: see e.g.
Chartaprops
16 (Pty) Ltd v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA);
Holtzhausen
v Cenprop Real Estate (Pty) Ltd
2021 (4) SA 221
(WCC);
Bayer
South Africa (Pty) Ltd v Frost
1991 (4) SA 559 (A).
[7]
See
e.g.
Gcanga
v AA Mutual Insurance Association Ltd
1979 (3) SA 320
(E) at 328F-329B.