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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Reportable/ not Reportable
Case No:4733/2024
In the matter between:
DR LOFEMBE EKOFO EXCIPIENT/ FIRST DEFENDANT
DR LESEGO ISMAEL MOKAED SECOND DEFENDANT
AND
B[...] B[...] A[...] RESPONDENT/PLAINTIFF
Coram: MNYOVU AJ
Date heard: 28 May 2026
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 4 September 2026 at 14h00.
ORDER
1. The exception is dismissed with costs on scale B.
JUDGMENT
MNYOVU AJ
Introduction
[l] The excipient is the first defendant a duly qualified, registered medical
practitioner as cited in his capacity as doctor in the action instituted in the
above-mentioned case number. T he first defendant except to the plaintiff’s
amended particulars of claim in that they are vague and embarrassing,
alternatively, lacking averments that are necessary to sustain a valid cause of
action. The second defendant is a duly qualified registered medical practitioner
and not an excipient, is cited as party in the main action, and t he plaintiff is
cited as respondent in the exception.
[2] To sustain a cause of action, a plaintiff’s amended particulars of claim
must contain the necessary facta probanda, which would be necessary for the
plaintiff to prove if traversed, in order to support the plaintiff’s right to
judgement.
[3] In casu, the plaintiff’s cause of action is rooted on 24 May 2023 and 08
June 2023 by first defendant accepting the plaintiff as a patient for the purposes
of providing her with obstetric and gynaecological medical treatment and care
following her pregnancy, and after consultations and ultra sounds performed by
first defendant, he referred her to the second defendant to provide her with a
general practitioner’s medical treatment and care relating to the termination of
her pregnancy which resulted to severe complications.1
[4] As a result of the first and second defendants accepting the plaintiff as a
patient, a professional relationship of doctor and patient arose and was in
existence, that is not deniable.
Amendment particulars of claim
[5] Paragraph 3, 4, 6 and 7 of excepted amended particulars of claim dealt
with the actions of the first defendant, where he accepted the plaintiff as patient,
at the respective practice , consulted with the plaintiff verbally, and the plaintiff
agreed to consult with the second respondent based on his advise, which means
he provided a duty of care to the patient, as expected as a medical practitioner,
in cases, where there is a breach of such legal duty of care, the plaintiff with
concrete evidence, the plaintiff has full legal right to sue medical doctor on
medical negligence where there is an existing engagement. The defendants can
raise their defences on legal grounds.
[6] Paragraph 19 deals with the pain, discomfort and suffering experienced
by the plaintiff because of removal of her fallopian tube that burst due to
medical negligence by the first and second defendants. Paragraph 20 deals with
the assessment of the damages, the quantum.
1 McKenzie v Farmers’Co-Operatiove Meat Industries Ltd 1922 AD 16 at 23.
Applicable Law
[7] Rule 23: Exceptions
(1) where any pleading is vague and embarrassing or lacks averments,
which are necessary to sustain an action or defence, as the case maybe,
an opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and may set it down for
hearing. . .
(2) . . . .
(3) whenever an exception is taken to any pleading the grounds upon
which the exception is founded shall be clearly and concisely stated.
[8] The court shall not grant the same unless it is satisfied that the excipient
will be prejudiced in the conduct of his defence if exception be not granted.
[9] The general applicable principles are laid down in Merb (Pty) Ltd v
Matthews and Others (2020/15069) in paragraph 8, under (a) is stated as
follows: in considering the 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.
Grounds for exception
[10] The ground of exception raised is that the amendment particulars of
claim do not comply with Rules18 (4), (6) and (10) of the Uniform Court Rules
which provide as follows:
Rule 18(4) - 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 pleadings or the case may be, with
party to reply thereto.
Rule 18(6) - a party who in his pleadings relies upon a contract
shall state whether the contract is written or oral, and when, where,
and by whom it was concluded, and if the contract is written a true
copy thereof or of the part relied on in the pleading shall be
annexed to the pleading.
Rule 18(10) -a plaintiff suing for damages shall set them out, in
such a manner as will enable the defendant reasonably to assess the
quantum thereof. . .
[11] The excipient’s first ground raised is that the plaintiff, at paragraph 6 in
her particulars of claim s plead s a special relationship that existed “at all
material times ”, this statement is prejudicially vague as it fails to state
unequivocally what governs the relationship, the terms, conditions were entered
into, and the consequences thereof, the plaintiff does not state how accepting a
consultation amounted to an admission, that resulted in her ectopic pregnancy
consultation, and there is an absent contractual relationship between the
plaintiff and first defendant, in essence the cause of action does not arise, the
first defendant would be embarrassed where he is required to plead, these
particulars are not compliant with Rule 18(4) and Rule 18(6).
[12] There is no merit in this first ground of exception, the averments set out
by the plaintiff contain facta probanda, primary and material facts which would
be necessary for the plaintiff to prove her case, it cannot be deducted that the
plaintiff can rely on a verbal agreement whereas there were physical
consultations between the plaintiff and the first defendant on 23 May and 08
June 2023, that led first defendant to refer the plaintiff to the second defendant
to attend the plaintiff, in deed there was a special professional relationship that
existed between the first defendant and the plaintiff, doctor and patient
relationship, that cannot be deniable, the cause of action is undoubtedly vested
from the first defendant by virtue of the consultations, on the professional
doctor and patient relationship , the excipient can plead to that, either admit or
deny if he never consulted with the plaintiff, I find nothing embarrassing in
such averment unless the first respondent is not a qualified, registered medical
practitioner to perform his legal medical duties.
[13] The excipient ‘second ground of exception into plaintiff’s amendment
particulars of claim, at paragraph 7 in which the plaintiff alleges legal duty that
arose between her and the first defendant, does not have merit as I have alluded
in paragraph 12 of this judgement, I find this allegation as repeat that is not
sustainable but ambiguous to this application.
[14] The excipient third ground of exception into plaintiff’s particulars of
claim, at paragraph 19.2, 19.3, 19.4 and 19.5 in which the plaintiff alleges to be
suffering from pain, suffering from discomfort, and that she will continue to
experience pain, suffering and discomfort because of the complications are
material facts that the excipient can fully be able to plead on, the plaintiff can
provide the necessary evidence in her discovery in terms of Rule 35, medical
experts, for purposes of trial to sustain those averments, they will make out a
case, as a result there is no merit in this ground of exception.
[15] The excipient fourth ground of exception into plaintiff’s particulars of
claim, at paragraph 20.1 and 20.2 providing general damages in the amount of
R1 924 000.00 and special damages in the amount of R77 329.33 do not have
merit as I have alluded in paragraph 1 4 of this judgement, he plaintiff can
provide the necessary evidence in her discovery in terms of Rule 35, an expert,
actuary report, to sustain those averments, they will make out a case, I do not
find any irregular steps in terms of Rule 30(2) (b) or Rule 23 (1) in the
plaintiff’s averments in particulars of claim , I am of the view that the plaintiff
did established the cause of action on primary and material facts that can be
pleaded by the first and the second defendant.
Analysis
[16] It is common cause that, the first defendant as medical doctor consulted
with the plaintiff as patient on 23 May 2023 and 08 June 2023, on professional
level, she received medical advice, referrals to be assessed by another medical
practitioner, the second defendant, which automatically an doctor and a patient
relationship was established.
[17] By virtue of the above, the first and second defendant had a legal medical
duty of care towards the plaintiff, I am of the view that the relationship between
the first defendant and the plaintiff was the evidence given to support facta
probanda, the first defendant in his exception taking an advantage of a technical
flaw to dispose the case in an expeditious matter to protect himself from
litigation, and leave the whole litigation to the second defendant, I am of the
view that this over -technical approach destroys the usefulness of the exception
procedure without legal merit, the first defendant avoiding to either admit or
deny to the allegations.
[18] The facta probanda are all set out in the amended particulars of claim ,
the cause of action is undoubtedly vested in the amended particulars of claim . .
. paragraphs 3, 4, 6 and 7 deal with actions of the first defendant, excipient can
plead to these allegation s, they are not vague or embarrassing , the 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, the second defendant as joined in
the pleadings in the main action must stand the trial with the first defendant on
the same pleadings not separately.
[19] The excipient’s complaints that plaintiff’s particulars of claim constituted
an irregular step and are exceptiable pursuant to the provisions of Rule 23(1),
30 (2) (b), read together with rule 18 of the Uniform court rules are misplaced,
there are facta probanda at most, the amended particulars of claim as its stands
provide for the leading of evidence, which evidence, if led can disclose a cause
of action.2
Conclusion
[20] Having considered the evidence before me, the excipient have not been
able to show that the amended particulars of claim are excipiable in every
interpretation that can reasonably be attached to it, I could not find any serious
prejudice to be suffered by the first defendant in disclosing his defence, let
alone the embarrassment, the excipient is the first defendant in the main
application to plead his case without any embarrassment, the exception stands
to be dismissed with costs.
Order
[21] In the result, I make the following order:
21.1 The exception is dismissed with costs on scale B.
B. F. MNYOVU
ACTING JUDGE OF THE HIGH THE COURT
NORTH WEST HIGH COURT, MAHIKENG
2 See Mckelvey v Cohen N.O.1980 (4) SA 525 (2) 526 (D).
Appearances:
For the Excipient/1st defendant : Adv. C J Zwiegelaar
Instructed by: Bartell Mckellar Attorneys
C/o Nienaber &Wissing Attorneys
Mahikeng
For the Respondent/ Plaintiff: Adv. JA Du Plessis
Instructed by: Lekhu Pilson Attorneys
C/o Tlou Attorneys
Mahikeng