2
pleadings or creating unpleaded cause of action - Six special pleas dismissed with
costs.
Summary: The plaintiff instituted an action for damages arising from alleged
negligent medical treatment received at public hospitals falling under the control
of the defendant. He alleges, amongst other things, that medical personnel
employed by the defendant negl igently prescribed medication, failed adequately
to examine and monitor him, failed appropriately to respond to adverse
consequences of the medication, and failed timeously to involve specialist
ophthalmological care following the development of Stevens-Johnson Syndrome.
The defendant pleaded to the action in 2019. Dr Kurata was initially cited as the
second defendant, but the action against him was withdrawn in August 2020. The
litigation thereafter continued against the present defendant and proceeded
through expert and Rule 37 pre-trial processes.
During the pre-trial process the defendant expressly admitted, inter alia, that the
doctors and nurses involved were acting in the course and scope of their duties,
while expressly declining to admit medical negligence. At a considerably later
stage, the defendant amended its plea and raised six special pleas concerning
non-joinder, vicarious liability, the sufficiency of the pleaded delictual cause of
action, failure adequately to plead a contract, reliance upon contract and delict,
and failure to allege a legal duty.
Held: Pre-trial proceedings serve to identify and crystallise the issues requiring
determination at trial. The trial proceeds upon the dispute remaining after
admissions and concessions have been made. An express pre -trial admission
which has not been withdrawn cannot, without more, be undone by the
subsequent delivery of an inconsistent pleading: Nel and Others v Cilliers
(197/2023) [2024] ZASCA 57; Filta-Matix (Pty) Ltd v Freudenberg and Others
1998 (1) SA 606 (SCA).
The defendant’s admission concerning course and scope was deliberate and
The defendant’s admission concerning course and scope was deliberate and
unambiguous. Its contemporaneous refusal to admit negligence demonstrated
that it consciously distinguished between what was made common cause and
what remained in dispute. The subseq uent special plea concerning vicarious
liability could not revive course and scope as an issue. Negligence and causation,
however, were not admitted and remained for determination at trial.
The non-joinder plea concerning Dr Kurata was dismissed. His involvement was
known from the outset and the action against him had been withdrawn in 2020.
The defendant thereafter continued to participate in the litigation before raising
non-joinder at a considerably later stage. The aforesaid procedural history was
relevant but not determinative: delay or prior participation cannot dispense with
joinder where a person ha s a direct and substantial legal interest in the order
sought.
The decisive question was whether Dr Kurata possessed a direct and substantial
3
legal interest in the order sought. Although his treatment might be relevant to
factual and legal causation, no relief was sought against him and no order would
determine his rights or liabilities. An interest in factual findings which might be
made concerning his treatment was not, without more, a direct and substantial
legal interest requiring joinder. The defendant remained entitled to advance an y
properly pleaded causation defence based upon his treatment.
The vicarious -liability plea was inconsistent with the defendant's express
admission concerning course and scope. The effect of the admission was limited.
Negligence and causation were not admitted and remained for determination at
trial.
Held further: There is a material procedural distinction between an exception and
a special plea. An exception ordinarily tests the legal sufficiency of the plaintiff’s
pleading upon the allegations contained therein, whereas a special plea ordinarily
introduces matter extraneous to the pleading which, if established, defeats or
postpones the plaintiff’s claim: Jugwanth v Mobile Telephone Networks (Pty) Ltd
(529/2020) [2021] ZASCA 114.
The third, fourth and fifth special pleas were substantially directed at alleged
deficiencies apparent from the particulars of claim themselves and were
accordingly objections of the kind ordinarily raised by exception. The Court
nevertheless considered the substance of the objections.
The fourth special plea complained that the plaintiff's contractual allegations did
not comply with the requirements applicable to a contractual cause of action. No
finding was made that the plaintiff had adequately pleaded a separate contractual
cause of action or complied with 18(6). The alleged deficiency did not, however,
constitute a special defence defeating or postponing the independently pleaded
delictual medical-negligence claim.
The simultaneous presence of contractual and delictual allegations did not render
The simultaneous presence of contractual and delictual allegations did not render
the independently identifiable delictual claim fatally defective. The latter concerned
bodily injury allegedly caused by negligent medical treatment and did not depend
for its existence upon the alleged contract.
The sixth special plea was dismissed. Wrongfulness and negligence are distinct
enquiries. The particulars contained the factual foundation upon which the plaintiff
relied for both. A medical-negligence claim is not legally deficient merely because
some of the conduct complained of consists of omissions. Whether the omissions
were wrongful, negligent and causally connected to the plaintiff’s harm remained
matters for determination at trial.
Expert joint minutes perform an important case -management and evidential
function in narrowing issues, but experts cannot amend pleadings or create an
unpleaded cause of action. That principle is distinct from the effect of an express
admission made by a litigant itself during the Rule 37 process.
4
The significance of the procedural history could not be ignored. The defendant
had pleaded to the action, participated in its subsequent conduct and made
express admissions during the pre -trial process before introducing special pleas
which, in material re spects, sought either to revisit matters previously made
common cause or to challenge alleged deficiencies apparent from the plaintiff’s
pleadings at an earlier stage. The aforesaid history did not itself determine the
special pleas but formed part of the context in which they fell to be adjudicated.
Nothing in the judgment determined whether the defendant's medical personnel
were negligent or whether any negligence caused the plaintiff's alleged harm.
Those issues remained for determination at trial.
All six special pleas dismissed with costs.
JUDGMENT
M VAN NIEUWENHUIZEN, AJ:
INTRODUCTION
[1] This matter concerns six special pleas raised by the defendant in an
amended plea delivered in December 2025 in an action for damages
arising from medical treatment received by the plaintiff at various public
hospitals falling under the control of the defendant.
[2] The action was instituted in 2018. The defendant delivered its original plea
during April 2019. The litigation thereafter progressed through expert
processes and a Rule 37 pre -trial conference was held on the 2nd of
November 2023.
[3] During the pre-trial process the defendant made material admissions. Of
particular significance, it admitted that the doctors and nurses involved
were, at all material times, acting in the course and scope of their duties.
It expressly declined, however, to admit medical negligence.
[4] Approximately two years later on or about the 12th of December 2025,
5
the defendant delivered an amended plea containing six special pleas.
Certain of those pleas seek to place in issue matters previously admitted.
Others challenge the legal sufficiency of the plaintiff's particulars of claim.
[5] The special pleas must accordingly be considered not only by reference
to their formulation, but also against the procedural history of the litigation
and the issues which had already been narrowed during the pre -trial
process.
THE PLAINTIFF'S CLAIM
[6] The plaintiff's claim arises from medical treatment received during 2016
at hospitals and medical facilities identified in his particulars of claim.
[7] He alleges that medical personnel employed by the defendant prescribed
medication to him and that the treatment thereafter afforded to him was
negligent.
[8] The pleaded grounds of negligence include allegations that the medical
staff failed properly to examine the plaintiff; prescribed incorrect
medication; failed to determine whether the medication was appropriate
and safe; failed adequately to respond to its consequences; delayed in
withdrawing it; failed adequately to examine and monitor him after
adverse effects were reported; failed to adhere to the professional
standard reasonably expected of medical practitioners; and failed
timeously to involve speciali st ophthalmological care following the
development of Stevens-Johnson Syndrome.
[9] The plaintiff further alleges that the relevant medical personnel acted
wrongfully and negligently and that their conduct caused the injuries and
damages for which compensation is claimed.
[10] Whether those allegations are ultimately established by the evidence is
not presently before this Court. The present enquiry concerns the six
special pleas.
6
THE RULE 37 PRE-TRIAL PROCEEDINGS
[11] Rule 37 is not merely an administrative formality. Its purpose includes
identifying what is genuinely in dispute, removing what is not, narrowing
the issues requiring adjudication and facilitating the efficient conduct of
the trial.
[12] In Filta-Matix (Pty) Ltd v Freudenberg and Others,1 the Supreme Court of
Appeal held that, absent special circumstances, a party should not be
permitted to resile from an agreement deliberately reached at a pre -trial
conference. To permit otherwise would undermine the very purpose of the
pre-trial process.
[13] More recently, in Nel and Others v Cilliers,2 the Supreme Court of Appeal
again emphasised the significance and binding character of the pre -trial
process. The Court held that pre -trial proceedings are important legally
binding proceedings in which the issues to be determined at trial are
identified and crystallised. The trial proceeds upon the dispute which
remains after admissions and concessions have been made. The
concession in that matter had not been withdrawn when the party
concerned had the opportunity to do so and the party was held to it.3
[14] The principle is particularly apposite in casu. The defendant was
expressly asked whether it admitted that the doctors and nurses involved
were, at all material times, acting in the course and scope of their duties.
It answered affirmatively.
[15] When separately asked whether it admitted medical negligence on the
part of the aforesaid medical personnel, the defendant answered in the
1 Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) at 614B-D
2 Nel and Others v Cilliers (197/2023) [2024] ZASCA 57
3 Ibid para 16-18
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negative.
[16] The juxtaposition is significant. The defendant consciously distinguished
between a fact which it was prepared to make common cause and an
issue which it wished to preserve for determination at trial. Course and
scope was removed from dispute; negligence was not.
[17] This is therefore not a case involving an ambiguous statement from which
an admission is sought to be inferred. It concerns an express admission
made in response to a direct question during the process designed to
identify and crystalise the issues for trial.
[18] A subsequently amended plea does not, without more, extinguish such an
admission. Were it otherwise, the narrowing of issues achieved under
Rule 37 could readily be undone by the unilateral delivery of an
inconsistent pleading. That would be inimical to th e purpose of the pre -
trial process identified in both Filta-Matix4 and Nel v Cilliers.5
[19] This does not mean that a party may never be permitted to resile from a
pre-trial admission. Filta-Matix 6 recognises that special circumstances
may justify departure from a pre -trial agreement. Nel v Cilliers 7 is
significant in this regard because the Supreme Court of Appeal expressly
noted that the concession in that matter had not been withdrawn when the
party had the opportunity to do so.
[20] In the present matter there is no application to withdraw the relevant
admission and no special circumstances have been demonstrated which
4 Filta-Matix (Pty) Ltd v Freudenberg and Others supra
5 Nel and Others v Cilliers supra
6 Filta-Matix (Pty) Ltd v Freudenberg and Others supra
7 Nel and Others v Cilliers supra
8
would justify releasing the defendant from it.
[21] The importance of the parties defining the issues is not confined to
admissions. In Nel v Cilliers8 the Supreme Court of Appeal also held that
it was impermissible for a Court to determine an issue which had not been
pleaded or fully canvassed at trial, particularly where doing so caused
prejudice. In reaching that conclusion the Court applied Minister of Safety
and Security v Slabbert 9 and Fischer and Another v Ramahlele and
Others.10
[22] The aforesaid principles provide the procedural framework within which
the special pleas must be considered.
FIRST SPECIAL PLEA: NON-JOINDER OF DR KURATA
[23] The first special plea concerns the alleged non-joinder of Dr MT Kurata.
[24] Dr Kurata is not a person whose possible involvement in the plaintiff’s
treatment emerged only at a late stage of the proceedings. He was
originally cited as the second defendant. The action against him was
withdrawn on 17 August 2020. The defendant was therefore aware, from
that time, that the plaintiff intended to pursue the action against the
present defendant without seeking relief against Dr Kurata.
[25] The litigation nevertheless continued. The defendant pleaded to the
plaintiff’s case and participated in the subsequent conduct of the
proceedings. The matter proceeded through the expert and pre -trial
processes without the defendant then contending that Dr Kurata’s
8 Nel and Others v Cilliers supra
9 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para
11
10 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014]
3 All SA 395 (SCA) paras 13-14
9
absence rendered the action incapable of determination.
[26] It was only approximately two years later and approximately five years
and four months after the action was withdrawn against Dr Kurata that the
defendant sought by way of special plea, to contend that Dr Kurata was a
necessary party.
[27] The aforesaid procedural history is relevant, although it is not in itself
determinative. Delay or prior participation in proceedings cannot dispense
with the joinder of the person who, in law, has a direct and substantial
interest in the order sought. The determinitive enquiry therefore remains
whether Dr Kurata possesses such an interest.
[28] The test for necessary joinder is settled. It is not sufficient that an absent
person has an interest in the facts or even in findings which may be made
in the course of litigation. The person must have a direct and substantial
legal interest in the order which the Court may make – an interest which
may be prejudicially affected by that order.11
[29] No relief is sought against Dr Kurata. The plaintiff deliberately withdrew
the action against him in 2020. No order in the present proceedings will
impose an obligation upon him, deprive him of a right or determine any
liability on his part to the plaintiff.
[30] The defendant contends, nevertheless, that Dr Kurata’s treatment
remains relevant to determining whether the defendant is liable and, if so,
to what extent. Indeed, in its plea over the defendant alleges that his
treatment constituted an independent factual cause of the consequences
suffered by the plaintiff.
[31] That contention demonstrates why it is necessary to distinguish an
11 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) and Gordon v
Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA)
10
interest in the factual findings which may be made from a direct and
substantial legal interest in the order sought. Dr Kurata’s treatment may
well be relevant to factual and legal causation. Although it does not,
without more, make him a necessary party.
[32] The Trial Court may be required to consider whether the conduct of Dr
Kurata constituted an intervening or independent cause or otherwise
bears upon the causal connection between the conduct attributed to the
defendant’s employees and the harm suffered by the plaintiff. Such an
enquiry does not require the Court to determine liability as between the
plaintiff and Dr Kurata.
[33] The withdrawal of the action against Dr Kurata does not prevent the
defendant from advancing a properly pleaded causation defence based
upon his treatment or from leading admissible evidence relevant to that
defence.
[34] The procedural history reinforces rather than determines the aforesaid
conclusion. Dr Kurata’s identity, his involvement and the withdrawal of the
claim against him have been known to the defendant since 2020. The
defendant thereafter participated in the litigation without treating his
presence as indispensable. Although the aforesaid conduct cannot confer
jurisdiction over an absent necessary party or cure a true non -joinder, it
provides context for the belated assertion that the litigation cannot now
proceed without him.
[35] What remains absent from the special plea is a basis for concluding that
the order sought against the defendant will itself prejudicially affect a
direct and substantial legal interest of Dr Kurata.
[36] The first special plea must accordingly be dismissed.
SECOND SPECIAL PLEA: VICARIOUS LIABILITY
[37] The second special plea alleges that the plaintiff failed to plead that the
11
persons who treated him at certain hospitals were acting within the course
and scope of their employment. The amended plea seeks the striking out
of the relevant allegations on that basis.
[38] In Loureiro and Others v iMvula Quality Protection (Pty) Ltd , 12 the
Constitutional Court restated the requirements for the imposition of
vicarious liability: the employee must have committed a delict; an
employer-employee relationship must exist; and the delict must have
been committed while the employee was acting wi thin the course and
scope of employment. The case itself involved both contractual and
delictual liability arising from the same broad factual matrix.
[39] There is, however, a more immediate answer to the second special plea.
[40] The defendant expressly admitted during the Rule 37 process that the
doctors and nurses involved were acting in the course and scope of their
duties.
[41] The defendant cannot require the plaintiff to prove a fact , which it has
formally admitted and has not withdrawn.
[42] The defendant's express denial of negligence immediately thereafter
confirms the limited ambit of its admission. It did not concede liability. It
conceded course and scope while preserving the issues of negligence
and causation for trial.
[43] This is consistent with the defendant's plea over. In relation to the
Charlotte Maxeke medical staff, for example, the defendant expressly
admits that they acted within the course and scope of their employment
when prescribing the medication.
12 Loureiro and Others v iMvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC)
para 50
12
[44] It bears emphasis that the effect of this conclusion is limited. The plaintiff
remains required at trial to establish the negligence relied upon and the
requisite causal connection between any such negligence and the harm
for which damages are claimed. What no longer requires determination is
whether the relevant medical personnel were acting in the course and
scope of their duties.
[45] Holding the defendant to that admission does not amount to a finding of
liability. It merely preserves the distinction which the defendant itself drew
between what was admitted and what remained in dispute.
[46] The second special plea must accordingly be dismissed.
THE NATURE OF THE THIRD, FOURTH AND FIFTH SPECIAL PLEAS
[47] Although styled as special pleas, the third, fourth and fifth special pleas
are directed substantially at the legal sufficiency of allegations appearing
in the particulars of claim themselves.
[48] There is a material procedural distinction between an exception and a
special plea. In Jugwanth v Mobile Telephone Networks (Pty) Ltd ,13 the
Supreme Court of Appeal considered that distinction. An exception is
determined upon the pleading as it stands: the excipient is confined to the
allegations contained in the pleading, which are accepted as correct for
purposes of the exception, and may not introduce fresh matter. A special
plea, by contrast, ordinarily introduces matter outside the plaintiff’s
pleading which, if established, defeats or postpones the plaintiff’s claim.
[49] Thus, as a general rule, where the alleged defect appears ex facie the
particulars of claim, the appropriate procedure is an exception. Were facts
extraneous to the particulars are required to establish the defence, a
13 Jugwanth v Mobile Telephone Networks (Pty) Ltd (529/2020) [2021] ZASCA 114; [2021] 4 All
SA 346 (SCA)
13
special plea is ordinarily appropriate. Jugwanth14 recognises that there
may be exceptions to this general distinction, prescription being the
obvious example.
[50] The distinction is material in the present case. The third, fourth and fifth
special pleas do not, in substance, introduce independent facts which, if
proved, would defeat or postpone otherwise sustainable causes of action.
They contend instead that the pl aintiff’s particulars themselves lack
allegations necessary to sustain the causes of action relied upon.
[51] Those objections are, in substance, objections to the legal sufficiency of
the particulars of claim of the kind ordinarily raised by exception under
Rule 23.
[52] The Court should nevertheless have regard to substance rather than
merely the label attached to the objection.
[53] I accordingly consider each special plea as formulated and the relief
sought pursuant to it.
THIRD SPECIAL PLEA: ALLEGED FAILURE TO PLEAD A DELICTUAL CAUSE OF
ACTION
[54] The third special plea alleges that the plaintiff has failed to plead facts
sustaining a delictual cause of action in respect of treatment at Pholosong
Hospital, Tambo Memorial Hospital and St John's Hospital.
[55] The defendant alleges, broadly, that the particulars fail adequately to
plead the elements of a delictual cause of action in respect of th e
aforesaid hospitals.
14 Jugwanth v Mobile Telephone Networks (Pty) Ltd supra
14
[56] The contention rests upon too narrow a reading of the particulars.
[57] Pleadings must be read as a whole. Rule 18(4) requires a clear and
concise statement of the material facts upon which the pleader relies, with
sufficient particularity to enable the opposite party to reply. It does not
require the evidence by which each al legation will ultimately be
established to be pleaded.
[58] The distinction is between the facta probanda, which must be pleaded,
and the facta probantia , by which those material facts are ultimately
proved.15 The same distinction is reflected in Mbhiyozo v Eskom Holdings
(SOC) Ltd.16
[59] The particulars identify the treatment received, the alleged acts and
omissions of the defendant's medical personnel, the respects in which the
treatment is said to have been negligent, the alleged causal
consequences and the damages claimed.
[60] The allegations concerning the individual hospitals cannot properly be
isolated from the general allegations of negligence and wrongfulness
contained elsewhere in the particulars.
[61] In Goliath v MEC for Health, Eastern Cape , 17 the Supreme Court of
Appeal reaffirmed the professional standard applicable in medical -
negligence cases. Whether the treatment in the present case fell below
that standard is a matter for evidence at trial.
[62] The plaintiff is not required at pleading stage to establish by expert
15 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W)
16 Mbhiyozo v Eskom Holdings (SOC) Ltd (Case No. 3133/2023) 2024 ZAECMHC 53 (25 June
2024)
17 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA)
15
evidence the medical proposition upon which each alleged act or omission
depends.
[63] Whether the pleaded allegations can ultimately be proved is a different
question from whether a cause of action has been pleaded.
[64] The third special plea must accordingly be dismissed.
FOURTH SPECIAL PLEA: ALLEGED FAILURE TO PLEAD A CONTRACTUAL
CAUSE OF ACTION
[65] The fourth special plea requires separate consideration.
[66] The plaintiff alleges in paragraph 8 of his particulars, inter alia, that the
defendant acted "in breach of the parties' agreement" . The defendant
complains that the plaintiff failed to plead whether the agreement was
written or oral, when and where it was concluded and by whom. It further
alleges that the particulars fail to sustain a contractual cause of action.
[67] Rule 18(6) prescribes the allegations which must be made by a party who
relies upon a contract.
[68] The defendant's complaint is accordingly directed to the sufficiency of the
plaintiff's particulars as they stand. It does not introduce an extraneous
fact which, if established, destroys or postpones the operation of an
otherwise existing cause of action.
[69] In substance, the objection is of the kind ordinarily raised by exception.
[70] The defendant did not except. It pleaded over and now seeks, by way of
special plea, to defeat the plaintiff's claim.
[71] I do not consider it appropriate in those circumstances to convert the
special plea into an exception and to grant relief which was not sought
through that procedure.
16
[72] This conclusion should not be misunderstood. I make no finding that the
plaintiff has adequately pleaded a contractual cause of action or that the
contractual allegations comply with Rule 18(6).
[73] Hospital records or other evidence, without appropriate pleaded
allegations, could also not substitute for material averments necessary to
sustain a contractual cause of action. Pleading and proof perform different
functions.
[74] The decisive point for purposes of the special plea as formulated is that
the alleged deficiency in the contractual allegations does not constitute a
special defence, which defeats or postpones the plaintiff's independently
pleaded delictual medical-negligence claim.
[75] The defendant itself distinguishes the two bases in its plea over. It admits
that the plaintiff accepted the medication as part of his treatment but
denies that this occurred pursuant to an agreement.
[76] The delictual claim therefore does not depend for its existence upon the
alleged contract.
[77] The fourth special plea, as formulated, must accordingly be dismissed.
FIFTH SPECIAL PLEA: RELIANCE UPON CONTRACT AND DELICT
[78] The fifth special plea concerns the presence of contractual and delictual
allegations in the particulars and contends that the plaintiff's claim is fatally
defective.
[79] The mere fact that contractual and delictual allegations arise from the
same factual matrix does not render an otherwise identifiable delictual
cause of action unsustainable.
17
[80] Loureiro18 illustrates that contractual and delictual liability are not, as a
matter of principle, mutually exclusive. The Constitutional Court ultimately
imposed contractual liability in favour of one applicant and delictual liability
in favour of the remaining applicants arising from the same incident.
[81] That does not mean that the existence of a contract automatically
generates a parallel delictual claim. The requirements of each cause of
action must independently be satisfied.
[82] Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 19
and Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey
& Templer (Pty) Ltd 20 caution against imposing Aquilian liability where the
obligation relied upon is essentially contractual, particularly in cases
involving pure economic loss.
[83] The present claim is materially different. It concerns bodily injury allegedly
caused by negligent medical treatment. The plaintiff's delictual claim does
not depend upon the existence or enforceability of the alleged agreement.
[84] The pleaded facts are that medical personnel employed by the defendant
undertook the plaintiff's treatment and, in rendering that treatment, acted
wrongfully and negligently in specified respects, thereby causing bodily
injury.
[85] The defendant's own plea over demonstrates that it understands and
distinguishes the two alleged bases of liability: it denies the alleged
agreement while separately pleading to the medical treatment and
18 Loureiro and Others v iMvula Quality Protection (Pty) Ltd supra
19 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A)
20 Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006
(3) SA 138 (SCA)
18
allegations of negligence.
[86] The failure, if any, adequately to plead the purported contractual cause of
action does not render the independently identifiable delictual claim fatally
defective.
[87] Nor does a failure expressly to label the bases of liability as "concurrent"
or "alternative", without more, constitute a special defence capable of
defeating or postponing the delictual action.
[88] The fifth special plea must accordingly be dismissed.
SIXTH SPECIAL PLEA: ALLEGED FAILURE TO PLEAD A LEGAL DUTY
[89] The sixth special plea alleges that the plaintiff's claim is fatally defective
because, in respect of various pleaded omissions, he failed to allege a
legal duty owed by the defendant and a breach thereof.
[90] The terminology requires care.
[91] South African delictual law requires the enquiries into wrongfulness and
negligence to be kept conceptually distinct. In Loureiro 21 the
Constitutional Court expressly cautioned against conflating the two.
Wrongfulness concerns whether the law regards the conduct as
actionable and whether liability should be imposed; negligence concerns
fault and the comparison of the conduct with the standard legally required
in the circumstances.
[92] The aforesaid distinction is particular significance where liability is
founded upon an omission. Whether the law imposes liability for a failure
to act forms part of the wrongfulness enquiry. Whether medical personnel
failed to exercise the degree of professional skill and care reas onably
21 Loureiro and Others v iMvula Quality Protection (Pty) Ltd supra
19
required of them ordinarily concerns negligence.
[93] The expression "duty of care", derived from English law, should therefore
not be employed in a manner which obscures the aforesaid distinct
enquiries.
[94] In Van Wyk v Lewis , 22 the professional standard was articulated by
reference to the skill and diligence reasonably expected of a medical
practitioner. That standard continues to inform the enquiry whether
medical treatment was negligently rendered.
[95] In Goliath, 23 the Supreme Court of Appeal likewise confirmed the
professional standard applicable to medical negligence.
[96] More recently, in Louw v Patel,24 the Supreme Court of Appeal considered
a medical-negligence claim arising, inter alia, from a failure timeously to
transfer a patient to definitive care and a failure adequately to
communicate with the receiving doctor. The majority upheld the finding of
liability, including the finding that the negligent delay was causally
connected to th e harm suffered. The case concerned precisely the
significance of alleged omissions in the course of medical treatment and
their causal consequences.
[97] Louw 25 illustrates that a medical -negligence claim does not become
legally deficient merely because some of the conduct complained of
consists of omissions. The question at pleading stage remains whether
the material facts alleged are capable, if established, of satisfying the
22 Van Wyk v Lewis 1924 AD 438
23 Goliath v MEC for Health, Eastern Cape supra
24 Louw v Patel (245/2021) [2023] ZASCA 22
25 Louw v Patel supra
20
requirements of the delict.
[98] The plaintiff alleges that the defendant's medical personnel undertook his
treatment and thereafter failed, amongst other things, properly to examine
and monitor him; determine whether the medication was safe and
appropriate; respond adequately to its adve rse consequences; withdraw
it timeously; and obtain appropriate specialist intervention.
[99] The aforesaid allegations provide the factual foundation upon which the
plaintiff relies for wrongfulness and negligence.
[100] This is not a case in which the Court is asked to convert a purely
contractual obligation into an Aquilian legal duty of the kind cautioned
against in Lillicrap. 26 The alleged harm is bodily injury said to have
resulted from negligent medical treatment.
[101] Whether the alleged omissions were wrongful, whether the medical
personnel failed to meet the professional standard reasonably required of
them, and whether any such failure caused the plaintiff's harm are
ultimately matters to be determined upon the evidence.
[102] The sixth special plea must accordingly be dismissed.
EXPERT JOINT MINUTES
[103] A further issue arose concerning the significance of expert joint minutes.
[104] There is an important distinction between an agreement or opinion
recorded by expert witnesses and an admission deliberately made by a
litigant during the Rule 37 process.
[105] Experts do not determine the issues which a court is required to decide.
26 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd supra
21
Their function is to assist the court on matters falling within their expertise.
Experts, by agreement between themselves, cannot amend the pleadings
or create a cause of action which has not been pleaded.
[106] Expert joint minutes nevertheless perform an important case -
management function. In Bee v Road Accident Fund ,27 the Supreme
Court of Appeal emphasised their role in narrowing the issues upon which
expert evidence remains necessary. Effective case management would
be undermined if a party could proceed on the basis that an expert issue
had been resolved and later find it unexpectedly revived.
[107] The significance of such agreements is also apparent from DSS v MEC
for Health, Gauteng,28 where the Court referred to Thomas v BD Sarens
(Pty) Ltd 29 and Bee 30 and recognised the importance of expert joint
minutes in limiting issues and facilitating effective case management.
[108] That principle must nevertheless be distinguished from the ultimate
judicial evaluation of expert opinion. In NSS obo AS v MEC for Health,
Eastern Cape Province,31 the Supreme Court of Appeal made clear that
the ultimate decision on expert opinion remains for the court. A court does
not become bound to adopt an expert opinion merely because the opinion
has been admitted or agreed. The same qualification was recognised in
DSS.32
[109] A further distinction is important in the present matter. An agreement
27 Bee v Road Accident Fund 2018 (4) SA 366 (SCA)
28 DSS v MEC for Health, Gauteng (2447/2018) 2024 ZAGPPHC 119 (15 November 2024)
29 Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161 (GJ), paras 9-14
30 Bee supra
31 NSS obo AS v MEC for Health, Eastern Cape Province 2023 (6) SA 408 (SCA)
32 DSS supra
22
between experts cannot amend the parties' pleadings or create a cause
of action which has not been pleaded. That is different from an express
admission made by a litigant itself during the Rule 37 process concerning
an issue falling within the pleadings.
[110] I accordingly accept the defendant's proposition, at the level of principle,
that an expert agreement concerning a matter which genuinely falls
outside the plaintiff's pleaded case does not itself amend that case.
[111] That proposition, however, does not resolve the present special pleas.
[112] My conclusions do not depend upon treating expert reports or joint
minutes as amendments to the particulars of claim. They rest upon the
particulars themselves, read as a whole, and, where relevant, upon the
defendant's own formal admissions during the Rule 37 process.
[113] The distinction is material. An expert's agreement performs an evidential
and case-management function. A litigant's deliberate admission that a
fact is common cause performs a distinct procedural function by removing
that fact from the field of controvers y and assisting in defining the issues
remaining for adjudication.
[114] The defendant remains entitled at trial to contend that particular expert
evidence travels beyond the pleadings and to raise such objections to its
admissibility, relevance or weight as may properly be available.
[115] What it may not do, without properly withdrawing its own Rule 37
admission, is rely upon the principles governing expert evidence to restore
as disputed a fact which it formally admitted during the pre-trial process.
CONCLUSION
[116] The six special pleas arise against a significant procedural history. The
defendant pleaded to the action in 2019. The matter thereafter proceeded
through expert and pre -trial processes during which the issues were
23
narrowed.
[117] The significance of the procedural history should not be overstated, but
neither can it be ignored. The defendant pleaded to the action,
participated in its subsequent conduct and made express admissions
during the pre-trial process. It was only at a consi derably later stage that
it introduced special pleas, in material respects, seeking either to revisit
matters previously made common cause or to challenge alleged
deficiencies which were apparent from the plaintiff’s pleadings at an
earlier stage.
[118] Of particular importance, the defendant expressly admitted that the
doctors and nurses involved were acting in the course and scope of their
duties, while expressly declining to admit negligence. As Nel v Cilliers 33
makes clear, the pre -trial process serves to identify and crystallise the
issues to be determined, and the trial proceeds upon the dispute
remaining after admissions and concessions have been made admission.
[119] The later delivery of an amended plea cannot, without more, undo th e
aforesaid admission.
[120] The remaining special pleas directed at the legal sufficiency of the
particulars likewise do not establish special defences which defeat or
postpone the plaintiff's independently pleaded delictual medical -
negligence claim.
[121] This conclusion does not mean that every aspect of the plaintiff's pleading
is necessarily beyond criticism. In particular, I have made no finding that
the purported contractual cause of action complies with Rule 18(6). That
question is not determined by the dismissal of the fourth special plea.
33 Nel v Cilliers supra
24
[122] Treatment of expert joint minutes also does not permit expert witnesses
to enlarge the plaintiff's pleaded case. The plaintiff remains bound by the
cause of action pleaded and the defendant remains entitled to object at
trial to evidence which genuinely falls beyond it.
[123] Equally, the defendant remains bound by an express pre -trial admission
which has neither been withdrawn nor shown to be subject to special
circumstances justifying departure from it.
[124] Nothing in this judgment determines whether the defendant's medical
personnel were negligent or whether any such negligence caused the
harm alleged by the plaintiff. Th e aforesaid issues remain for
determination at trial. The present judgment determines only the special
pleas and gives effect, where relevant, to matters which the parties had
already removed from dispute through the pre-trial process.
[125] The action should accordingly proceed upon the issues which remain
genuinely in dispute.
COSTS
[126] The plaintiff has successfully resisted all six special pleas and is ordinarily
entitled to the costs occasioned thereby.
[127] I take into account that the special pleas were introduced at an advanced
stage of the litigation and that the second special plea sought to place in
issue a matter which the defendant had expressly admitted during the pre-
trial process.
[128] I also take into account that some of the issues raised, particularly the
distinction between the pleaded case, expert joint minutes and formal pre-
trial admissions, required determination.
[129] I am therefore not persuaded that a punitive costs order is warranted.
Costs on Scale B are appropriate.
26
to the electronic file of this matter on CaseLines. The date for hand-
down is deemed to be on 28 August 2026.
______________________________________
HEARD ON: 21 and 22 April 2026
DATE OF JUDGMENT: 28 August 2026
FOR PLAINTIFF: Advocate D F Makhubele
INSTRUCTED BY:
Monwa & Associates Inc.
Mr Melford Monwa
Email: melford@monwa.co.za
FOR DEFENDANT: Advocate T Mbana
INSTRUCTED BY: Nkosi Sabelo Incorporated
Email: george@nsattorneys.co.za