---

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: 4743/2018

In the matter between:

JOHANNES LODEWIKUS PRETORIUS                                                            PLAINTIFF

and

ROAD ACCIDENT FUND                                                                                DEFENDANT

JUDGMENT BY: I VAN RHYN AJ

HEARD ON: 15 MARCH 2019

DELIVERED: 18 APRIL 2019

 

INTRODUCTION.

[1] This matter concerns an opposed exception in terms of the provisions of Rule 23 of the Uniform Rules of Court noted by the plaintiff against the defendant’s plea.

[2] During July 2017 the plaintiff was involved in a motor vehicle accident in Bloemfontein. The plaintiff suffered injuries to his legs when the motorcycle that he was driving collided with the motor vehicle driven by the insured driver. The motorcycle caught fire and caused burns to the plaintiff’s legs. In September 2018 the plaintiff instituted action against the defendant (‘the Fund’) for damages in terms of the provisions of the Road Accident Fund Act, Act 56 of 1996 (‘the Act’) as a result of bodily injuries he sustained in the amount of R 1 204 695.63, more particularly for past and future medical and hospital expenses as well as general damages.

[3] The defendant’s plea is dated 23 November 2018. The plaintiff served a Notice in terms of the provisions of Rule 23(1) on the defendant’s attorney on 26 November 2018 affording the defendant the opportunity of removing the cause of complaint. The defendant failed to respond to the notice where after the plaintiff filed his exception on 17January 2019.

GROUNDS OF THE EXCEPTION.

[4] The plaintiff’s exception is directed at paragraph 7.2 of the defendant’s plea on the basis that the contents of the aforesaid paragraph renders the plea vague and embarrassing. In paragraph 7 of the plaintiff’s particulars of claim it is pleaded that a serious injury assessment report (RAF 4) as well as  the medico-legal report completed by Prof J F Jooste, a plastic surgeon, which sets out in detail the nature and degree of plaintiff’s injuries, are affixed to the particulars of claim as annexures “A” and “B”.

[5] The defendant’s plea to paragraph 7 of the particulars of claim reads as follows:

“7.1 The Defendant denies the nature and degree of Plaintiff’s injuries and accordingly the Plaintiff is put to the proof thereof.

7.2 Defendant will proceed in terms of Regulation 3(3)(d)(i) of 2008 read together with Regulation 3(3)(dA) of 2013, of the Road Accident Fund Amendment Regulations.”

[6] The basis of the plaintiff’s exception is formulated as follows: “ On a proper construction of Regulation 3(3)(d)(i) read together with Regulation 3(3)(dA) it is unclear whether the Defendant is rejecting the serious injury assessment report, in which event the Defendant has not fully complied with Regulation 3(3)(d)(i) as no reasons for the rejection have been provided, and/or whether the Defendant is directing that the Plaintiff submit himself to a further assessment”

THE PRINCIPLES RELEVANT TO THE DETERMINATION OF AN EXCEPTION.

[7] In analysing the purpose of pleadings Kumleben JA et Nienaber JA held in Imprefed (Pty) Ltd v National Transport Commission[1] as follows: “At the outset it need hardly be stressed that: 'The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to an action the issues upon which reliance is to be placed.' (Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.) This fundamental principle is similarly stressed in Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice 22nd ed at 113: 'The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.' The degree of precision obviously depends on the circumstances of each case.”[2]

[8] To achieve this goal it has been stated that pleadings must be lucid, logical and intelligible[3]. A litigant must plead his cause of action or defence with at least such clarity and precision as is reasonably necessary to alert his opponent to the case he has to meet. A litigant who fails to do so may not thereafter advance a contention of law or fact if its determination may depend on evidence which his opponent has failed to place before the court because he was not sufficiently alerted to its relevance.

[9] In this matter the complaint is directed at the plea of the defendant. It is, however, trite that defective pleadings of a plaintiff and that of a defendant are treated on an equal footing.[4] The clarity and precision required of a pleading are explained in Jowell v Bramwell-Jones and Others[5]: “…(T)he plaintiff is required to furnish an outline of its case. That does not mean that the defendant is entitled to a framework like a cross-word puzzle in which every gap can be filled by logical deduction. The outline may be asymmetrical and possess rough edges not obvious until actually explored by evidence. Provided the defendant is given a clear idea of the material facts which are necessary to make the cause of action intelligible, the plaintiff will have satisfied the requirements.” [6]

[10] An exception that a pleading is vague and embarrassing strikes at the heart of the claim or, as in this case the defence and at the formulation of the cause of action and its legal validity. It is not directed at a particular paragraph within a cause of action but at the cause of action as a whole, which must be demonstrated to be vague and embarrassing. As was stated in Jowell v Bramwell-Jones at 905E-H: “I must first ask whether the exception goes to the heart of the claim and, if so, whether it is vague and embarrassing to the extent that the defendant does not know the claim he has to meet…”

[11] The approach to be adopted and applicable considerations were described as follows in Trope v South African Reserve Bank[7] at 221A-E : “An exception to a pleading on the ground that it is vague and embarrassing involves a two-fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability of the excipient to produce an exception-proof plea is not the only, nor indeed the most important, test - see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other's case and not be taken by surprise may well be defeated.

Thus it may be possible to plead to particulars of claim which can be read in any one of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is excipiable as being vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider 1952 (1) SA 150 (SWA) at 152F-G and the authorities there cited.

It follows that averments in the pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) conveyed by the pleading.”

[12] Some particularity is therefore required in pleadings and it follows that where averments in pleadings are vague and embarrassing, alternatively lacks averments necessary to sustain a defence, a party is entitled to deliver an exception to the pleading. In Trope v South African Reserve Bank the court noted the following in respect of  the degree of particularity required in pleadings: “Rule 18(4) of the Uniform Rules of Court provides that 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, with sufficient particularity to enable the opposite party to reply thereto. It is, of course, a basic principle that particulars of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto. This must be seen against the background of the further requirement that the object of pleadings is to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. Pleadings must therefore be lucid and logical and in an intelligible form; the cause of action or defence must appear clearly from the factual allegations made (Harms Civil Procedure in the Supreme Court at 263-4). At 264 the learned author suggests that, as a general proposition, it may be assumed that, since the abolition of further particulars, and the fact that non-compliance with the provisions of Rule 18 now (in terms of Rule 18(12)) amounts to an irregular step, a greater degree of particularity of pleadings is required. No doubt, the absence of the opportunity to clarify an ambiguity or cure an apparent inconsistency, by way of further particulars, may encourage greater particularity in the initial pleading. The ultimate test, however, must in my view still be whether the pleading complies with the general rule enunciated in Rule 18(4) and the principles laid down in our existing case law.” [8]

 

THE SERIOUS INJURY ASSESSMENT BY THE DEFENDANT.

[13] In terms of the Amendment Act in 2005, a limitation on the Fund’s liability for general damages was introduced as a proviso in s 17(1) that ‘the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for serious injury as contemplated in subsection (1A) . . .’ The assessment of whether or not a particular injury meets the threshold requirement of ‘serious’ must be carried out by someone registered as a medical practitioner under the Health Professions Act 56 of 1974 and on the basis of a ‘prescribed method’. The Minister of Transport promulgated the Road Accident Fund Regulations of 2008 through publication in the Government Gazette of 21 July 2009. Regulation 3 prescribes the method contemplated in s 17(1A) for the determination of 'serious injury' and provides  that a third party who wishes to claim general damages shall submit himself or herself to an assessment by a medical practitioner to obtain a serious injury assessment report.

[14] In terms of Regulation 3(3)(c) the Fund is only liable for general damages if a claim is supported by a serious injury assessment report and the Fund is satisfied that the injury has been correctly assessed as serious in terms of the method provided for in these Regulations. If the Fund is not so satisfied, Section 3(3) (d) of the Regulations provides that:

"(d) If the Fund or an agent is not satisfied that the injury has been correctly assessed, the fund or an agent must;

(i) reject the serious injury assessment report and furnish the third party with reasons for the rejection, or

(ii) direct that the party submit himself or herself, at the cost of the Fund or an agent, to a further assessment to ascertain whether the injury is serious, in terms of the method set out in these Regulations, by a medical practitioner designated by the Fund or an agent.

(d A) The Fund or an agent must, within 90 days from the date on which the serious injury assessment report was sent by registered post or delivered by hand to the Fund or to the agent who is in terms of section 8 must handle the claim, accept or reject the serious injury report or direct that the third party submit himself or herself to a further assessment.

(e) The Fund or agent must either accept the further assessment or dispute the further assessment in the manner provided in these Regulations".

[15] The legislative framework thus affords the Fund with three options available in the event it is not satisfied with the assessment of injury of the claimant being;

a) to accept the serious injury report, or,

b) reject the report, or

c) direct that the party submit to a further assessment.[9]

[16] Prior to the further promulgation of the new regulation under (dA) quoted above, the Regulations, however, did not indicate what the consequences would be if the Fund failed to comply with the peremptory 90 day period. In Road Accident Fund v Duma and Three Similar Cases[10] further possible scenarios were considered and explained as follows: “As to what then happens, regulation 3(4) provides that, if the third party disputes the Fund’s rejection of the RAF 4 form (under regulation 3(3)(d)(i)) – or if either the third party or the Fund wishes to challenge the assessment by the medical practitioner designated by the Fund (under regulation 3(3)(d)(ii)) – the aggrieved party must formally declare a dispute by lodging a prescribed dispute resolution form (RAF 5) with the registrar of the Health Professions Council within 90 days of being informed of the rejection or the impugned assessment. Regulation 3(5)(a) then goes on to say that if this is not done, the rejection of the RAF 4 form or the assessment by the Fund’s designated medical practitioner, as the case may be, shall become final and binding.

[10] If a dispute is declared, regulation 3(8) provides for it to be determined by an appeal tribunal of three independent medical practitioners with expertise in the appropriate area of medicine, appointed by the registrar of the Health Professions Council. In terms of regulation 3(13) the determination by the appeal tribunal is final and binding. A procedure by which the appeal tribunal enquires into the dispute is laid down in substantial detail by regulations 3(4) to 3(13). It includes the following features:

(a) Both sides may file submissions, medical reports and opinions.

(b) The appeal tribunal may hold a hearing for the purpose of receiving legal argument by both sides and seek the recommendation of a legal practitioner in relation to the legal issues arising at the hearing.

(c) The appeal tribunal has wide powers to gather information, including the power to direct the third party to submit to a further assessment by a medical practitioner designated by the tribunal; to do its own examination of the third party’s injury; and to direct that further medical reports be obtained and placed before it.”[11]

[17] The inaction of the Fund to reject or accept the RAF 4 form within a reasonable period was one of the issues identified by the Supreme Court of Appeal in Duma.  An amendment to the regulations was introduced by way of Regulation 3(3)(dA) of 2013, requiring the fund to assess the RAF 4 form within 90 days.

 

SUBMISSIONS BY THE PARTIES

[18] In the present matter counsel for the plaintiff contended that considering the nature of the claim being damages suffered in respect of injuries sustained in a motor vehicle accident, the nature and degree of the plaintiff’s injuries are issues of significant importance. The defendant’s denial of the nature and degree of the plaintiff’s injuries in paragraph 7.1 of its plea is therefore no per se objectionable. However the defendant goes further than a mere denial of the nature and degree of the injuries sustained when, in paragraph 7.2 it declares its intention to “proceed in terms of” both Regulation 3(3)(d)(i) of 2008 and Regulation 3(3)(dA) of 2013. The problem caused by referring to both regulations is that the assertion of an intention to proceed in terms of Regulation 3(3)(d)(i) implies that the defendant rejects the RAF 4 report and commits to providing reasons for its rejection thereof. In contrast, the assertion of an intention to proceed in terms of regulation 3(3)(dA) implies that the defendant must either:

(a)  elect to accept or reject the RAF 4 report; or

(b)  direct that the plaintiff submit himself to  further assessment.

[19] On behalf of the defendant it was argued that plaintiff failed to aver in his particulars of claim that the RAF 4 report was delivered to the defendant and that more than 90 days has passed without objection from the defendant. In answer hereto counsel for the plaintiff relied on the plaintiff’s averment that he has duly complied with the provisions of s 24, read with s 19 of the Act and in the premises the defendant is liable in terms of the provisions of s 17 of the Act to compensate the plaintiff in the amount claimed.

[20] As mentioned above, the main complaint of the plaintiff, is that it is not clear or ascertainable what the defendant intends to convey by pleading its intention to “proceed” in terms of both regulations “read together” as the regulations in question clearly present mutually exclusive courses of action. Even though both courses of action are made available to the defendant, the defendant is obliged to make an election within 90 days and to convey its decision to the plaintiff who in turn then has certain options available to challenge the decision ultimately made by the defendant.  In the event of the defendant rejecting the serious injury assessment submitted by the plaintiff, the plaintiff cannot proceed with his claim for general damages in court as the court simply has no jurisdiction to entertain the plaintiff’s claim. The Plaintiff’s remedy is to take the rejection on appeal in terms of regulation 3(4).

[21] This submission by the defendant is supported by the judgment of Mathopo JA writing on behalf of the majority in Mphala v Road Accident Fund[12]  where it was held at [12]: "If the Fund is not satisfied that the injury is serious, the plaintiff cannot continue with its claim for general damages in court. The court simply has no jurisdiction to entertain the claim. The plaintiff's remedy is to take the rejection on appeal in terms of regulation 3(4). The Fund, as an organ of state as defined in section 239 of The Constitution, performs a public function in terms of legislation. Its decision in terms of regulation 3(3)(c) and 3(3)(d), whether or not the report correctly assessed the claimant’s injury as "serious" constitutes administrative action, as contemplated in PAJA. In terms of section 6(2)(g), read with section 6(3)(b,) of PAJA if the Fund unreasonably delays in taking a decision in circumstances where there is a period prescribed for that decision, an application can be brought for judicial review of the failure to take the decision”

[22] In Mphala it was held that: “By including the prescribed period the legislature sought to ameliorate the hardship experienced by claimants prior to and after the Duma case. The intention was to bring legal certainty and to compel the Fund to act promptly and timeously, not to create a presumption in favour of claimant that the injury in question is a serious one.”[13] If the Fund should fail to take a decision within reasonable time, the plaintiffs remedy is under PAJA and any decision by the Fund is subject to an internal administrative appeal to an appeal tribunal. Neither the decision of the Fund nor decision of the appeal tribunal is subject to an appeal to the court. The court's control over these decisions is by means of review proceedings under PAJA.

THE DEFENDANTS PLEA.

[23] Counsel on behalf of the defendant stressed the principle that an exception must relate to the whole of the cause of action or claim or as in this matter, the defence and not to a particular paragraph. However an exception can be taken to a particular section of a pleading provided that the paragraph or section is self-contained and amount in itself to a separate claim or a separate defence.[14] Paragraph 7.1 and 7.2 of the defendant’s plea are self-contained and amount in themselves to a separate defence to the plaintiff’s claim but it is the ambiguity or lack of particularity and vagueness of paragraph 7.2 that forms the subject matter of the exception.[15]

[24] Aside from carefully formulating sentences and choosing the language, the structure of a pleading will be determinative whether it meets the requirements of conciseness, lucidity, logic, clarity and precision.[16]  The true nature and effect of the plaintiff’s exception is that the grounds upon which the claim is resisted was not set forth shortly and concisely but were indeed pleaded in such a way that it is meaningless as it is unclear whether the serious injury assessment report is rejected or accepted and one is therefore left guessing as to the actual meaning conveyed by the plea. It was contended on behalf of the defendant that its plea under paragraph 7.1 that “…the defendant denies the nature and degree of plaintiff’s injuries and accordingly the plaintiff is put to the proof thereof” is perfectly in order and the exception therefore never had any merit to begin with. The denial of the nature and degree of the plaintiff’s injuries strikes at the root of the defence and so the argument goes, the only logical inference that can be drawn on the pleadings as they stand, is that the serious injury assessment of the plaintiff is thus rejected.

[25] It cannot be said that it can safely be ascertained or accepted that the serious injury assessment submitted by the plaintiff is rejected by the mere denial of the nature and degree of plaintiff’s injuries. Furthermore the Fund is obliged to provide the plaintiff with reasons for the rejection or indicate whether the plaintiff should submit himself to a further assessment. Notwithstanding the Notice in terms of the provisions of Rule 23(1) allowing the Fund the opportunity of removing the cause of the complaint by indicating whether it is rejecting the serious injury assessment report and if so to furnish reasons for such rejection, alternatively to indicate whether it is reserving its right to do so after plaintiff has been directed to submit himself to a further assessment,  the defendant only after enrolment of the exception served its notice whereby the serious injury assessment report was rejected. Subsequent to the enrolment of the plaintiff’s exception on 25^th January 2019 and subsequent to plaintiff’s heads of argument being served and delivered on 22 February 2019, the defendant served its rejection in terms of Regulation 3(3)(d)(i) and (d(A) of the serious injury assessment report on 28 February 2019. A copy was handed in to court by plaintiff’s counsel during argument.

[26] The authors Herbstein & Van Winsen[17] state that: ‘for the purposes of an exception no facts may be adduced by either party and an exception may thus only be taken when the defect objected against appears ex facie the pleading itself’. Thus in deciding whether the plea is defective in the sense alleged by the plaintiff the court must have regard only to the pleadings filed and cannot consider any fresh matter introduced by way of evidence on affidavit or in any other manner.[18] Even though the notice of rejection should not influence the outcome of the adjudication of the exception, the contents of the notice of rejection of the serious injury assessment report has however removed the cause of plaintiff’s complaint against the ambiguity and vagueness of the plea. The plaintiff can ascertain what the defendant’s defence against his claim for general damages is and can decide on further steps to be taken to proceed with his claim if he so wishes.

[27] The only aspect to further adjudicate upon is the question whether the plea lacks particularity to the extent that it is vague to decide whether the exception was well founded in order to make an appropriate cost order. The contents of paragraph 7.2 is vague inasmuch as it is capable of being given more than one meaning and/or lacks sufficient particularity to enable the plaintiff to decide what the next step in the process will be as explained in the Duma case. The main purpose of pleadings is to bring clearly to the notice of the Court and the parties the issues upon which reliance are to be placed. This fundamental principle can only be achieved when each party states his case with precision.[19] The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced.[20] This prejudice lies in the excipient’s inability properly to prepare to meet the opponent’s case.

[28] The new Regulation (dA) seeks to define the rights of a claimant in unambiguous terms and affords a plaintiff an opportunity, after 90 days after submitting his or her serious injury assessment report, to apply for a mandamus in terms of PAJA to compel the Fund to make a decision. Mathopo JA held in Mphala[21]  that the amendment was specifically enacted “…to deal with the mischief identified by this court in Duma relating to the phrase ‘within a reasonable time’ which caused uncertainty to claimants.” The legislature sought to ameliorate the hardship experienced by claimants by including the prescribed 90 day period and the intention was to bring legal certainty. The inclusion of the 90 day period within which the Fund has to reject or accept the serious injury assessment report was obviously included to compel the Fund to act promptly and timeously.[22]

[29] It is important to bear in mind that the plaintiff who wishes to lodge a dispute regarding the rejection of the serious injury assessment may do so by notifying the registrar within 90 days of knowledge of the rejection. It is therefore of pronounced importance to the plaintiff to comprehend the preferred course of action of the Fund as the ultimate decision or failure to take a decision will influence the modus operandi of the plaintiff. The plea in this matter is vague as it fails to provide the degree of detail necessary properly to the plaintiff of the defence specifically in relation the seriousness of the plaintiff’s alleged injuries. If paragraph 7.2 of the defendant’s plea is intended to contain a rejection of the serious injury report submitted by the plaintiff the intent to reject same should be pleaded with clarity and it should not be for the plaintiff to analyse the particular paragraph under discussion so as to endeavour to ascertain the intention of the defendant. Paragraph 7 of the plea leaves one guessing as to its actual meaning as it does not read intelligibly[23]. It fails the test of lucidity, logic, clarity and precision. There can be no doubt that such a pleading is excipiable as being vague and embarrassing.[24]

[30] On behalf of the plaintiff it was argued that the objection to the defendant’s plea was on justified grounds. I agree. Prayer 1, apart from the prayer for costs and prayer 2 and 3 of the plaintiff’s exception have become moot due to the notice of rejection of the serious injury assessment report delivered on 28 February 2019. On the basis that the exception was justified and the plaintiff would have succeeded it follows that the plaintiff should be awarded costs of the exception.

[31] The following order is made:

1. The defendant is ordered to pay the plaintiff’s costs of the exception.

           

 

 _______________

I VAN RHYN AJ

 

On behalf of the Plaintiffs: Adv. H J van der Merwe 

Instructed by: D J Joubert

Honey Attorneys

On behalf of the Defendant: Adv. I Sander

Instructed by: J Dlamini

Maduba Attorneys

 

[1] 1993 (3) SA 94 (AD).

---