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Reportable:                                            YES / NO

Circulate to Judges:                              YES / NO

Circulate to Magistrates:                    YES / NO

Circulate to Regional Magistrates:   YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

                                                                           CASE NO: 475/2016

In the matter between:

THE MEC FOR HEALTH-NORTH WEST                                       1^STPlaintiff

PROVINCE

THE PREMIER OF THE NORHT WEST                                       2^ND Plaintiff

PROVINCE

And

JOSEPHS INCORPORATED                                                    1^ST Defendant

GWAMBE THAPELO ALPHONSINA                                       2^ND Defendant

GWAMBE MOHLAOLE JOHANNES                                       3^RD Defendant

THE MASTER OF THE HIGH COURT                                     4^TH Defendant

NORTH WEST PROVINCIAL DIVISION                           

THE EXECUTOR:  ESTATE LATE MASEGO                           5^TH Defendant

REITUMETSE PRECIOUS TSHABALALA                     

JUDGMENT

DJAJE J

Introduction

[1] The Plaintiffs issued summons against the Defendants for payment of the sum of R5 495 778.24 and R780 000.00 being monies that were paid to the first Defendant as a result of a successful medical negligence action by the second and third Defendants on behalf of their minor child. The medical negligence was committed by the Plaintiffs’ members of provincial hospital staff during the birth of the minor child. As a result of the negligence the minor child was born with serious physical deformities. During the trial the second and third Defendants were represented by the first Defendant. The court awarded damages to the second and third Defendants in the amounts stated above.  The payment of the said amounts was made into the bank account of the first Defendant.

[2] The minor child is now deceased and the Plaintiffs’ case is that since the minor child has passed away and for whose sole benefit the monies in respect of future medical expenses and future loss of earnings were paid, the said monies or the residue thereof should be returned to the coffers of the Plaintiffs being organs of the state.

The Exception

[3] The Defendants have filed a notice of exception to Plaintiffs’ particulars of claim on the basis that they do not disclose a cause of action alternatively that they are vague and embarrassing.

Legal Principles of Exception

[4] It was stated as follows in the matter of Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627 at 630 that:

“Now the form of pleading known as an exception is a valuable part of our system of procedure if legitimately employed: its principal use is to raise and obtain a speedy and economical decision of questions of law which are apparent on the face of the pleadings: it also serves as a means of taking objection to pleadings which are not sufficiently detailed or otherwise lack lucidity and are thus embarrassing.”

[5] The onus rests on the excipient to show that the particulars of claim disclose no cause of action. See: Amalgamated Footwear & Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C).

[6] When dealing with exception, if there is evidence that can be led which can disclose a cause of action then that pleading is not excipiable. See:  Mc Kelvey v Cowan NO 1980 (4) SA 525 (Z) at 526 D-E.

[7] The Defendants raised six grounds of exceptions which I will deal with hereunder:-

First Ground

[8] On this ground the Defendants case is that the Plaintiffs have failed to plead any basis in law for an order in respect of payment of the monies claimed; a full account of the awards in respect of future hospital, medical and related expenses and loss of earning capacity and the dabatement of account in respect thereof. The Defendants’ argument was that the award made in respect of the above stated claims was made unconditionally and pursuant to a court order.

[9] The Plaintiffs’ claim is based on a court order and cannot be arising from a contract or delict where they would have to plead conduct giving rise to liability. As such the Plaintiffs particulars of claim do not disclose a basis in law for their claim against the Defendants. This ground does render the particulars of claim excpiable.

Second Ground

[10] In the particulars of claim the Plaintiffs at paragraph 16 pleads that:

“It is perhaps worth noting that, in terms of the Gura J judgment, any future payments arising from the award of damages would have to be kept in a trust which was to be set up by the first defendant for Masego’s sole benefit as per the Court order. Accordingly, all the subsequent payments made by the plaintiffs to the first defendant ought to have been kept in the trust as directed by the Court.”

Further to this in paragraph 30 of the particulars of claim then the Plaintiffs plead that

“It was an express, alternatively implied, alternatively tacit term of the Court order that the second and third defendant would utilise the money paid to them, through and by the first defendant, solely for Masego’s future medical treatment and for the second and third defendant to retain only that portion of the damages and future loss of earnings and earning capacity.”

[11] The Court order of 5 October 2010 from which this claim arises at paragraph 2.1 states:

“2.1    The attorney for the plaintiff is:

2.1.1   to cause a Trust (“the Trust”) to be established in accordance with the Trust Property Control Act No. 57 of 1988 (“the Trust Property Control Act”);

2.1.2   to pay all monies held in trust by them for the benefit of the patient, to the Trust;

2.2       The Trust instrument shall make provision for the following:

2.2.1   The patient to be the sole beneficiary of the Trust;

2.2.2   The trustee(s) to provide security to the satisfaction of the Master;

2.2.3   The ownership of the trust property to vest in the trustee(s) of the Trust in their capacity as trustees;

2.2.4   Procedures to resolve any potential disputes, subject to review of any decision made in accordance therewith by this Honourable Court;

2.2.5   The suspension of the patient’s contingent rights in the event of cession, attachment or insolvency, prior to the distribution of payment thereof by the trustees(s) to the patient;

2.2.5   The amendment of the trust instrument to be subject to the leave of this Honourable Court;

2.2.5   The determination of the Trust upon the death of the patient, in which event the Trust assets shall pass to the estate of the patient;

2.2.5   The trust property and administration thereof to be subject to an annual audit.”

The terms of the Court order are clearly expressed and there is nothing in the said order indicating that the terms thereof are implied or tacit as pleaded by the Plaintiffs in the particulars of claim. The Court order states that upon the death of the patient, in this case the minor child the trust assets shall pass to the estate of the patient. There is therefore no basis in law why the Plaintiffs are claiming the repayment of the money or debatement of the account in respect thereof.

Third Ground

[12] The Plaintiffs have prayed for:

“To the extent necessary, variation of the Court order of Gura J insofar as payment for future medical expenses and loss of earnings and earning capacity is concerned”. 

In paragraph 29 of the particulars of claim the following is pleaded:

“Material facts as outlined above which affect the judgment and the orders made have come to light entitling this Court to vary its orders. It is currently unknown as to how the funds in possession of Josephs Incorporated have been disbursed and what the residue is if any. Josephs Incorporated is in full control of the money paid to it by the plaintiffs.”

It is the Defendants’ case that the Plaintiffs have not established any basis for a variation of a court order. Further that by pleading that the material facts (death of the minor child) that came into light affect the judgment and orders of this Court cannot be a ground for variation of a court order.

[13] Rule 42 of the Uniform Rules of Court provides as follows:

“42 Variation and Rescission of Orders

(1)       The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

(a)       An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b)       an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c)        an order or judgment granted as the result of a mistake common to the parties.

(2)       Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.

(3)       The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.”

[14] In the matter of Butters v Mncora (419/13) [2014] ZASCA 86 (30 May 2014) at paragraph 14 and 15 the following was stated in relation to variation of court orders:

“[14]    The general rule, now well established in our law, is that once a court has duly pronounced a final judgment it has no authority to correct, alter or supplement it. The reason is that its jurisdiction in the case having been finally exercised has ceased. (See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-H; West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 at 176, 178, 186 – 7 and 192.)

[15]      However there are exceptions to this rule. The principle that a court may clarify its judgment or order if, on a proper interpretation, the meaning remains uncertain and it seeks to give effect to its true intention is trite. The sense and substance of the order ought not to be altered. (See Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) para 5.)”

[15] In this matter the Plaintiffs in praying for repayment of the money and debatement of account seek to have the substance and sense of the order altered. As stated above the order of 5 October clearly states that in the event of the death of the patient the trust assets will form part of the estate of the patient. There is nothing that needs to be clarified from the said order and as a result the Plaintiffs have not established any ground in law for the Court to vary its own order.

Fourth Ground

[16] It is the Defendants’ argument that the Plaintiffs plead contradictory terms in paragraphs 29, 30 and 31 of the particulars of claim in that the said paragraphs state as follows:

“29.     Material facts as outlined above which affect the judgment and the orders made have come to light entitling this Court to vary its orders. It is currently unknown as to how the funds in possession of Josephs incorporated have been disbursed and what the residue is if any. Josephs incorporated is in full control of the money paid to it by the plaintiff.

30.       It was an express, alternatively implied, alternatively tacit term of the Court order that the second and third defendant would utilise the money paid to them, through and by the first defendant, solely for Masego’s future medical treatment and for the second and third defendant to retain only that portion of the damages which relate to the general damages and future loss of earnings and earning capacity.

31.       The first defendant, alternatively second and third defendant would be unjustifiably enriched if they are permitted to retain the money by virtue of the fact that the underlying cause for the payment of the money has since disappeared.”

[17] As stated above under the second ground of exception, there are no terms in the order of 5 October 2010 that are implied or tacit. As a result the Plaintiffs have not establish any basis for their claim.

Fifth Ground

[18] In paragraph 31 of the particulars of claim the Plaintiffs plead that the first Defendant, alternatively second and third Defendants would be unjustifiably enriched if they are permitted to retain the money by virtue of the fact that the underlying cause for payment of the money has since disappeared. The argument by the Defendants was that the Plaintiffs have not been able to plead any of the requirements for unjustified enrichment.

[19] Generally it is accepted that for enrichment liability to arise there are a minimum of four requirements namely: The defendant must be enriched; the plaintiff must be impoverished; the defendant’s enrichment must be at the expense of the plaintiff and the enrichment of the defendant must be unjustified or sine causa. See: 9 Lawsa 2ed para 209. The Plaintiffs in the particulars of claim have not pleaded any of the four requirements stated above or rather plead how the Defendants who received the money as a result of a Court order would be unjustifiably enriched if they are permitted to retain the money. This goes back to the terms of the order dated 5 October 2010 that the assets of the trust will form part of the estate of the patient.

Sixth Ground

[20] The Defendants submission in this regard was that the Plaintiffs in paragraph 30 of the particulars of claim plead that the second and third Defendants were entitled to retain ‘only that portion of the damages which relate to general damages and future loss of earnings and earning capacity’. However in their prayers the Plaintiffs are claiming for payment of the sum of money paid for future loss of earnings and /or earning capacity. This is contradictory and the Plaintiffs have not established a cause of action on that basis.

Constitutional Issue- development of the law

[21] During argument counsel for the Plaintiffs argued that the issues raised in this matter fall within section 8(3) of the Constitution of the Republic of South Africa , Act 108 of 1996 (“the Constitution”). Section 8(3) of the Constitution provides that:

“When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court- 

(a)  in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b)  may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)”.

[22] In essence the Plaintiffs argument was that the once and for all rule in the context of damages does not constitute good law and should be declared unconstitutional. Further that the damages paid for future loss when the amount no longer serve the purpose for which the Court meant them to be used for does not constitute good law. It was argued on behalf of the Plaintiffs that in that instance the common law should be developed to ensure protection of state money.

[23] In contention the Defendants’ counsel argued that the Plaintiffs cannot during argument raise a constitutional issue when it was not pleaded in the particulars of claim or a notice furnished that a constitutional issue would be raised in this matter. Counsel for the Defendant referred me to the cases of Everfresh Market Virginia v Shoprite Checkers 2012 (1) SA 256 (CC) at paragraph 63, that a party raising development of the common law in terms of the Constitution should plead that so as not to prejudice the other party.

[24] Rule 16(A) (1) (a) and (b) of the Uniform Rules of Court provides that:

“(1) (a)      any person raising a constitutional issue in an application or action shall give notice thereof to the registrar at the time of filing the relevant affidavit or pleading.

(b)        Such notice shall contain a clear and succinct description of the constitutional issue concerned.”

[25] In this matter Counsel for the Plaintiffs argued this issue in court when no notice was given or the issue having being pleaded in the particulars of claim. The Defendants were confronted with this argument at a late stage in court without having had the opportunity to meet it head on. All that the Defendants could argue on this issue was that it was not pleaded. It would be unfair for the Defendants to be expected to advance argument on the issue of the development of the law when it has not been pleaded and no notice of such an issue being raised given as required in terms of Rule 16(A) of the Uniform Rules.

[26] I have carefully considered the contents of the particulars of claim filed by the Plaintiffs, that the Defendants have excepted to and the applicable legal principles. I am persuaded that the Defendants’ grounds of exception relating to the cause of action not disclosed and the particulars of claim being vague and embarrassing, are well founded. In my view the Defendants have shown that they cannot plead or that they will be prejudiced if they were to plead to the particulars of claim as they stand.

Costs

[27] The awarding of costs is in the discretion of the court. The Defendants in this matter have succeeded. In my view there is no reason why a cost order should not be made in favour of the Defendants.

Order

[28] Consequently, I make the following order:

1.     The exception by the Defendants is upheld.

2.     The particulars of claim are set aside and the Plaintiffs are   granted leave to amend them within fifteen (15) days of this order.

3.     The Plaintiffs are ordered to pay costs of the application.

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J T DJAJE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING                              :          21 SEPTMEBER 2017

DATE OF JUDGMENT                          :          26 OCTOBER 2017

 

COUNSEL FOR THE PLAINTIFFS      :        ADV MOKHARI SC With ADV ZONDO

COUNSEL FOR THE DEFENDANTS  :        ADV K PILLAY

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