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“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 1240/15

In the matter between:-

MASIRE MONNAMME KOOS                                                                        Plaintiff

And

RUSTENBURG LOCAL MUNICIPALITY                                               First Defendant

THOMBSVEST TRADING                                                                          Second Defendant

JUDGMENT

GUTTA J.

A.           INTRODUCTION

[1] The first defendant brought an exception to plaintiff’s particulars of claim on the grounds that the particulars of claim are vague and embarrassing and or lack averments necessary to sustain a cause of action.

B.         THE LAW

[2] The object of all pleadings is that a succinct statement of grounds upon which a claim is made or resisted shall be concisely set forth, and the pleader is thus merely required to plead a summary of the material facts.

[3] It is therefore incumbent upon the plaintiff only to plead a complete cause of action which identifies the issues upon which he seeks to rely and on which evidence will be led, in an intelligible and lucid form and which allows the defendant to plead to it.

[4] An exception founded upon the contention that a summons discloses no cause of action is designed to obtain a decision on a point of law which will dispose of the case in whole or in part and avoid the leading of unnecessary evidence at that trial.

[5] The approach to be adopted and applicable considerations in instances where pleadings are vague and embarrassing was described as follows in Trope v South African Reserve Bank[1]

“An exception to a pleading on the ground that it is vague and embarrassing involves a twofold consideration. The first is whether the pleading lacks particularly to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced. As to whether there is prejudice, the ability of the excipient to produce an exception proof plea is not the only, or indeed the most important, test. If that were the only test the object of pleadings to enable parties to come to trial, prepare to meet 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 the actual meaning. Yet, there can be no doubt that such a pleading is excipiable as being vague and embarrassing”.

[6] The test whether a pleading is vague and embarrassing has also been stated to be whether an intelligible cause of action (or defence) can be ascertained.

[7] An attack on a pleading as being vague and embarrassing cannot be found on the mere averment of lack of particularity[2].

C.        CAUSES OF COMPLAINT

[8] First defendant raised nine causes of complaint which is dealt with seriatim hereinbelow

FIRST COMPLAINT

[9] The first complaint is that plaintiff fails to allege on what basis it contends that the first defendant had a legal duty, alternatively the alleged omissions were wrongful.

[10] In paragraph 7 of plaintiff’s particulars of claim, plaintiff alleges that:

“7.1     The hole was excavated in furthering the interest of the first defendant and the excavated hole was not properly maintained or taken care of at all the times prior to the incident or death of the child.

7.2       That the excavated hole was not fenced by first defendant prior and at the time of the death of Kgosiemang Masire.

7.3       That there were no danger signs or indications or barricades or any sign indicating the dangers relating to the excavated hole to warn children or people prior to the incident.

7.4       That there were no signs or danger signs, or indications or barricades or any signs of danger indicating the depth of the excavated hole prior the death of the child.

7.5       Defendants were grossly negligent and/or failed to comply with its legal duties and obligations to:

7.5.1    Maintain or taking care of the excavated hole at all material times prior to the incident or death of the child.

7.5.2    To fence the excavated hole prior the death of Kgosiemang Masire.

7.5.3    That defendants failed to put danger signs or indication or barricades or any sign indicating the dangers relating to the excavated hole to warn children or people prior to the incident.

7.5.4    Defendants failed to put signs or danger signs, or indications or barricades or any signs of danger indicating the depth of the excavated hole.

7.5.5    Defendants failed to protect safety of the community against any harm from their action”.

[11] Liability depends on the wrongfulness of the act or omission of the defendant, in other words the conduct complained of must be legally reprehensible. The plaintiff must allege and prove the act or omission on which the cause of action is based. In the absence of wrongfulness, first defendant cannot be held liable[3]. Plaintiff must allege facts from which wrongfulness can be inferred. If a specific duty of care is relied on, the nature of the duty must be stated[4].

[12] The enquiry into the existence of a legal duty is discrete from that into negligence[5]. A mere allegation that the defendants “failed to comply with the legal duties and obligations” is insufficient because the existence of a duty to prevent loss is a conclusion of law depending on all the circumstances of the case[6].

[13] Where wrongfulness cannot be inferred from the nature of the loss suffered, the defendant’s legal duty towards the plaintiff must be defined and the breach alleged[7]. In the Supreme Court of Appeal (SCA) decision of Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd[8], the court held that:

“[12]    Recognition that we are dealing with a claim for pure economic loss brings in its wake a different approach to the element of wrongfulness. This results from the principles which have been formulated by this court so many times in the recent past that I believe they can by now be regarded as trite. These principles proceed from the premise that negligent conduct which manifests itself in the form of a positive act causing physical damage to the property or person of another is prima facie wrongful. By contrast, negligent causation of pure economic loss is not regarded as prima facie wrongful. Its wrongfulness depends on the existence of a legal duty. The imposition of this legal policy consistent with constitutional norms. In the result, conduct causing pure economic loss will only be regarded as wrongful and therefore actionable if public or legal policy considerations require that such conduct, if negligent, should attract legal liability for the resulting damages (see e.g Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SCA 741) paras 12 and 22; Gouda Boerdery BK v Transnet 2005(5) SA 490 (SCA) ([2004] 4 All SA 500) paras 12; Telematrix (supra) paras 13 – 14; Trustees, Two Oceans Aquarium Trust (supra) paras (10 – 12).

[14]      The proposition that a plaintiff claiming pure economic loss must allege wrongfulness, and plead the facts relied upon to support that essential allegation, is in principle well founded. In fact, the absence of such allegations may render the particulars of claim excipiable on the basis that no cause of action had been disclosed. (see e.g Trope v South African Reserve Bank and Another and Two Other cases 1992(3) SA 208 (T) at 214A – G; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992(1) SA 783 (A) at 797E; Telematrix (supra) para 2)”.

[14] The general norm is that, where conduct takes the form of an omission, such as in this case, such conduct is prima facie lawful[9]. The plaintiff must prove the omission on which the cause of action is based. The fact that an act was negligent does not make it wrongful.

[15] Plaintiff’s claim is for loss resulting from an omission as plaintiff attempts to show that defendant created a potential risk of harm by creating a hole filed with water and failed to take reasonable steps to prevent the risk materialising. Plaintiff alleged that the defendants failed to comply with its legal duties and obligations but failed to allege what the legal duty is on which the cause of action is based. The allegations in the particulars of claim are insufficient as the question remains whether the first defendant had a legal duty towards the plaintiff to act[10] and the legal duty was not defined.

[16] Counsel for the plaintiff, in response to a question posed by the court, submitted that plaintiff is relying on both a common law right and a statutory duty. In casu, it was incumbent on plaintiff to set out the specific allegations in support of the common law and statutory duty. In the absence of those allegations wrongfulness cannot be inferred as liability depends on wrongfulness.

[17] As plaintiff failed to define first defendant’s legal duty towards plaintiff in circumstances where he relies on a specific duty of care this renders the particulars of claim is excipiable on the grounds that it lacks averments to sustain a delictual cause of action.

SECOND, THIRD, FIFTH AND NINETH COMPLAINANTS

[18] These complaints are similar in nature and the crux of the complaint is that plaintiff failed to specify:

18.1    which defendant was allegedly negligent;

18.2    which defendant failed to conduct an investigation into the death of the minor child alternatively failed to take protective or maintenance measures;

18.3    which defendant was grossly negligent; and

18.4    against which defendant judgment is sought.

[19] I am of the view that the particulars of claim lacks particularity as to which defendant plaintiff is referring to and that such vagueness causes embarrassment of such a nature that first defendant is prejudiced in that first defendant will not in the circumstances be able to plead as it does not know if the allegations refer to the first or the second defendant.

FOURTH COMPLAINANT

[20] First defendant alleges that in paragraph 8 of the plaintiff’s particulars of claim, plaintiff alleges that:

8.1 “the defendant failed to “take protective and/alternatively maintenance measures in compliance with its legal obligations as set out in the Municipal Legislature.

8.2       In addition to the particulars of claim being vague and embarrassing in so far as to which defendant is being referred to, as set out in paragraph 3 above, the allegations are further vague and embarrassing as the plaintiff does not set out with any particularity what “legal obligations” it is referring to nor what “Municipal Legislature” he is referring to and the relevant sections thereof.

8.3       In the circumstances the plaintiff’s particulars of claim lack essential averments to sustain a cause of action and/or are vague and embarrassing. The first defendant is unable to plead to the particulars of claim and same are excipiable”.

[21] As stated supra, plaintiff failed to identify which defendant it is alleged, failed to take further steps. Furthermore plaintiff again refers to legal obligations without defining the legal duty and obligations are discussed fully supra. Plaintiff refers in broad terms to Municipal Legislation without providing any details of the specific legislation and what statutory duty it is relying on. Although the breach of a statutory duty is wrongful, first defendant’s statutory duty should be defined and the breach alleged[11].

[22] As plaintiff is relying on a statutory provision as a cause of action, plaintiff should have formulated the particulars of claim in clear terms with a reference to the provision in the specified statute. It follows that in order to plead to the aforesaid alleged breach, first defendant would require particularity of the statutory duty. In the circumstances, first defendant is unable to plead to the particulars of claim and same is excipiable. 

SIXTH COMPLAINANT

[23] In paragraph 10 of plaintiff’s particulars of claim, plaintiff pleads that he suffered general damages and funeral expenses in the amount of R5 000 000.00. Also in paragraph 10 of plaintiff’s particulars of claim, plaintiff claims R5 000 000.00 for loss of a child, general damages and funeral expenses. The aforesaid breakdown for loss of a child, general damages and funeral expenses is in contradiction to the preceding paragraph which states that the plaintiff only suffered general damages and funeral expenses in the amount of R5 000 000.00.

[24] Rule 18(10) requires the plaintiff to set out his damages in such a manner as will enable the defendant reasonably to assess the quantum thereof. Plaintiff’s particulars of claim are rendered vague and embarrassing as first defendant is unable to determine which portion of the amount claimed falls under the head of general damages, and whether plaintiff claim for loss of a child falls under the head of general damages, and if not, then under which head the damages for loss of a child are claimed. This prejudices the defendant’s ability to reasonably assess the quantum of damages.

[25] In circumstances plaintiff’s particulars of claim are vague and embarrassing. First defendant is unable to plead to the particulars of claim and same are excipiable.

SEVENTH COMPLAINANT

[26] In paragraph 10.1 of plaintiff’s particulars of claim, plaintiff claims an amount of R2 500 000.00 for “loss of a child”.

[27] “Loss of a child” is not a legally competent head of damage and the particulars of claim is in the circumstances vague and embarrassing and therefore excipiable.

EIGHTH COMPLAINANT

[28] Plaintiff’s claim is for damages suffered as a result of the death of Kgosiemang Masire, his biological son. Defendant alleges that plaintiff has not set out any basis alternatively a sufficient basis for his claim for general damages in the amount of R2 475 000.00 which will enable defendant to reasonable assess the quantum thereof.

[29] All non-patrimonial loss such as pain and suffering, and related prospective patrimonial loss and disbursements, is termed or classified general damage and rule 18(10) requires particulars of the general damages.

[30] Plaintiff alleged in his particulars of claim that his claim for general damages is for loss of amenities to life. Accordingly this ground for exception is in my view without merit as it is neither vague nor embarrassing.

D.        ORDER

[31] In the result:

31.1    First defendant’s exception on the grounds that the particulars of claim discloses no cause of action and is vague and embarrassing, is upheld.

31.2    Plaintiff is afforded 10 days from the date of this judgment to amend its particulars of claim, failing which plaintiff’s particulars of claim shall be struck out.

31.3    Plaintiff is to pay the costs of the exception.

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N. GUTTA

JUDGE OF THE HIGH COURT

 

APPEARANCES

 

DATE OF HEARING                                       :  29 JUNE 2017

DATE OF JUDGMENT                                    : 03 AUGUST 2017

ADVOCATE FOR PLAINTIFF                          : ADV I. MABUDISA

ADVOCATE FOR DEFENDANT                     : ADV COOPER

ATTORNEYS FOR PLAINTIFF                           :  VAN ROOYEN TLHAPI & WESSELS

                                                                                 (Instructed by: TA Mmokwa Attorneys)

                                                                          

ATTORNEYS FOR DEFENDANT                      :  NIENABER & WISSING ATTORNEYS

                                                                                 (Instructed by: Savage Jooste & Adams)

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