B.M v Member of the Executive, Council responsible for the Department of Health, Eastern Cape Province and Another (590/08) [2009] ZAECBHC 7 (17 July 2009)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, BHISHO JUDGMENT

PARTIES: B[...] M[...] PLAINTIFF AND MEMBER OF THE EXECUTIVE COUNCIL RESPONSIBLE FOR THE DEPARTMENT OF HEALTH, EASTERN CAPE PROVINCE FIRST DEFENDANT THE MINISTER OF HEALTH OF THE REPUBLIC OF SOUTH AFRICA SECOND DEFENDANT

[1] Registrar:

[2] Magistrate:

[3] High Court: EASTERN CAPE HIGH COURT, BHISHO

DATE HEARD: 02/02/2009

DATE DELIVERED: 05/02/2009

JUDGE(S): JUDGE SANGONI

LEGAL REPRESENTATIVES –

Appearances:

1. for the Plaintiff Adv A G Dugmore Instructed by Smith Tabata Inc King William’s Town 2. for the Defendant Adv S M Mbenenge S C Adv M H Sishuba Instructed by The State Attorney King William’s Town

CASE INFORMATION –

1. Nature of proceedings :

This is a claim for damages against the first and second defendant arising from the death of the Plaintiff’s daughter while under the medical care of the doctors and nurses as a patient at Cecilia Makiwane Hospital during April 2007.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, BHISHO)

CASE NO. 590/08

In the matter between:

B[...] M[...] Plaintiff and MEMBER OF THE EXECUTIVE COUNCIL RESPONSIBLE FOR THE DEPARTMENT OF HEALTH, EASTERN CAPE PROVINCE First Defendant THE MINISTER OF HEALTH OF THE REPUBLIC OF SOUTH AFRICA Second Defendant

JUDGMENT

SANGONI J:

[1] On 13 August 2008 the plaintiff, an unmarried female born on 27 December 1982, instituted an action against the defendants claiming damages arising from the death of the plaintiff’s one month old daughter, L[...], while under the medical care of the doctors and nurses as a patient at Cecilia Makiwane Hospital during April 2007.

[2] The plaintiff alleges that the cause of death, was the wrongful, unlawful and negligent conduct of the aforementioned doctors and nurses by, inter alia, failing to afford L[...] reasonably professional medical treatment. As a result of the said conduct “the plaintiff has suffered severe shock, emotional trauma, psychological pain and suffering and depression, and the plaintiff continues to suffer and will suffer permanently, psychological pain and emotional pain and suffering, and depression”.

[3] The general damages claimed are in the sum of R750,000. No specific amount is allocated to each subhead. Purportedly acting in terms of Rule 23(1) of the Uniform Rules of Court the defendants, current excipients, filed and served a notice dated 16 February 2009, calling on the plaintiff to remove the causes of complaint referred to in the said notice. The

substance of the complaint raised was that the provisions of Rule 18(1) of the Uniform Rules of Court were not complied with as the plaintiff has not set out the particulars that would enable the defendants/excipients to reasonably assess the quantum of the damages claimed. The provisions of Rule 18(1) deal with the signing of a summons and have no relevance to the grounds advanced for the exception. It appears the defendants intended to cite Rule 18(10). The proviso to Rule 18(10) provides that a “plaintiff suing for damages shall set them out in such manner as will enable the defendant reasonably to assess the quantum thereof …”

[4] In the Rule 23 notice referred to above, the excipients called for the removal of the source of complaint within fifteen days of service of the notice. There being no response thereto the defendants filed and served a notice of exception on 2 April 2009, founded, in essence, on the ground that the plaintiff’s particulars of claim are vague and embarrassing in that Rule 18 had not been complied with. In both the exception and the preceding notice the excipients rely on the violation of Rule 18. During the hearing Mr Mbenenge SC, who appeared together with Mr Sishuba for the excipients, confirmed that the excipients would stand or fall by their contention with regard to the violation of Rule 18.

[5] On behalf of the respondent Mr Dugmore argued that the route taken by the excipients to except to the particulars of claim is inappropriate

and unfounded. The issue of non-compliance with Rule 18 is quite distinct from the issue of vagueness and embarrassment.

In terms of Rule 18(12) non-compliance with Rule 18 is deemed to be an irregular step which can be remedied in accordance with Rule 30. The complaint that a pleading is vague and embarrassing strikes at the formulation of the cause of action, the vagueness has to relate to the cause of action. In Venter and Others NNO v. Barrit[1] Potgieter AJ referred to the phrase – vague and embarrassing – as follows:

“Generally the information in a declaration or particulars of claim need only be sufficient for the defendant to plead thereto. The exception stage is not the time for the defendant to complain that he does not have enough information to prepare for trial or may be taken by surprise at the trial. That comes later in the (often long and cumbersome) journey to the doors of the court, after, inter alia, discovery of documents and requests for trial particulars had been made.”

[6] Flemming DJP in Absa Bank Ltd[2] case made the distinction between the remedies for removal of an irregular step and exception when he said:

“Such vagueness does not necessarily follow from each non-compliance with Rule 18 of the Uniform Rules of Court. I disagree wit the contention that such non-compliance creates two alternative remedies for an opposite party so that the third party was entitled to simply elect and therefore to note an exception. If a pleading is vague and embarrassing, it is excipiable because of that quality. In that event it is fortuitous if in the process of creating a vague statement of claim Court Rules were disobeyed. If there is vagueness which justifies an exception, the exception is sound whether or not the Court Rule was breached. If on the other hand, such vagueness is lacking, the exception should fail even when the party is entitled to attack the pleading as an irregular proceeding because of non-compliance with the Court Rules.”

[7] In casu even though there may be a good case made out for non-compliance with Rule 18 but, in my view, no such case for vagueness and embarrassment. The element of vagueness and embarrassment has also not been established. The exception must therefore fail. What is complained of does not strike at the formulation of the cause of action either and may even be addressed in the particulars for trial.[3]

In the result I dismiss the exception with costs.

C T SANGONI

JUDGE OF THE HIGH COURT

Counsel for the Plaintiff: Advocate A G Dugmore Attorneys for the Plaintiff: Smith Tabata Inc King William’s Town Counsel for the Defendant: Adv S M Mbenenge SC Adv M H Sishuba Attorneys for the Defendant: The State Attorney King William’s Town Date heard: 06/09/09 Date Judgment delivered: 07/17/09

[1] Venter and Others NNO v Barrit : Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd SA 2008(4) 639(CPD)

[2] Absa Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 at 418F to G.

[3] See Venter and Others - supra