Crocodile Valley Citrus Farm v Mathlase and Others (1556/2019) [2020] ZAMPMBHC 44 (19 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER 1556/2019

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

19 /11 /2020

In the exception between:-

CROCODILE VALLEY CITRUS FARM

Excipient

and

MATHLASE, LILLY ANN

First Respondent

COMPENSATION COMMISSIONER

Second Respondent

DIRECTOR GENERAL OF LABOUR

Third Respondent

In re:

In the action between:-

MATHLASE, LILLY ANN

Plaintiff

CROCODILE VALLEY CITRUS FARM

First Defendant

COMPENSATION COMMISSIONER

Second Defendant

DIRECTOR GENERAL OF LABOUR

Third Defendant

JUDGMENT

GREYLING-COETZER AJ

Introduction

[1] This judgment concerns an exception to the plaintiff’s particulars of claim on the basis that the allegations contained

therein are vague and embarrassing and that it lacks averments which are necessary to sustain a cause of action. Notwithstanding the excipient’s Rule 23 notice dated 4 July 2019 the plaintiff failed to remove the cause of complaint, resultant in the exception. The excipient relies on 3 grounds of exception, which are set out in detail in the exception. I will deal with each of the complaints raised in turn below.

[2] This application was heard during the National Lockdown and therefore via a virtual platform. It is therefore apposite to make mention of the interlocutory aspects dealt with before the merits.

[3] A condonation application brought by the excipient, for the belated filing of the notice of exception were also to be adjudicated upon. At the commencement of the hearing, the parties indicated that by agreement the condonation application will not be persisted with, as the plaintiff no longer opposes the condonation, and is satisfied that the exception was timeously filed.

The plaintiff’s particulars of claim

[4] The plaintiff’s case is that she was an employee of the excipient when a workplace accident occurred causing an injury to her eye. The accident was caused by the sole negligence of the excipient who failed to provide proper protective gear and failed in its legal duty of care towards the plaintiff.

[5] It is pleaded in paragraph 8 that:

“ The First Defendant neglected its statutory duty to report the injury to the Second and Third Defendants, alternatively if the accident was reported, the Second and Third Defendants failed or neglected to perform their statutory duty of investigating the circumstances that led to the occurrence of the injury.”

[6] In paragraphs 10, 11 and 12 the plaintiff pleads:

“The defendants jointly owed (sic) a duty of care to the Plaintiff, to ensure safe working conditions, investigating the injuries and compensate the Plaintiff for injuries sustained as the (sic) result of the workplace injury aforesaid.”

“The First, Second and Third Defendant are jointly and severally liable and as a direct result are jointly liable for damages occasion by the Plaintiff in the total of R 5 000 000.00, the one paying the other to be absolved.”

“In the premises the Defendants are jointly and severely liable to compensate the Plaintiff in the aforesaid amount….”

[7] The plaintiff prays as follow in conclusion:

“WHEREFORE the Plaintiff claims from the defendant….”

The parties competing contentions

[8] The excipient’s first ground is founded thereon that per paragraph 8 the plaintiff pleads that the excipient failed to report the accident, as it was obliged to do in terms of Section 39 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”). In ostensible support of aforesaid the plaintiff annexed as annexure “LAM1” the “employer’s report of an accident”. These documents contains a handwritten Compensation Commissioner’s reference and bearing the official stamp of the Department of Labour (Mbombela).

[9] It is contended on behalf of the excipient that the content of paragraph 8 is in direct contradiction to the content of LAM1. On this basis the excipient concludes the particulars of claim is vague and the excipient would be embarrassed if it was to be required to plead thereto, alternatively, the particulars do not disclose a cause of action against the excipient.

[10] In answer the plaintiff, referred the Court to paragraph 10 of the plaintiff’s heads of argument. Paragraph 10 submits that at face value it would appear that the matter was reported by the excipient at the Department of Labour, however said was not the true factual position. The heads of argument then sets out evidence in explanation of aforesaid. Aforesaid did not formed part of the allegations set out in the particulars of claim.

[11] In addition it was argued that the excipient was attempting to use the exception to resolve a dispute of fact, and the court was referred to the matter of FNB v Perry[1] and that these issues can be dealt with in a special plea.

[12] The second ground is directed at paragraphs 10, 11 and 12 of the particulars of claim. Therein the plaintiff seeks to hold the excipient, together with the second- and third defendants jointly and severally liable for damages allegedly suffered due to the accident.

[13] It is contended on behalf of the excipient that the excipient and remaining defendants could never be, on any possible construction, jointly and severally liable to the plaintiff. Nor was a basis for the joint and several liability pleaded by the plaintiff.

[14] The duties of care contended for by the plaintiff is that the defendants jointly needed to ensure safe working conditions,

investigate the incident and compensate the plaintiff for injuries sustained.

[15] It was contended by Counsel for the excipient that the duty to compensate the employee for injuries sustained in the workplace can never be a duty of care owed to the plaintiff, and cannot rest upon an employer (such as the excipient), as same is expressly excluded by Section 35(1) of COIDA. Nor can the statutory duty to investigate ever fall on the excipients shoulders.

[16] It was further argued that to add to the confusion and vagueness, the particulars of claim prays for judgment against a single defendant, although it is not disclosed which of the defendants are referred to.

[17] It was argued by Mr Ncongwane on behalf of the plaintiff that in terms of Section 2(1) of the Apportionment of Damages Act 34 of 1956, where two or more persons are jointly or severally liable in delict to a third person for the same damages, such persons may be sued in the same action.

[18] The plaintiff persisted that the excipient and further defendants jointly owe a duty of care to the plaintiff to ensure safe working conditions, to investigate the injuries and to compensate the plaintiff for the injuries sustained as a result of the workplace injury. It was submitted that it is logically unacceptable that an employee, such as the plaintiff, sustains an injury at the workplace in 2013, and still to this day has not been compensated. It was contended that the only logical explanation is that the excipient and other defendants failed to carry out their tasks as provided for in COIDA.

[19] It was argued that in the alternative, Section 40(2) of COIDA stipulates that the plaintiff shall at the request of the Director General furnish such further particulars regarding the accident and injuries concerned, as the Director General may inquire. Therefore, the excipient shall be jointly and severally liable in order to account for the delay in justice, considering that the plaintiff has suffered more injury than that which was necessary.

[20] The third ground is founded thereon that the particulars of claim does not disclose a cause of action, as liability in respect of the excipient is specifically precluded by Section 35 of COIDA.

[21] The plaintiff conceded that Section 35(1) of COIDA on the face of it, exempts any employer such as the excipient from being sued for damages. However, it was argued that the courts are inclined to determine the merits for the employer to be exempted.

[22] It was further contended that the courts have a duty to promote the spirit and purpose of the object of the Bill of Rights, as required by Section 39(2) of the Constitution. If the exception is granted, the plaintiff’s right to access to court, as enshrined in Section 34 of the Bill of Rights, will be violated.

[23] Prompted by the court as to whether the plaintiff wished to refer to any specific authority, in answer to the matter of Jooste v Score Super Market Trading (Pty) Ltd (Minister of Labour intervening)[2] Mr Ncongwane submitted that he does not wish to do so but stated that the Jooste case is distinguishable on the facts.

Exceptions: vague and embarrassing

[24] Rule 23(1) provides that an exception may be taken against a pleading on the grounds that it is vague and embarrassing. Such an exception strikes at the formulation of the cause of action and not its legal validity.[3]

[25] A pleading may be vague if it fails to provide the degree of detail necessary in a particular case to inform the other party of the case being advanced.[4] The typical prejudice which justifies an exception is if the allegations in the particulars of claim are such that the defendant is unable to plead properly.[5]

[26] The question is whether “the embarrassment is, or is not, so serious as to cause prejudice to the excipient if he is compelled to plead to the paragraph in the form to which he objects”. The evaluation of prejudice is a factual enquiry, and is a question of degree. The decision must necessarily be influenced by the nature of the allegations, their content, the nature of the claim and the relationship between the parties.[6]

[27] In Jowell v Bramwell-Jones[7] the Court referred to the following general principles insofar as exceptions are concerned:

“a. Minor blemishes are irrelevant: pleadings must be read as a whole; no paragraph can be read in isolation;

b. ...

c. a distinction must be drawn between the facta probanda or primary factual allegations which every plaintiff must make, and the facta probantia which are the secondary allegations upon which the plaintiff will rely in support of his primary factual allegations. Generally speaking, the latter are matters for particulars for trial and even then are limited. For the rest, they are matters for evidence;

d. only facts need be pleaded; conclusion of law need not be pleaded; ...”

Exceptions : no cause of action

[28] As stated in McKelvey v Cowan NO[8]:

“It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleadings, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.”

[29] In Frank v Premier Hangers CC[9] Griesel J stated as follows:

“[11] In order to succeed in its exception, the plaintiff has the onus to persuade the court that, upon every interpretation which the defendant's plea and counterclaim can reasonably bear, no defence or cause of action is disclosed. Failing this, the exception ought not to be upheld.”

[30] In Vermeulen v Goose Valley Investments (Pty) Ltd[10] Marais JA it was stated that:

“[7] It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it be shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law.”[11]

[31] In respect of the first ground of complaint and employing the principle set out in Salzmann v Holmes,[12] a court must look at the pleading excepted to as it stands, and no facts outside those stated in the pleading can be brought into issue, except in the case of inconsistency. What is before me is the plaintiff’s particulars of claim wherein the plaintiff, in paragraph 8 thereof, alleges that the excipient neglected its statutory duty to report the incident to the second- and third

defendants, alternatively, if the incident was reported, the second- and third defendants failed or neglected to perform their statutory duties to investigate the circumstances that led to the occurrence of the incident.

[32] This, read with annexure “LAM1” to the particulars of claim, which clearly indicates a workman’s compensation

reference number and contains stamps from the Department of Labour, is inconsistent with paragraph 8 of the particulars of claim. From a cursory reading, the documents relied on does contradicts the content of paragraph 8 and actually absolves the excipient from any negligence in respect if its statutory duty to report, founding the negligence on the remaining defendants. Alternatively, should I be wrong the allegation of failure to report does not found liability as prayed for. This aspect is more fully dealt with below.

[33] The second cause of complaint is directed at the plaintiff attempting to hold the excipient, together with the second- and third defendants jointly and severally liable for the damages allegedly suffered by the plaintiff. The basis of same is found in paragraph 10 of the particulars of claim, wherein it is alleged that the defendants jointly owe a duty of care to the plaintiff to ensure (1) safe working conditions, (2) to investigate the injury and (3) to compensate the plaintiff for injuries sustained as a result of the workplace injury.

[34] The duty to ensure safe working conditions, to investigate the injury and to compensate are three completely different responsibilities and statutory duties attributed to different defendants. What the plaintiff seems to suggest is that the conduct of omission resulted in the damage. It is trite that conduct in the form of an omission is prima facie lawful, unless the defendants had a legal duty towards the plaintiff to act in a certain manner.[13]

[35] The reliance on an omission or the mere fact that the excipient was less dilatory in expeditiously reporting the matter, does not assist the plaintiff in any way to sustain a cause of action and is bad in law.

[36] Section 39(1) of COIDA provides that an employer shall within 7 (seven) days after having received notice of an accident, or having learned in some other way, that an employee has met with an accident, report the accident to the Commissioner in the prescribed manner. Further and as provided for in Section 38 of COIDA, even if the excipient failed, the plaintiff had the right to report the incident (although same is irrelevant, as per the pleadings before me, the incident was reported).

[37] Whatever omission or delay there may have been, it does not transform the plaintiff’s claim into a delictual one, entitling the plaintiff to institute an action for damages under the common law. The plaintiff’s remedy was to seek compensation pursuant to the mechanisms created by COIDA. It is and remains common cause that the injuries sustained to the plaintiff’s eye were and remain an occupational injury in terms thereof. Furthermore Section 39(6) read with 39(8) explicitly deal with an omission on the part of the excipient and similarly does not found the liability claimed by the plaintiff.

[38] Although it is encumbered upon the excipient to ensure safe working conditions in respect of applicable health and safety legislation, to investigate the injuries and to compensation for injuries sustained, can definitely not be a duty of care prescribed to the excipient. Similarly, the second defendant cannot be said to be responsible to ensure safe working conditions or to compensate the plaintiff outside the prescriptions of COIDA.

[39] It was further contended, although not pleaded in the particulars of claim, on behalf of the plaintiff that the basis for joint and several liability lies in Section 2(1) of the Apportionment of Damages Act 34 of 1956, which provides as follows:-

“(1) Where it is alleged that two or more persons are jointly or severally liable in delict to a third person … for the same damage, such persons … may be sued in the same action.”

[40] The Apportionment of Damages Act 34 of 1956 accordingly merely authorises that such joint wrongdoers may be sued in the same action. It does not constitute a basis to be jointly and severally liable. Furthermore, it is clear that the defendants cannot be joint wrongdoers in circumstances where they do not share the ostensible duty of care relied upon. Nor can the excipient be a joint wrongdoer having regard to what has been found in respect of paragraph 8 above and the section 35 of COIDA, dealt with below.

[41] As alluded to above an exception based on the contention that no cause of action is disclosed, is aimed at obtaining a decision on a point of law which

will be dispositive of the case, in whole or in part, without the need to lead unnecessary evidence at trial.[14]

[42] Section 35(1) of COIDA provides as follows:-

“(1) No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee's employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.”

[43] Considering Section 35 of COIDA no cause of action has been set out against the excipient.

[44] The gravamen of the plaintiff’s contentions in defence, is that although Section 35 provides as aforesaid, “the courts are inclined to determine the merits for the employer to be exempted”. I cannot agree with this statement. Section 35 does not infuse the Court with a discretion in respect of when an employer will be liable and when not. It plainly and unequivocally states no action shall in said circumstances lie again the employer. Obviously a different position will apply if the allegations against the employer were of an intentional or criminal nature.

[45] It was further contended on behalf of the plaintiff that the court has a duty to promote the spirit, purpose and object of the Bill of Rights, as required by Section 39(2) of the Constitution, and that granting the exception will have the effect that the plaintiff’s right to access to courts will be violated, as the excipient failed to abide by COIDA in respect of Section 39(1) and 42. The omission for as far as it might exist has been deal with above.

[46] Other than a forlorn conclusion contained in the heads of argument that the exception based on section 35 of COIDA is unconstitutional, no basis has been laid to conclude that an exception founded on established law and statutory principles, could be regarded unconstitutional.

[47] The validity of Section 35 of COIDA was considered and confirmed by the Constitutional Court in the matter of Jooste[15] (supra). The relevant dictum having been widely applied by both the Supreme Court of Appeal and the Constitutional Court.[16] There is thus no reason not to apply the principles set out in the Jooste matter and consequentially no scope to suggest and validly contend that the application of Section 35 of COIDA in this exception

infringes upon the plaintiff’s constitutional rights.

[48] I am accordingly of the view that no cause of action has been disclosed in light of above findings. No evidence can be lead which would disclose a cause of action. The claim is bad in law. The exception must accordingly be upheld.

[49] The only remaining issue is whether it would be appropriate to grant the usual order, that the plaintiff be granted leave to amend her particulars of claim. Although the plaintiff did not seek leave to amend on a finding that the exception is upheld I do find it prudent to consider as it’s the appropriate order to make in most circumstances.

[50] It was contended on behalf of the excipient that leave to amend is not an immutable consequence, and in the present instance it would serve no purpose as the claim against the excipient is precluded by statue, which statute has been found constitutionally sound and no amendment to the particulars of claim could breathe life into the claim of the plaintiff against the excipient.

[51] Upholding an exception to a declaration or a combined summons does not automatically carry with it the dismissal of the summons or the action. The unsuccessful party may apply for leave to amend his or her pleadings. In the present instance it should also be kept in mind that only the excipient’s claim would be affected.

[52] Section 35 of COIDA has stood constitutional muster. It is not conceivable that on the pleaded facts the respondent could seek compensation outside of COIDA as Section 35 of COIDA extinguishes the employee’s common-law rights against the employer. Against this backdrop I cannot see that there exists a plausible amendment that can establish a cause of action against the excipient on the pleaded facts. Consequentially, it would not be appropriate in the circumstances to grant leave to the plaintiff to amend her particulars of claim.

[53] Having concluded as aforesaid, the only issue remaining is that of costs. Costs are always within the discretion of the court, but it ordinarily follows outcome.[17] I see no reason to deviate from this general rule.

[54] Therefore I make the following order:-

1 The excipient’s exception is upheld;

2 The plaintiff’s particulars of claim in respect of the excipient is set aside;

3 The plaintiff’s claim as against the excipient is dismissed;

4 The plaintiff is ordered to pay the cost of the action.

DATE OF VIRTUAL HEARD: 20 AUGUST 2020

DATE OF JUDGMENT: 19 NOVEMBER 2020

ELECTRONICALLY HANDED DOWN

FOR THE EXCIPIENT: ADV BENSCH

CLYDE & CO C/O DU TOIT SMUTS & PARTNERS

REF: SA Cilliers/mvw/C1/19

shane.dewinnaar@clydeco.com

acilliers@dtsa.co.za

FOR THE 1st RESPONDENT: MR NCONGWANE

MACBETH ATTORNEYS

REF: MM Ncongwane/MAC-1081

info@macbethattorneys.co.za

[1] 2001 (3) SA 960 (SCA)

[2] 1999 (2) SA 1 (CC)

[3] Trope v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A) at 269I

[4] Lockhat v Minister of Interior 1960 (3) SA 765 (D) at 777D; Nasionale Aartappelkoöperasie Bpk v PriceWaterhouseCoopers 2001 (2) SA 790 (T) at 797J–798A

[5] Lockhat supra at 777E

[6] ABSA Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (W) at 422A

[7] 1998 (1) SA 836 (W) at 902J – 903B

[8] 1980 (4) SA 525 (Z) at 526D-E

[9] 2008 (3) SA 594 (C)

[10] 2001 (3) SA 986 (SCA)

[11] See also Koth Property Consultants CC v Lepelle-Nkumpi Local Municipality Ltd 2006 (2) SA 25 (T) para [9] at 28, 29; FNB of SA Ltd v Perry NO 2001 (3) SA 960 (SCA) para [6] at 965; Klokow v Sullivan 2006 (1) SA 259 (SCA) para [15] at 265

[12] 1914 AD 152 at 156. See also Minister of Safety and Security v Hamilton 2001 (3) SA 50 (SCA) at 52G - H

[13] Absa Bank Ltd v Fouché 2003 (1) SA 176 (SCA)

[14] Alphina Investments Ltd v Blacher 2008 (5) SA 479 (A) at 483B

[15] 1999 (2) SA 1 (CC)

[16] Road Accident Fund v Maphiri 2004 (2) SA 258 (SCA); MEC For Education, Western Cape Province v Strauss 2008 (2) SA 366 (SCA).

[17] Union Government (Minister of Railways & Harbours) v Heiberg 1919 AD 477 at 484