Pena v University of Fort Hare and Others (EL 240/2021) [2022] ZAECELLC 4 (3 February 2022)

Pena v University of Fort Hare and Others (EL 240/2021) [2022] ZAECELLC 4 (3 February 2022)

The court found that the plaintiff's proposed amendment to the particulars of claim failed to disclose a cause of action against SANC. The plaintiff did not plead facts establishing a causal link between SANC's conduct and the alleged damages, nor did he show that SANC owed him a duty of care under the Nursing Act in the absence of a valid study permit. The amendment was vague, embarrassing, and did not cure the defects identified in the original pleadings. The court held that allowing the amendment would serve no purpose, as it would remain excipiable and not introduce a triable issue. The application for leave to amend was therefore dismissed.

Citation
[2022] ZAECELLC 4
Parties
Plaintiff: Rashid Pena; Defendant: University of Fort Hare; Defendant: Nursing Council of South Africa; Defendant: Minister of Higher Education and Training; Defendant: Minister of Health; Defendant: Minister of Home Affairs
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
3 February 2022
Case Number
EL 240/2021
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim; Opposition by Second Defendant (sanc)
Outcome
Application for leave to amend dismissed with costs on the attorney and client scale.
Judges
Stretch
Legal Topics
Amendment of Pleadings, Exception and Irregular Step, Duty of Care, Jurisdiction of High Court, Study Permit Requirement, Causal Link in Delict
Civil Procedure Delict Amendment of Pleadings Exception and Irregular Step Duty of Care Jurisdiction of High Court Study Permit Requirement Causal Link in Delict

Case Brief

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Parties

Rashid Pena

Plaintiff

University of Fort Hare

Defendant

Nursing Council of South Africa

Defendant

Minister of Higher Education and Training

Defendant

Minister of Health

Defendant

Minister of Home Affairs

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim; Opposition by Second Defendant (sanc)

Legal Issues

  1. 1 Whether the proposed amendment to the particulars of claim discloses a cause of action against the second defendant (SANC).
  2. 2 Whether the plaintiff has pleaded sufficient facts to establish a tacit contract and a duty of care owed by SANC.
  3. 3 Whether the absence of a valid study permit precludes the plaintiff from claiming damages.

Ratio Decidendi

The court found that the plaintiff's proposed amendment to the particulars of claim failed to disclose a cause of action against SANC. The plaintiff did not plead facts establishing a causal link between SANC's conduct and the alleged damages, nor did he show that SANC owed him a duty of care under the Nursing Act in the absence of a valid study permit. The amendment was vague, embarrassing, and did not cure the defects identified in the original pleadings. The court held that allowing the amendment would serve no purpose, as it would remain excipiable and not introduce a triable issue. The application for leave to amend was therefore dismissed.

Court Disposition

Application for leave to amend dismissed with costs on the attorney and client scale.

Orders

  • The application for leave to amend the particulars of claim is dismissed.
  • The plaintiff is ordered to pay the costs of the application on the scale as between attorney and client.