Persons Listed in Schedule (44928/07) [2009] ZAGPHC 25; [2009] 2 All SA 479 (T) (12 February 2009)

Persons Listed in Schedule (44928/07) [2009] ZAGPHC 25; [2009] 2 All SA 479 (T) (12 February 2009)

The court found that the particulars of claim lacked sufficient particularity as required by rule 18(4), rendering them irregular and excipiable. The plaintiffs failed to identify representatives or categories thereof, the occasions of representations, and did not plead the necessary legal basis for repayment under section 21A of the Medical Schemes Act. Claim 1 did not disclose a cause of action as section 21A does not provide a statutory remedy for repayment, and the plaintiffs did not plead consequential invalidity or enrichment adequately. Claim 2 was excipiable for failing to plead cancellation and relief sought, claim 3 was excipiable due to contradictory allegations regarding...

Citation
[2009] ZAGPHC 25
Parties
Plaintiff: The Persons Listed in Schedule 'A' to the Particulars of Claim; Defendant: Discovery Health (Pty) Ltd; Defendant: Discovery Health Medical Scheme; Defendant: Council for Medical Schemes
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 February 2009
Case Number
44928/07
Procedural Posture
Civil Procedure / Exception and Application in Terms of Rule 30 to Particulars of Claim
Outcome
Exception and application in terms of rule 30 upheld; plaintiffs granted leave to amend particulars of claim within 30 days; costs awarded against plaintiffs.
Judges
Murphy
Legal Topics
Medical Schemes Act, Pleading Particularity, Exception Procedure, Misrepresentation, Unjust Enrichment
Civil Procedure Commercial and Corporate Medical Schemes Act Pleading Particularity Exception Procedure Misrepresentation Unjust Enrichment

Case Brief

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Parties

The Persons Listed in Schedule 'A' to the Particulars of Claim

Plaintiff

Discovery Health (Pty) Ltd

Defendant

Discovery Health Medical Scheme

Defendant

Council for Medical Schemes

Defendant

Procedural Posture

Civil Procedure / Exception and Application in Terms of Rule 30 to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim contain sufficient particularity to enable the defendants to plead without embarrassment.
  2. 2 Whether claim 1 discloses a cause of action for repayment under section 21A of the Medical Schemes Act.
  3. 3 Whether claim 2 for misrepresentation is excipiable for lack of averment of cancellation and relief sought.

Ratio Decidendi

The court found that the particulars of claim lacked sufficient particularity as required by rule 18(4), rendering them irregular and excipiable. The plaintiffs failed to identify representatives or categories thereof, the occasions of representations, and did not plead the necessary legal basis for repayment under section 21A of the Medical Schemes Act. Claim 1 did not disclose a cause of action as section 21A does not provide a statutory remedy for repayment, and the plaintiffs did not plead consequential invalidity or enrichment adequately. Claim 2 was excipiable for failing to plead cancellation and relief sought, claim 3 was excipiable due to contradictory allegations regarding...

Court Disposition

Exception and application in terms of rule 30 upheld; plaintiffs granted leave to amend particulars of claim within 30 days; costs awarded against plaintiffs.

Orders

  • The exception and the application in terms of rule 30 where applicable are upheld.
  • The plaintiffs are granted leave to amend the particulars of claim within 30 days of this order.