South African National Parks v Nyathi (2042/2019) [2021] ZAMPMBHC 71 (4 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER 2042/2019

(1) REPORTABLE: YES / NO

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

(3) REVISED.

04 /03 /2021

In the exception between:-

SOUTH AFRICAN NATIONAL PARKS

Excipient

and

GRIFFITHS NYATHI

Respondent

In re:

In the action between:-

GRIFFITHS NYATHI

Plaintiff

SOUTH AFRICAN NATIONAL PARKS

Defendant

JUDGMENT

GREYLING-COETZER AJ

Introduction

[1] This judgment concerns an exception to the plaintiff’s particulars of claim on the basis that it does not disclose a cause of action alternatively the particulars of claim are vague and embarrassing. The excipient afforded the plaintiff an opportunity in terms of Rule 23(1) to remove the causes of complaint. The plaintiff failed to do so.

[2] The excipient relies on 4 grounds of exception succinctly: being (1) No culpa arises in respect of the excipient being the custodian of nature merely allowing nature to take its course; (2) The claim is excluded by virtue of Section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”); (3) The claim has prescription and (4) The particulars of claim does not comply with Uniform rule 18(10).

[3] This application was heard during the National Lockdown and therefore via a virtual platform. It is thus apposite to make mention of the interlocutory aspects dealt with at the hearing of the matter. In the latter respect the Plaintiff failed to file its heads of argument in terms of the case management order dated 18 November 2019. Confronted with the non-compliance the plaintiff sought a postponement from the Bar in order to file the heads of argument. It was submitted that the heads of argument were prepared but erroneously not filed. A postponement of the matter was opposed by the excipient.

[4] In the result, oral argument on the merits of the exception was proceeded with but the plaintiff was afforded an opportunity until 16h00 on 11 December 2020 to file his heads of argument and the excipient until 16h00 on 18 December 2020 to file any supplementary heads of argument should they so elect. It was further ordered that the plaintiff pay the costs associated with the necessity of the further heads of argument. The plaintiff was also ordered to file an affidavit simultaneously with its heads of argument explaining the non-compliance with the case management order (“FORM

B”), failure to file its heads of argument by 27 January 2020 and why a punitive costs order, which may include payment out of pocket or forfeiture of any fee, costs or disbursement occasioned by the non-compliance should not be made against the plaintiff or the plaintiff legal representative.

[5] On 11 December 2020 the plaintiff filed its heads of argument and on 15 December 2020 the excipient files its supplementary heads of argument. The plaintiff however failed to file the explanatory affidavit as ordered. On enquiry to the registrar and general office whether the explanatory affidavit was received by them, it was reported that same was not. In the circumstances, and notwithstanding an opportunity being provided to the plaintiff to make written submission in respect of the possible consequence of his non-compliance the issue of non-compliance with the case management order will be adjudicated on the documents file on record.

[6] Leading up to the exception, various interlocutory notices were invoked which briefly requires mention. The excipient provided the plaintiff with an opportunity to remove the causes of complain which gave rise to the plaintiff delivering a “Notice of Application in terms of Rule 30” founded thereon that the Plaintiff’s particular of claim does disclose a cause of action, the exception does not contain a “proper” prayer for relief and it therefore vague and embarrassing and the exception without a prayer amounts to an irregular proceeding. This was followed by the excipient delivering a Rule 30(2)(b) notice seeking the plaintiff to remove the cause of complaint contending that the plaintiffs Rule 30 application was irregular. The basis was set out to be that the Rule 30 application was not preceded by a Rule 30(2)(b) notice and the Rule 23 notice was in compliance with Rule 23(1) therefore no prayer is required. The plaintiff then filed a notice of removal of the Rule 30 application.

[7] The exception was filed within the allowed time period and the plaintiff then delivered what he termed a “Reply to notice in terms of Rule 23(1)”. In said notice various facts not forming part of the particulars of claim were averred in answer to the grounds of complaint raised by the excipient. This was again followed by a Rule 30(2)(b) notice delivered by the excipient contending that the notice of removal of the Rule 30 application was not sufficient as a withdrawal was required and Rule 23 does not provide for a reply as filed by the plaintiff. The plaintiff did not react on said notice nor did the excipient launch a Rule 30 application.

[8] Against above backdrop the parties were at inception of the hearing requested to address the effect of aforesaid on the merits of the exception being proceeded with. It was contended on behalf of both parties that same is not a bar to the exception proceeding and they wish the merits to be dealt with. I agree in that the effect of these interlocutory notice which were not pursued to finality or conclusion is merely that although the excipient and to some extent plaintiff regarded the various notice irregular neither regarded same as prejudicially to the other. Put differently, the parties still contend that the various notice are irregular but elected not to pursue a striking out as said notices cause no prejudice.

[9] What remained to be considered in above respect is whether the court can have regard to the content of the “Reply to notice in terms of Rule 23(1)” filed by the plaintiff. Per the plaintiff the court can as same has not been struck out. Unsurprisingly the excipient took a different views in that notwithstanding it not being struck out the court can’t have regard to same as the matter stands to be decided on the pleading excepted against. I am in agreement with the excipient even in circumstances where the reply has not been struck out the court can nevertheless not have regard to same. Employing the principle set out in Salzmann v Holmes,[1] 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 court is the plaintiff’s particulars of claim. The purported reply to Rule 23(1) notice cannot be considered in a determination of the exception against the particulars of claim as same constituted facts outside the pleading excepted to.

The plaintiff’s particulars of claim

[10] The plaintiff’s case is that he was an employee of the excipient when he was on 8 June 2019 attacked by a warthog while walking from his place of employment to the employee quarters. It is alleged that the excipient has a legal duty to safeguard its employees as provided for in Section 8(1) of the Occupational Health and Safety Act 85 of 1993.

[11] It is pleaded that the attack was as a result of an “omission/negligence” on the part of the excipient in that the excipient failed to keep any alternatively proper and sufficient control over the wild animals; the excipient failed to have due regard to the safety of its employees, and to take any alternatively sufficient cognizance of the presence of wild animals and the risks to humans; the defendant failed to prevent exposure of its employees to vicious animals; and the defendant failed to avoid the vicious attack by animals when by the exercise of reasonable care it could have and should have done so.

[12] The plaintiff prays in conclusion for judgment in amount of R 1,300,00.00 [ONE MILLION, THREE HUNDRED THOUSAND RAND] together with interest and costs on an attorney an clients scale. Aforesaid amount is made up of R 900,000.00 general damages in respect of pain, suffering, discomfort, loss of amenities of life, disfigurement, emotional shock and trauma, R 50,000.00 in respect of past medical expenses, R 150 000.00 for future medical expenses and R 200,000.00 for future loss of earnings/earning capacity.

Exceptions: vague and embarrassing

[13] 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.[2]

[14] 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.[3] 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.[4]

[15] 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.[5]

[16] In Jowell v Bramwell-Jones[6] 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

[17] As stated in McKelvey v Cowan NO[7]:

“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.”

[18] In Frank v Premier Hangers CC[8] 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.”

[19] In Vermeulen v Goose Valley Investments (Pty) Ltd[9] 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.”[10]

First ground of exception – absence of culpa

[20] In respect of the first ground of exception the excipient contends that by virtue of the principle set out in Sambo v Union Government 1936 TPD 182 culpa does not arise when a defendant such as the excipient is the custodian of nature merely allowing nature to take its course.

[21] The matter of Sambo related to an exception where the magistrate upheld the exception on the basis that no cause of action was disclosed in the summons. The claim was for damages resulting from the death of a woman who was killed by two lions which crossed the boundary of the Kruger National Park and attacked her in her garden. It was alleged in the summons that the defendant had entered into a policy of protection of wild animal life and as a result the number of lions in the Park had increased considerably, and that the defendant had failed to fence the area or devise other means to prevent lions from straying from the Park. At 184 it was held that:

"... if the owner of ground introduces a danger in the shape of wild or destructive animals or noxious plants on to his ground he may be liable to his neighbours for damage caused as a result of the animals leaving his grounds and going onto his neighbours' ground and doing damage, or as a result of the noxious plants encroaching on the neighbours' land. But no authority has been cited to us which lays down that any duty rests on the owner of ground on which there are wild animals in a state of nature either to exterminate these animals or to prevent them from leaving the ground and going on to a neighbour's property, or that such a duty is created by the fact that the owner prevents their extermination by human agency or by artificial means. The owner in a case of this kind is merely allowing nature to take its course, and in the circumstances to which I have referred he is entitled to do so, and his failure to prevent the animals from straying and doing damage elsewhere is not culpa in the eyes of the law."

[22] In Mbhele v Natal Parks, Game And Fish Preservation Board 1980 (4) SA 303 (D) Broome J agreed with Greenberg J in the matter of Sambo and held that:

“that a landowner who lets nature take its course and who takes no steps to prevent wild animals, naturally on his land, from leaving his land is not guilty of culpa. Take the example of A, a breeder of pedigree livestock, whose prize bull was killed by a puff adder which the evidence established was born and lived on, but had strayed from, the farm of neighbour B, a tree farmer who was well aware of the existence of puff adders on his farm, who prohibited their destruction and strongly approved of them because they ate the rats that damaged his young trees. On those facts it would be ridiculous to suggest culpa on the part of B. The position might well be different if the evidence established that B had actually bred puff adders in large numbers under artificial conditions and that this inevitably and foreseeably led to a dangerous emigration of masses of them to A's paddocks. In such a case B would be doing far more than simply allowing nature to take its course.”

[23] In response it was argued on behalf of the plaintiff that as the defendant is an employer of the plaintiff its employee it had a legal duty in terms of Section 8(1) of the Occupational Health and Safety Act 85 of 1993 (“OHSA”) to safeguard its employees. Section 8(1) provides that:

“Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”

[24] The facts relied on in the heads of argument to substantiate above contention is not contained in the particulars of claim and it is thus impermissible to attempt to rely on same in justification. Other than aforesaid “new” facts no attempt was made by the plaintiff to place any argument before court in answer to the matter of Sambo and Mbhele. The principles set out in the matter of Sambo and Mbhele therefore stand unchallenged. The excipient is the custodian of nature merely allowing nature to take its course and culpa does therefore not arise.

Second ground of exception – Section 35 of COIDA

[25] It is contended by the excipient that by virtue of Section 35 of COIDA any liability that the excipient might have has been excluded, therefore not cause of action has been disclosed against the excipient.

[26] The plaintiff in response contended that all industries fall under OHSA and compensation is governed by COIDA. Once again tack was changed and an attempt was made to introduce new facts not forming part of the particulars of claim. In this respect the plaintiff attempted to suggest liability befalls the excipient as it failed to assist the plaintiff with a COIDA claim. Even in circumstances where I have regard to these impermissible “new” facts which found their way into the heads of argument it does not assist the plaintiff. 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.[11]

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

[28] 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 himself.

[29] 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. 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.

[30] 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.[12]

[31] 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.”

[32] Considering Section 35 of COIDA against the undisputed facts that the plaintiff was an employee who was allegedly injured by the warthog in the course and scope of his employment with the excipient no cause of action has been set out against the excipient.

[33] Even accepting for the present purpose that the excipient was negligent as alleged by the plaintiff that would merely entitle the plaintiff to increased compensation as provided for in section 56 of COIDA. Said section provides that if an employee meets with an accident due to the negligence of the employer such employee may apply to the commissioner for increased compensation in addition to the normal compensation.

[34] I am of the view that no cause of action has been disclosed in light of above findings. Nor can any evidence be lead which would disclose a cause of action. The claim is bad in law. The exception must accordingly be upheld. Having so concluded I do not regard it necessary to deal with the remaining two grounds of complaints.

[35] 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 initially seek leave to amend, on a finding that the exception is upheld, same was sought during the hearing. 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 the unchallenged authority found in the matters of Sambo and Mbhele as well as COIDA, 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.

[36] Counsel for the plaintiff conceded, rightfully so during argument that should the exception be upheld no plausible amendment can be made to 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.

[37] Costs are always within the discretion of the court, but it ordinarily follows the outcome.[13] I see no reason to deviate from this general principle.

[38] As alluded to above the plaintiff was ordered to file an affidavit simultaneously with its heads of argument explaining the non-compliance with Form B and failure to file its

heads of argument by 27 January 2020 as well as why a punitive costs order, which may include payment out of pocket or forfeiture of any fee, costs or disbursement occasioned by the non-compliance should not be made against the plaintiff or the plaintiff legal

representative. The plaintiff alternatively his legal representative failed to take up this opportunity to explain the non-compliance and advance reasons why a punitive cost order should not be made.

[39] The case management system and practice directives in this court have been introduced to avoid the very situation that was present in this matter where one parties (normally the dominus litis) does all required to ensure the matter is being dealt with on the hearing date and the other (normally the respondent) drags it feet to such an extent that the matter is either not dealt with on the hearing date or delayed to the prejudice of the dominus litis party. Such conduct does not only frustrate the dominus litis party’s right to finality in a matter but encroaches on the effective and efficient running of the court.

[40] The plaintiff alternatively his legal representative has in this matter not only failed to the FORM B, which in itself is a court order but ignored the subsequently court order of 10 December 2020. Such conduct offends not only the court who made the order but the rule of law. The compliance with the FORM B cannot be laid before the door of the plaintiff as this process is generally under the care and control of the attorney of record. In addition, Counsel on behalf of the plaintiff submitted that although the heads of argument were prepared same was due to the conduct of the attorney of record not filed, the reasons for same remain unknown, similarly to the reasons for not taking up the opportunity to explain and place facts before court why a punitive court order should not be made. Aforesaid however does not detract from the fact that a second court order was ignored.

[41] 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;

5 The plaintiff’s attorney of record to forfeit his fee in respect of the drafting of the heads of argument filed on behalf of the plaintiff.

DATE OF VIRTUAL HEARD:

10 December 2020

PLAINTIFF COMPLIANCE WITH

PARAGRAPH 2 OF THE ORDER DATED

10 DECEMBER 2020:

11 December 2020

EXCIPIENTS COMPLIANCE WITH

ORDER DATED 10 DECEMBER 2020: 15 December 2020

DATE OF JUDGMENT:

04 March 2021

ELECTRONICALLY HANDED DOWN

FOR THE EXCIPIENT: ADV KROEZE

instructed by Whalley & van der Lith Inc C/O Pieter Swanepoel Attorneys

barry@wvl.co.za

FOR THE PLAINTIFF/RESPONDENT: ADV SILINDZA

instructed by S.N Mkhatshwa Attorneys

snmkhatshwaattorneys@gmail.com

[1]

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

[2]

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

[3] 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

[4] Lockhat supra at 777E

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

[6]

1998 (1) SA 836 (W) at 902J – 903B

[7]

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

[8]

2008 (3) SA 594 (C)

[9]

2001 (3) SA 986 (SCA)

[10]

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

[11]

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

[12]

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

[13]

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