Ngobeni v Eskom Holdings Soc Limited
| Jurisdiction | South Africa |
| Judge | N Davis J |
| Judgment Date | 11 March 2022 |
| Docket Number | 31259/2018 |
| Hearing Date | 07 March 2022 |
| Court | Gauteng Division, Pretoria |
| Citation | 2022 JDR 0857 (GP) |
Davis J:
Introduction
On 12 February 2016, the plaintiff's son, then barely five years old, fell into an 8 metre deep hole dug alongside an electric pole outside the Dipere Primary School (also referred to in some of the papers as the De Beer Primary School). Fortunately, the school bus driver pulled him out. He was unconscious, taken to the principal's office and from there to the hospital. Again fortunately, apart from a scar on his forehead and nose, he has retained very little impairment from his ordeal. All this could be gleaned from reports from a Clinical Neuropsychologist and a Forensic Psychiatrist, delivered by the plaintiff in terms of Rule 36(9)(b). None of the reports however feature in the plaintiff's particulars of claim and the defendant has taken exception thereto on various grounds as more fully dealt with hereinlater.
The particulars of claim:
The relevant portions of the plaintiff's particulars of claim reads as follows:
3.
"The cause of action arose wholly within the jurisdiction of the above Honourable Court.
4.
At all material times hereto and more specifically on the 12th February 2016 the Defendant had dug a hole in front of Dipere Primary School. The hole was dug by the Defendant's personnel who were at all material times acting within the course and scope of their employment and in furtherance of the interests of the Defendant.
5.
2022 JDR 0857 p3
Davis J
Alternatively to paragraph 4 supra, the personnel were duly authorised representatives of the Defendant tasked to fulfill their duties ...
6.
Furthermore, the Defendant's personnel owed a legal duty towards the Plaintiff's minor child ...
7.
The Defendant owed a legal duty towards the Plaintiff's minor child to manage and ensure that any hole dug should have warning signs that is deemed necessary ...
[allegations are then pleaded as to the breach of the duties and the actual falling of the child into the hole]
11.
As a result of the negligence aforesaid, the Plaintiff's minor child sustained the following injuries:
Head injury;
Lacerations on the forehead;
Emotional shock and trauma.
12.
As a result of the injuries sustained, the Plaintiff's minor child suffered and will suffer the following damages:
|
12.1 |
Past hospital expenses |
R 5 000.00. |
2022 JDR 0857 p4
Davis J
The supporting documentations is not to hand and the amount claimed is an estimate.
|
12.2 |
Past medical expenses |
R 5 000.00 |
The supporting documentation not to hand and the amount claimed is an estimate.
|
12.3 |
Future medical expenses |
R490 000.00 |
The supporting documentation is not to hand and the amount is an estimate.
|
12.4 |
Future loss of earnings |
R 500 000.00 |
The supporting documentation is not at hand and the amount is an estimate.
|
12.5 |
General damages |
R 1 000 000.00 |
For pain and suffering, loss of amenities of life and disability.
|
|
|
R 2 000 000.00". |
The exception
In a notice of exception, the Defendant raised four objections to the particulars of claim:
First objection
The defendant contended that no facts had been pleaded to establish whether the delict had taken place within this court's area of jurisdiction. In fact, it was argued that maps indicate that the school is in fact situated in Mpumalanga and that this court therefore has no jurisdiction to entertain the action.
2022 JDR 0857 p5
Davis J
Second objection
The second objection is formulated succinctly in the following terms: "The plaintiff has failed to identify who dug the alleged hole. The plaintiff did not provide particulars of the personnel that they allege to have dug this hole and such personnel or representatives are not included in this claim. The plaintiff did not provide the necessary averments that the alleged personnel are employees of the defendant".
Third objection
This objection is simply that the plaintiff has failed to attach supporting medical or expert reports to its particulars of claim and that "upon every interpretation of the particulars of claim the plaintiff has failed to provide the necessary documentation to support their (sic) claim".
Fourth objection
This relates to paragraph 12 of the particulars of claim and the defendant avers that the plaintiff "not only fails to justify the said amount but also fails to indicate as to how the quantum of damages has been calculated as required by High Court Rule 18(10)".
In all instances the defendant aver that the particulars of claim do not disclose a cause of action and, save in respect of the issue of jurisdiction, are vague and embarrassing.
General principles
The applicable principles regarding exceptions and the consideration thereof are trite. They are:
The purpose of an exception alleging that a pleading lacks averments that are necessary to sustain action or defence is to dispose the leading of
2022 JDR 0857 p6
Davis J
evidence at the trial. Such an exception must go to the root of the claim or defence. See: Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) and Trustees for the time being of the Bus Industry Restructuring Fund v Break Though Investments CC 2008 (1) SA 67 (SCA).
An exception is decided on the allegations of the respondent only and cannot be used to solve a factual dispute. See: First National Bank of SA Ltd v Perry NO 2001 (3) SA 960 (SCA).
Pleadings must comply with the Rules of Court, particularly Rule 18(4), requiring clear, concise statement of the material facts on which the pleader relies for his claim.
In particular, Rule 18(10) provides that, in cases where a plaintiff is suing for damages for personal injury, he must plead the nature and effect of the injuries, the nature and effect of any disability and shall, as far as is practicable, plead particulars in respect of how claims are to be made up. The Rule reads as follows:
"A plaintiff suing for damages shall set them out in such manner as well enable the defendant reasonably to assess the quantum thereof provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the nature and extent of the...
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Ngobeni v Eskom Holdings Soc Limited
...at all material times acting within the course and scope of their employment and in furtherance of the interests of the Defendant. 5. 2022 JDR 0857 Davis J Alternatively to paragraph 4 supra, the personnel were duly authorised representatives of the Defendant tasked to fulfill their duties ......
-
Ngobeni v Eskom Holdings Soc Limited
...at all material times acting within the course and scope of their employment and in furtherance of the interests of the Defendant. 5. 2022 JDR 0857 Davis J Alternatively to paragraph 4 supra, the personnel were duly authorised representatives of the Defendant tasked to fulfill their duties ......
-
Ngobeni v Eskom Holdings Soc Limited
...at all material times acting within the course and scope of their employment and in furtherance of the interests of the Defendant. 5. 2022 JDR 0857 Davis J Alternatively to paragraph 4 supra, the personnel were duly authorised representatives of the Defendant tasked to fulfill their duties ......