Pena v University of Fort Hare

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: IT Stretch J
• Judgment Date: 03 February 2022
• Docket Number: EL 240/2021
• Hearing Date: 02 December 2021
• Court: East London Circuit Local Division
• Citation: 2022 JDR 0350 (ECGEL)

Stretch J:

[1]

On 26 February 2021 the plaintiff instituted action against the first two defendants (hereinafter referred to as "UFH" and "SANC" respectively) for damages of R5,5 million allegedly flowing from certain administrative action taken by UFH as a result of which the plaintiff failed to complete a nursing degree with UFH. During April 2021, SANC delivered a notice of exception averring that the plaintiff's particulars of claim are vague and embarrassing, that they lack averments necessary to sustain an action and that they constitute an irregular step, and affording the plaintiff 15 days within which to remove the causes of complaint. [1]

[2]

During May 2021, the plaintiff duly delivered a notice of intention to amend his particulars, purportedly in an attempt to cure the causes of complaint. The proposed amendment in fact constitutes a substitution of the entire original claim. SANC, in a seven-page document, objected to the proposed amendment, clearly and concisely stating the grounds upon which the objection is founded, [2] being in essence similar to those raised in its initial notice of exception. The objection further notifies the plaintiff that should he proceed with the application to amend in its present form, SANC would pursue a de bonis propriis costs order against the plaintiff's attorney. The plaintiff nevertheless persisted with the existing application.

[3]

It appears to be the plaintiff's case that the grounds upon which SANC are opposing the amendment, do not constitute grounds precluding an amendment, but are defences which SANC must raise in its plea. SANC has raised nine grounds of objection to the proposed amendment. I will attempt to deal with them seriatim.

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Failure to enunciate facts and circumstances from which the alleged tacit contract is inferred:

[4]

The proposed amendment introduces an averment that the plaintiff's claim arises from the breach of a written, alternatively tacit agreement between the plaintiff and UFH (the first defendant) for the plaintiff's enrolment and tuition in nursing studies. It is contended on behalf of SANC (who is the second defendant) that the proposed amendment does not enunciate the facts and circumstances from which the tacit contract is inferred. It is argued that this will render the amendment excipiable as it will fail to disclose a cause of action premised on the alleged tacit agreement.

[5]

The plaintiff contends that for a tacit agreement to arise, the plaintiff need only "allege and prove a parallel conduct by rivals", in other words "one which was preceded by suggestive communications that do not themselves form an explicit agreement". The proposed amendment relating to the agreement reads as follows:

'Sometime in 2015, Plaintiff, who is a non-national, applied to study a degree in Nursing at University of Fort Hare (hereinafter referred to as Fort Hare), the First Defendant. Plaintiff was admitted by the said institution to undertake nursing studies. As a consequence, a written alternatively tacit agreement was concluded between the parties on 23th [sic] of November 2015 at East London, Plaintiff acting personally and First Defendant represented by Dr Mbiji P Mahlangu (hereinafter "the agreement"). A copy of the admission letter is annexed hereto as "RP1".

… The material terms of the agreement were that the First Defendant will:

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-

provide Plaintiff with tuition and supervision of a professional standard in the programme of a nursing study and the courses in which he is enrolled for the duration of the nursing study (four years)

-

ensure compliance with the legal requirements for and legislation applicable in the nursing studies including but not limited to registration of Plaintiff as a learner nurse with the Second Defendant

-

require and make arrangements for Plaintiff to attend and/or participate in clinical practicals and/or allocate him in health institutions for those clinical practicals.

Plaintiff, who was not in possession of a study permit at the time of his admission at Fort Hare, was advised by the agents of the First Defendant that a grace period was given to academic institutions for the waiver of the said requirement.

In line with the terms of the written and/or tacit agreement referred to above Plaintiff commenced with his studies on 23 February 2016 after being cleared and registered by the First Defendant's international office.'

[6]

On the papers before me, no written agreement was annexed to the particulars of claim in compliance with rule 18(6). Nor was the admission letter annexed in compliance with the undertaking in the particulars of claim.

[7]

The plaintiff does however, in the alternative, rely on a tacit agreement. Rule 18(7) says that it shall not be necessary in any pleading to state the circumstances from which an alleged implied term can be inferred. Generally stated, an implied term arises by operation of law, whilst a tacit term is an unexpressed provision of the contract, derived from the common intention of the parties. It has been held however, that the expression 'implied term' is an

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ambiguous one in that it is often used to denote at least two distinct concepts. [3] It is, on the one hand, used to describe the unexpressed provision of a contract which the law imports. On the other hand, it is also used to denote an unexpressed provision of a contract which derives from the common intention of the parties, as inferred by the court from the express terms of the contract and the surrounding circumstances. [4] The latter is sometimes described as a 'tacit' term, which is a description which was approved by the Appellate Division. [5] The Constitutional Court has described a tacit term as follows [6] :

'A tacit term is an unspoken provision on the contract. It is one to which the parties agree, though without saying so explicitly. The test for inferring a tacit term is whether the parties, if asked whether their agreement contained the term, would immediately say, "Yes, of course that's what we agreed." Before a court can infer a tacit term, it must be satisfied that there is a necessary implication that they intended to contract on that basis.'

[8]

The sub-rule accordingly relates to a tacit term in an express contract. [7] In other words, whereas a plaintiff who relies upon a tacit term in an express contract need not set out the circumstances from which the alleged term can be inferred, a plaintiff who relies on a tacit contract must set out the facts and circumstances from which the contract is inferred. [8] In any event, where an exception is raised, or, as in the case before me, where an amendment is opposed, the test is whether the tacit term could reasonably be implied. [9]

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[9]

I am not persuaded that the proposed amendment fails to enunciate facts and circumstances from which an alleged contract is inferred. Although I have some difficulty in understanding what the plaintiff means when he refers to "parallel conduct by rivals", I will assume, in his favour, that what he is seeking to convey is that he has pleaded facts and circumstances from which the alleged agreement can be inferred. To that extent I am constrained to agree. The plaintiff has managed to set out facts and circumstances in sufficient detail for the defendants to plead to them. He has also listed three material terms of the agreement, and has alleged as a fact that agents of the first defendant advised him that academic institutions had been given a grace period during which waiver of the requirement of a study permit applied. From the facts and the circumstances described by the plaintiff, it may be inferred that the first defendant was one of those institutions. This however, only really affects paragraphs 6, 7, 8, 9 and 10 of the 26 paragraph amendment notice.

Failure to allege facts to establish jurisdiction:

[10]

Paragraph 3.2 of the proposed amendment alleges that SANC's business premises are situated in the province of Gauteng. The claim against SANC is premised on an alleged breach of what appears to be a delictual duty of care. It is pleaded that the whole cause of action arose within the area of jurisdiction of this court because the agreement (between the plaintiff and UFH) was concluded in East London, the performance of UFH's obligations (allowing plaintiff to study nursing) was in East London, and that the "wrongful and/or negligent conduct complained about was communicated and/or took place in East London".

[11]

SANC contends that the communication of the alleged breach of the duty of care does not confer jurisdiction upon this court. It is argued that this is so

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because the plaintiff has not pleaded any facts to suggest that SANC acted or failed to act at any place other than at its Gauteng address. The proposed amendment will thus be excipiable, according to SANC, because it lacks averments necessary to sustain a cause of action against SANC, in that it does not state any basis upon which this court will have jurisdiction to adjudicate a claim against SANC.

[12]

The plaintiff, in his affidavit under reply, avers that this court has jurisdiction to hear this application as it is "interlocutory to the main proceedings currently pending before this Honourable Court." I can only assume that this non-sensical reply was not drafted with the assistance of a legal practitioner. It does not merit consideration.

[13]

It is also contended on the plaintiff's behalf that SANC is but one of several defendants and s 21(2) of the Superior Courts Act 10 of 2013 accordingly applies. The subsection reads as follows:

'A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to...