The plaintiff (excipient) instituted a medical negligence claim against the MEC for Health: Eastern Cape arising from mistreatment of tuberculosis of the spine at Bedford Orthopaedic Hospital, Mthatha, in 2019. The defendant filed a plea and two special pleas: (1) non-compliance with section 3(1) of the Institution of Legal Proceedings Against Certain Organs of the State Act No. 40 of 2002 (notice requirement), and (2) prescription under section 11(d) of the Prescription Act No. 68 of 1969. The plaintiff filed an exception to the defendant's special pleas on the basis that they were vague and embarrassing and/or lacked necessary averments to disclose a defence. The plaintiff did not serve the mandatory notice required by Rule 23(1)(a) affording the defendant an opportunity to remove the cause of complaint before filing the exception. The defendant responded with a Rule 30 and 30A notice identifying the exception as an irregular step.
The exception is dismissed with costs.
Rule 23(1)(a) of the Uniform Rules of Court is peremptory and mandatory. Where a party intends to take an exception that a pleading is vague and embarrassing, that party must, by notice, afford the opposite party an opportunity to remove the cause of complaint before filing the exception. This requirement cannot be avoided by pleading the exception in the alternative (on the grounds that the pleading is vague and embarrassing and/or lacks necessary averments). The two grounds of exception - that a pleading is vague and embarrassing versus that it lacks necessary averments to sustain a defence - serve different legal functions and must be treated differently, with the former requiring strict compliance with the notice provisions of Rule 23(1)(a). An exception taken in violation of this mandatory requirement is irregular and must be dismissed. Special pleas of non-compliance with section 3 of Act 40 of 2002 and prescription are proper matters of law to be raised by way of special plea, and the appropriate response is replication under Rule 25, not exception.
The court observed that the proper course when faced with uncertainty regarding the construction of averments in a plea is to seek clarification either by way of an appropriate request for particulars or a notice in terms of the proviso to Rule 23(1) concerning vague and embarrassing pleadings. The court noted that the exception failed to identify which parts of the plea were allegedly vague and embarrassing and which parts allegedly lacked necessary averments, leaving the defendant guessing, which is a practice that should be discouraged as it encourages litigation by ambush. The court further observed that matters relating to prescription and failure to issue the requisite notice under section 3(1) of Act 40 of 2002 are intertwined with the merits and that a trial court would be in a better position to deal with these issues. The court noted that on receipt of a special plea regarding non-compliance with section 3 of Act 40 of 2002, the plaintiff should replicate and consider applying for condonation rather than taking exception.
This case reinforces the strict and mandatory nature of Rule 23(1)(a) of the Uniform Rules of Court, which requires a party taking an exception on the ground that a pleading is vague and embarrassing to first afford the opposite party an opportunity to remove the cause of complaint. The judgment clarifies that this requirement cannot be circumvented by pleading the exception in the alternative (vague and embarrassing and/or lacking necessary averments). The case emphasizes that the two grounds of exception serve different purposes and must be treated differently procedurally. It also confirms the proper procedural response to special pleas of non-compliance with section 3 of Act 40 of 2002 and prescription - namely replication under Rule 25 rather than exception. The judgment reinforces the principle that pleadings must be clear and concise to enable parties to understand and respond to each other's case, discouraging litigation by ambush.
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