R.O.K v Adams and Others

The Plaintiff was a postgraduate student at the University of Cape Town and employed as a Registrar in the Department of Surgery (Plastic Surgery) at Groote Schuur Hospital. She alleges that on or about 3 March 2021, she was raped by the First Defendant, a Professor of Plastic Surgery, in his office at the hospital. She sued the First Defendant for damages and also claimed against the University of Cape Town and the MEC for Health: Western Cape, alleging vicarious liability for the First Defendant's delict and, alternatively, breach of a legal duty by the University and Department to prevent sexual and gender-based violence. The University and the Department raised exceptions against the Particulars of Claim, arguing that they lacked averments to sustain a cause of action, alternatively were vague and embarrassing, because the Plaintiff failed to specify what reasonable and practical steps the defendants could and should have taken to prevent the incident.

• Whether the Plaintiff's Particulars of Claim disclosed a cause of action against the University and the Department based on breach of a legal duty to prevent sexual and gender-based violence.
• Whether the Plaintiff's Particulars of Claim were vague and embarrassing for failing to particularise the specific acts or omissions constituting the alleged breach of duty and negligence.
• Whether the Plaintiff could rely on the defendants' own knowledge of their internal policies and measures to cure the lack of particularity in the pleadings.

1. The Second and Third Defendants' exceptions to the Plaintiff's Particulars of Claim, on the basis that it is vague and embarrassing, were upheld. 2. The Plaintiff's Particulars of Claim were set aside, and the Plaintiff was given leave to file amended Particulars of Claim within one month. 3. The Plaintiff was ordered to pay the Second and Third Defendants' costs on Scale A of rule 67A(3) read with rule 69(7). 4. The costs order in favour of the Second Defendant did not include the costs of two counsel.

A pleading is vague and embarrassing if it fails to set out the material facts relied upon with sufficient particularity to convey to the defendant and the court, with reasonable distinctness, what case the defendant is called upon to meet. A plaintiff cannot rely on the defendant's own knowledge of the facts to cure a lack of particularity in the summons or particulars of claim. In a delictual claim based on an omission or breach of a legal duty, the plaintiff must specify the reasonable and practical steps that the defendant could and should have taken, but failed to take, that would have prevented the harm.

The Court remarked that it was difficult to imagine what reasonable and practical steps the University or the Department could and should have taken to prevent the First Defendant from committing the alleged rape in his office. The Court also noted that the deficiencies were underscored by the fact that the acts the Department allegedly failed to perform were exactly the same as those the University allegedly failed to perform. Regarding costs, the Court observed that the legal complexities of the matter, the seriousness of the incident, and the potential liability of the University were not relevant to setting the scale of costs for the exception, and were more suited to a trial cost order.

This judgment clarifies the pleading requirements in delictual claims based on breach of a legal duty, particularly in the context of sexual and gender-based violence. It confirms that a plaintiff must particularise the specific negligent acts or omissions and cannot rely on broad, generalised obligations or the defendant's own knowledge to sustain a cause of action. It also addresses the procedural requirements for successful exceptions based on vagueness and embarrassment, and confirms the principles governing costs awards on exception, including the circumstances in which costs of two counsel will be allowed.