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IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

 

                                                                                  

REPORTABLE

                                                                                                       CASE NO: 1463/2018

 

In the matter between:

 

YVONNE GARTNER                                                                                            First Plaintiff

TARAH LEIGH SWANEPOEL                                                                            Second Plaintiff

 and

THE UNIVERSITY OF CAPE TOWN                                                                First Defendant

THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA                                                                          Second Defendant

THE PROFESSIONAL BOARD

FOR PSYCHOLOGY                                                                                            Third Defendant

Bench: P.A.L.Gamble, J

 

Heard: 23 November 2020

 

Delivered: 28 May 2021

 

This judgment was handed down electronically by circulation to the parties' representatives via email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 28 May 2021

 

  JUDGMENT

 

GAMBLE, J:            

INTRODUCTION

1.                            During October 2011, the first defendant (“UCT”) advertised the Master of Arts in Neuropsychology (“MA in Neuropsychology”) as a postgraduate degree (“the degree”) and course for study in its 2012 academic year. The first and second plaintiffs (“the plaintiffs”), relying on UCT’s representation as aforesaid, applied for admission to the degree and in December 2011 they were each offered a placement in the 2012 intake.

2.                            The plaintiffs commenced their studies for the two-year degree in February 2012 on the understanding that the degree offered by UCT comprised 5 courses and a minor dissertation. Thereafter, the plaintiffs understood that they would be admitted to a one-year paid neuropsychology internship registered with the second defendant (“the HPCSA”), alternatively the third defendant (“the Board”, also collectively referred to herein as “the authorities”).

3.                            After completing the degree, the minor dissertation and the internship, the plaintiffs and UCT intended that the plaintiffs would be entitled to apply to the HPCSA, alternatively the Board, for registration as professional neuropsychologists, would be registered and accredited as such by the HPCSA and entitled to practice as such for their own respective accounts.

4.                            In November 2013, and prior to the commencement of their intended internships, UCT informed the plaintiffs that –

[4.1.]  the HPCSA, alternatively the Board, had not created and/or registered the professional category of neuropsychology and that no formal internship category for neuropsychologists had been established;

[4.2.]  the HPCSA, alternatively the Board, would register them as interns in general psychology on an unpaid basis during 2014 at the Groote Schuur and Red Cross Children’s Hospitals in Cape Town;

[4.3.] such internships would be accepted by the HPCSA as being lawful and in accordance with its regulations and specifications, and

[4.4.]  they would be entitled to enter the profession of neuropsychology upon the completion of the aforesaid unpaid internship on condition that such internship was completed in 2014.

5.                            The plaintiffs were thereafter registered by the HPCSA, alternatively the Board, as intern psychologists for the 2014 year and they each paid the requisite registration fee.

6.                            Having completed the degree and their unpaid internships by the end of 2014, the plaintiffs contended that they were entitled to be registered by the authorities as neuropsychologists and to thereafter practice as such for their own accounts. In the circumstances, they paid the requisite registration fee and during February – March 2015, UCT submitted their applications for registration as neuropsychologists to the authorities.

7.                             Notwithstanding their qualifications, the completion of the prescribed internships and the payment of the requisite fees, the plaintiffs were not registered by the authorities as neuropsychologists and they were unable to conduct professional practices as such or earn an income therefrom.

ACTION PROCEEDINGS

8.                            The aforesaid situation obtained until 31 January 2018 when the plaintiffs issued summons out of this court claiming damages for loss of income from UCT, the HPCSA and the Board jointly and severally. The claim against UCT was founded in contract while the claims against the HPCSA and the Board were delictual in nature, with the plaintiffs alleging that each entity owed them a duty of care and that as a consequence of the breach of such duty they had suffered damages in the form of lost income. The first plaintiff’s claim was calculated to be in excess of R41m while that of the second plaintiff was said to exceed R125m.

9.                            On 21 May 2018, UCT gave notice in terms of Rule 23(1) alleging that the plaintiffs’ particulars of claim were vague and embarrassing as against it and, further, that they lacked averments necessary to sustain a cause of action. The plaintiffs took up the invitation in that notice to remedy the causes of complaint raised by UCT and in June 2019 they gave notice to amend their particulars of claim, which amendment was effected in August 2019.

10.                         In October 2019, UCT filed its plea to the amended particulars of claim in which it alleged, inter alia, that it had taken the following steps to address the plaintiffs’ situation.

“10.2.1 without any contractual or legal obligation or duty to do so, inter alia First Defendant approached the High Court of South Africa, (Gauteng Provincial Division, Pretoria) for legal relief against inter alia Second and Third Defendants under case number 34714/2017.

10.2.2 the relief sought by inter alia First Defendant in order to address the refusal and/or neglect referred to in paragraph 10.1 supra included that its graduates in the Master of Arts in Neuropsychology degrees, be registered as Neuropsychologists and that they may lawfully perform and practice as Neuropsychologists;

10.2.3 an interim order allowing the First Defendant’s aforementioned graduates to lawfully practice as Neuropsychologists was obtained on December 2017;

10.2.4. a final order allowing First Defendant’s graduates inclusive of the First and Second Plaintiffs to lawfully practice as Neuropsychologists was granted on 21 August 2018;

10.2.5. First and Second Plaintiffs were at all relevant times duly informed of the endeavour to obtain the aforementioned orders also on their behalf and in their favour;

10.2.6 First and Second Plaintiffs were at all relevant times duly informed of the fact that both the interim and the final orders, copies of which are appended hereto… were obtained and that same allow them to lawfully practice as Neuropsychologists from 8 December 2017.”

11.                         The allegations by UCT are somewhat confusing in the overall context of the matter. It is said by UCT that the plaintiffs were duly registered as neuropsychologists by 21 August 2018 at the latest. This implies that the plaintiffs are now permitted to practice as such and the extent of their damages (if any) is potentially limited. But, the pleadings filed of record do not reflect that the plaintiffs replicated to UCT’s plea and it must thus be accepted for present purposes that the plaintiffs deny the allegations made by UCT in subparagraphs 10.2.1 – 10.2.6. of its plea. This Court must thus assume that the plaintiffs are still not entitled to practice as neuropsychologists and further that they have not been admitted to practice as such by the authorities. The consequence thereof, it is said, has occasioned the plaintiffs damage.

12.                         For present purposes, it is not necessary to further consider the legal basis for the plaintiffs’ claims against UCT or the latter’s response thereto. This judgment deals only with the plaintiffs’ alternative claims against the HPCSA and the Board and the authorities’ preliminary response thereto by way of exception.

THE ALTERNATIVE CLAIM AGAINST THE HPCSA AND THE BOARD

13.                         In their particulars of claim, the plaintiffs make the following allegations in their alternative claim (“Claim B”), against the second and third defendants.

“1.                    The definitions contained in Claim ‘A’ are incorporated herein.

  2.                   The HPCSA is a statutory body created in terms of the Health Professions Act, 56 of 1974 (‘the Act’).

  3.                   The Act defines the objects and functions of the HPCSA, which include inter alia:-

          3.1.        Coordinating the activities of the professional boards established in terms of the Act;

           3.2.       Determining strategic policy in accordance with national health policy as determined by the Minister of Health (‘Minister’), and to make decisions in terms thereof, with regard to the professional boards and the health professions for the matters delineated therein; and

           3.3.       Subject to legislation regulating health care providers and consistency with national policy determined by the Minister, controlling and exercising authority in respect of all matters affecting the education and training of persons set out in the Act.

  4.                   The Board is established in terms of the Act.

  5.                   The Act defines the objects and functions of the Board, which include inter alia:-

                        5.1.      Exercising control over training;

                        5.2.      Determining registration requirements for practising any health profession; and

                        5.3.      Keeping and maintaining registers in respect of persons registered in terms of the Act, including determining the registration category in which persons registered in terms of this Act hold registration and the name of their speciality, sub speciality, professional category or categories.

   6.                  On or about March 2011, UCT submitted its application to the Board for the accreditation of its MA in Neuropsychology.

  7.                   On or about May 2011, UCT received notification from the Board that its MA in Neuropsychology had been approved by the education committee subject to:-

                        7.1       The final promulgation of regulations relating to the scope of practice for psychologists by the Minister, which will enable the Board to establish the register for the category of neuropsychology.

     8.                On or about 7 July 2011, UCT obtained accreditation for the degrees from the South African Qualifications Authority and the Council on Higher Education.

      9.               On 2 September 2011 the Minister, after consultation with the HPCSA, promulgated regulations recognising and regulating the professional category of Neuropsychology (‘the Regulations’).

     10.              Consequently, the condition to which the approval of the UCT MA in Neuropsychology was subject, was fulfilled on 2 September 2011 when the Regulations and the scope of practice [of] psychology, which now included the scope of practice for neuropsychology, was promulgated under General Notice R.704 in Government Gazette No. 34581.

     11.              On or about January 2012, UCT commenced teaching its MA in Neuropsychology.

     12.              A consequence of the promulgation of the Regulations was that no person was entitled to practice as a neuropsychologist unless he/she was registered by the HPCSA to do so.

      13.             A reasonable person in the position of the HPCSA and/or the Board would have foreseen that if it did not act with due skill and care, and without negligence in relation to its functions and duties, the Plaintiffs may suffer loss as a consequence thereof.

     14.              The HPCSA and/or the Board were accordingly under a legal duty of care towards the Plaintiff (sic) to fulfil their functions with due professional skill and care and without negligence, including the duty to ensure that the Plaintiffs could register as neuropsychologists upon completion of the MA in Neuropsychology degree, and could practice as such.

     15.              By 2015, the Plaintiffs had finished the MA in Neuropsychology degree and were ready for professional registration.

     16.              However, the Board had created no administrative procedures to provide for the Plaintiffs’ registration and refused to register them.

     17.              The HPCSA and/or the Board and in breach of its duty of care owed to the Plaintiffs, were negligent in one or more of the following respects:

                        17.1     Failing to act lawfully by obstructing alternatively delaying the proper regulation of the profession of neuropsychology in South Africa;

                        17.2     Failing to consider and process applications submitted to them by the Plaintiffs for the registration:-

                                    17.2.1. in the professional category of intern neuropsychologist;

                                    17.2.2. in the professional category of neuropsychologist.

                        17.3.    Failing to set a professional entrance examination for the professional category of neuropsychology;      

                        17.4.    Failing to provide for the registration of graduates of UCT’s MA in neuropsychology programme as neuropsychologists;

                        17.5     Failing to protect and uphold the Plaintiff’s (sic) rights to dignity, to freedom of trade, occupation and profession, and to education as envisaged in the Constitution; and

                        17.6     Otherwise failing to do all things necessary to permit the Plaintiffs to register within the professional category of neuropsychology and to perform acts falling within the scope of practice of the professional category of neuropsychology.

     18.              Despite the duty of care placed upon the HPCSA and/or the Board, the HPCSA and/or the Board negligently failed and/or deliberately refused to perform their duties and functions as set out in the Act with the result that the Plaintiffs have not been registered by the HPCSA as being entitled to practice as Neuropsychologists.

      19.             As a result of the aforementioned unlawful conduct the First and Second Plaintiffs have suffered damages calculated as follows…..”

14.                         The HPCSA and the Board took up the cudgels in July 2020 and, after jointly filing a similar notice under Rule 23(1), filed an exception comprising five grounds to the amended particulars of claim. It is that exception which forms the subject of this judgment.

15.                         The exception was argued virtually on 23 November 2020. The excipients (to whom I shall continue to refer as “the HPCSA” and “the Board” and collectively as “the authorities”) were represented by Mr.N.H.Maenetje SC and the respondents (to whom I shall continue to refer as “the plaintiffs”) were represented by Mr.R.van Rooyen SC and Mr.G.Solik. The Court is indebted to counsel for their comprehensive heads of argument and their detailed addresses, as also their post-hearing notes, which have facilitated the preparation of this judgment.

AN OVERVIEW OF THE CLAIMS AGAINST THE HPCSA AND THE BOARD

16.                         In summary, the plaintiffs’ claims against the authorities embrace the following allegations.

[16.1.]                 The authorities failed to act with due skill and care and without negligence in relation to their statutory functions and duties vis-à-vis the plaintiffs as aspirant neuropsychologists.

[16.2.]                 A reasonable person in the position of the authorities would have foreseen that this failure would cause the plaintiffs loss. In the circumstances, those entities were under a legal duty to the plaintiffs to fulfil their statutory functions with due professional skill and care and without negligence.

[16.3.]                 The said legal duty required the authorities to ensure that the plaintiffs could register as neuropsychologists upon completion of their respective Masters degrees and that they could then practice as such.

[16.4.]                 The authorities breached their respective legal duties to the plaintiffs.

[16.5.]                 The authorities created no administrative procedures to provide for the plaintiffs’ registration as neuropsychologists and refused to register them.

[16.6.]                 Consequently, the plaintiffs were not registered under the Health Professions Act, 56 of 1974 (“the Act”), could not practice as neuropsychologists and suffered damages in the form of pure economic loss.

THE EXCEPTION

17.                         It is necessary to recite the exception in its entirety.

“Having afforded the plaintiffs the opportunity to remove causes of complaint as required by Rule 23 in respect of the first to fourth grounds of exception, the second and third defendants hereby except to the plaintiff’s particulars of claim on the grounds set out below. References to paragraph numbers are to paragraph numbers in the particulars of claim.

First ground of exception

1.    The plaintiffs allege in paragraphs 2 and 5 that the HPCSA and the Board are statutory bodies established in terms of the Health Professions Act, 56 of 1974 (the Act). This means that the HPCSA and the Board can only exercise the powers conferred, and perform the functions imposed, upon them by the Act.

2.    The Act is defined to include the regulations made under the Act.

3.    In paragraphs 9 to 16, the plaintiffs allege that once the Minister of Health (the Minister) promulgated the Regulations defining the scope of the profession of psychology, including the professional category of neuropsychology (the Regulations), the Board ought to have registered them or created administrative procedures to provide for their registration and, instead, failed to register them.

4.    The Regulations, being GNR.993 of September 2008, amended by General Notice R.704 in Government Gazette No. 34581 pleaded in paragraph 10, state clearly in regulation 5 that ‘any person who wishes to perform any of the acts prescribed in regulation 2 [being acts falling within the scope of the profession of psychology as amplified to include the profession of neuropsychology] shall apply in the prescribed manner to the board for registration as a psychologist and submit proof of having complied with the prescribed requirements for such registration.’

5.    The Act defines prescribed to mean prescribed by regulation.

6.    The plaintiffs have failed to plead that:

6.1       the Minister prescribed the MA in Neuropsychology pleaded in paragraph 7, and upon which they rely for their claim, as a requirement for registration in the professional category of neuropsychology; and

            6.2       if the minister had prescribed the requirements for registration referred to in regulation 5, that the MA in Neuropsychology pleaded in paragraph 7 met the prescribed requirements for registration that they sought.

            7.         In the circumstances, the particulars of claim are vague and embarrassing or      lack averments necessary to sustain a cause of action inter alia because:

            7.1       the HPCSA and the Board could not register the plaintiffs other than in accordance with the provisions of regulation 5 referred to above; and

            7.2       as statutory bodies, the HPCSA and the Board could not exercise any powers not conferred upon them or perform any functions not imposed upon them by the Act read with the Regulations.

Second ground of exception

8.    In paragraph 16, the plaintiffs allege that the Board had created no administrative procedures to provide for the plaintiffs’ registration and refused to register them.

9.    The plaintiffs have failed to plead:

9.1       the source or basis of the legal obligation for the Board to create the administrative procedures to register the plaintiffs in the absence of allegations referred to in paragraph 5 above; and

9.2       the source or basis of the legal obligation for the Board to register them in the absence of allegations referred to in paragraph 5 above.

     10.              In the circumstances the particulars of claim are vague and embarrassing and/or lack averments necessary to sustain a cause of action.

Third ground of exception

11.  The plaintiffs plead a breach of a duty of care and negligence in paragraph 17.

12.  The plaintiffs further plead a breach of a duty of care in paragraph 18.

13.  In the absence of allegations referred to in paragraph 5 above, as well as alleged facts to establish a duty of care pleaded in paragraph 17, the particulars of claim lack averments necessary to sustain a cause of action and/or are vague and embarrassing.

Fourth ground of exception

14.  In paragraph 18, the plaintiffs allege that the HPCSA and/or the Board negligently failed and/or deliberately refused to perform their duties and functions set out in the Act with the result that the plaintiffs have not been registered by the HPCSA as being entitled to practice as neuropsychologists.

15.  The plaintiffs have failed to plead:

15.1     the specific duties and functions of the HPCSA which it is alleged it negligently failed and/or deliberately refused to perform, as well as the provisions of the Act and/or the Regulations in creating such duties and functions; and

15.2     the specific duties and functions of the Board which it is alleged it negligently failed and/or deliberately refused to perform and the provisions of the Act and/or the Regulations creating such duties and functions.

16.       In the circumstances, the particulars of claim are vague and embarrassing and/or lack averments necessary to sustain a cause of action.

Fifth ground of exception

17.  The essence of the plaintiffs’ claim against the second and third defendants, being statutory bodies, is that the second and third defendants caused them patrimonial loss by the alleged negligent exercise of statutory powers or performance of statutory duties.

18.  The particulars of claim fail to disclose a cause of action against the second and third defendants because:

18.1     even if the allegations of fact in the particulars of claim made against the second and third defendants are assumed to be true, they are not susceptible in law of sustaining a finding that the second and third defendants were under a legal duty, by exercising care, to avoid loss being caused to the plaintiffs, failing which the plaintiffs would have a damages claim against the second and third defendants; and/or

18.2     the law confers an immunity from claims for negligence in respect of decisions and/or actions taken, or not taken, by the second and third defendants in the exercise of their statutory powers or performance of statutory duties; and/or

18.3     the second and third defendants cannot be held liable for the alleged negligent performance of their statutory duties in the absence of mala fides, which the plaintiffs do not allege.

19.       In the circumstances, the second and third defendants are prejudiced in pleading to the particulars of claim.”

 

THE APPROACH TO EXCEPTIONS

18.                          The approach to the determination of an exception is well established and the relevant principles were conveniently summarized as follows by the Constitutional Court in Pretorius[1].

“In deciding an exception a court must accept all allegations of fact made in the particulars of claim as true; may not have regard to any other extraneous facts or documents; and may uphold the exception to the pleading only when the excipient has satisfied the court that the cause of action or conclusion of law in the pleading cannot be supported on every interpretation that can be put on the facts. The purpose of an exception is to protect litigants against claims that are bad in law or against an embarrassment which is so serious as to merit the costs even of an exception. It is a useful procedural tool to weed out bad claims at an early stage, but an overly-technical approach must be avoided.”

19.                          In order to succeed with their exception, the authorities must persuade the Court that upon every interpretation which the plaintiffs’ claims against them can reasonably bear, no cause of action is disclosed.[2] Furthermore, they must show that the claims are (and not may be) bad in law.[3] Lastly, unless the authorities can satisfy the Court that there is a real point of law or a real embarrassment, the exception should be dismissed.[4]

20.                         In Ras van Heerden J considered the authorities upon which a plea of exception was based in detail and noted the following by way of summary at 541I:

“The approach is neatly summed up by one writer in the following manner:  'The court should not look at a pleading with a magnifying glass of too high power. It is the duty of the court when an exception is taken to a pleading first to see if there is a point of law to be decided which will dispose of the case in whole or in part. If there is not, then it must see if there is an embarrassment which is real as a result of the faults in the pleading to which exception is taken. Unless the excipient can satisfy the court that there is such a point of law or such real embarrassment the exception should be dismissed.’ (See Joubert (ed) Law of South Africa vol 3 part 1 (first re-issue by Harms and Van der Walt, 1997) at para 186.)”

21.                         Mr. Maenetje commenced his argument with the fifth ground of the exception (which is linked to the third ground) and, given that this was the focus of the addresses by both counsel, I shall follow suit.

THE FIFTH GROUND OF EXCEPTION

Procedural

22.                         Mr van Rooyen raised an initial challenge to the authorities’ entitlement to rely on this ground of exception on the basis that it was time-barred. It is common cause that the authorities’ notice in terms of Rule 23(1), which served as a precursor to the noting of their exception, did not include an intention to rely on the fifth ground of exception. Mr van Rooyen argued that, in the circumstances, it was not open to the authorities to rely on that ground when they duly noted the exception after having afforded the plaintiffs an opportunity to cure their other causes of complaint.

23.                         I agree with Mr Maenetje that there is no merit in this point.  The defendants’ notice in terms of Rule 23(1) is not a pleading but rather an obligatory notice which they are required to give to the plaintiffs that they intend raising an exception to the particulars of claim on the grounds that same contain allegations which the defendants regard as vague and embarrassing. The purpose of such notice was to afford the plaintiffs an opportunity to reflect on their particulars of claim, consider the objection thereto and, if so advised, to effect an amendment thereto.

24.                         Once that notice had been given and the plaintiffs had either amended (or not remedied) the pleading under attack, the defendants were entitled to file an exception thereto within 10 court days of receipt of the response thereto (i.e. the amendment) or, if there was no amendment, within 15 court days of the date when such a response was due. However, where a defendant intends excepting on the basis that the particulars of claim do not disclose a cause of action it is not required to give the plaintiff notice of that intention and may simply go ahead and file its exception which then constitutes the next pleading in the suit.

25.                         There is no issue that the exception based on the vague and embarrassing objections was served timeously after the notice in terms of Rule 23(1) had been given. The point taken by Mr van Rooyen was that the exception embodied in the fifth ground (which did not require a notice in terms of Rule 23(1)) should have been filed separately and at a time when the notice in terms of Rule 23(1) was still the subject of a possible response and/or amendment by the plaintiffs. This would, in the circumstances of this case, have led to two separate exceptions being filed – an undesirable, if not messy, procedure in my view, which would have caused inconvenience to the court in having to page back and forth between two sets of pleadings. In reality, the objection places form over substance.

26.                         The notice of exception is a comprehensive pleading embodying the totality of the authorities’ causes of complaint against the legal integrity of the plaintiffs’ claims. I am of the view that it was open to the defendants in this case, simply as a matter of convenience to the Court, to include in their next pleading (the exception, which was filed timeously) grounds in respect whereof no notice to cure was required. In the result, I am not inclined to find that the fifth ground of exception is time barred.

Merits

27.                         Turning to the merits of the fifth ground of exception, the point raises a legal issue which has been the subject of considerable litigation in the last decade or two – damages for pure economic loss occasioned to a plaintiff by a defendant whose causal negligence has allegedly resulted in such loss.[5]

28.                         The applicable principles were usefully summarized by Harms JA in Telematrix.

“[1] At stake is the liability for damages of the respondent, the Advertising Standards Authority of SA (the ASA) to an advertiser who suffered a loss because of an incorrect decision by one of its organs. The ASA filed an exception against the particulars of claim of the plaintiff (the present appellant) in which the ASA pertinently raised the question whether such a negligent decision, which prohibited the publication of two advertisements, and which gave rise to pure economic loss can be ‘wrongful’ in the delictual sense. ‘Pure economic loss’ in this context connotes loss that does not arise directly from damage to the plaintiff’s person or property but rather in consequence of the negligent act itself, such as a loss of profit, being put to extra expenses, or the diminution in the value of property…

[12] The first principle of the law of delict…is that everyone has to bear the loss he or she suffers….Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss.  But the fact that an act is negligent does not make it wrongful. To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of negligence into our law, thereby distorting it.

[13] When dealing with the negligent causation of pure economic loss it is well to remember that the act or omission is not prima facie wrongful (‘unlawful’ is the synonym and is less of a euphemism) and that more is needed. Policy considerations must dictate that the plaintiff should be entitled to be recompensed by the defendant for the loss suffered… In other words, conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant. It is then that it can be said that the legal convictions of society regard the conduct as wrongful…” (Internal references omitted)

The wrong decision taken by the ASA in Telematrix in adjudicating a complaint regarding misleading advertising was held not to afford the complainant a cause of action in respect of damages for pure economic loss.

29.                         In Telematrix, Harms JA examined the law from the angle of the quasi-judicial decision-making function on the part of the ASA, and in particular, whether that function afforded a basis to found a claim for damages for pure economic loss. To that extent, that matter is on a different footing to the present. That notwithstanding, Harms JA was guided by the earlier decision of that Court in Knop.

“[14] To formulate the issue in terms of a ‘duty of care’ may lead one astray. It cannot be doubted that the ASA owed a duty towards the plaintiff to consider and arrive at a decision without negligence, in a manner that is fair, justifiable and reasonable, and within the ambit of the complaint, but it does not follow that a failure to have done so created an obligation to compensate. To illustrate: there is obviously a duty - even a legal duty - on a judicial officer to adjudicate cases correctly and not to err negligently. That does not mean that a judicial officer who fails in the duty, because of negligence, acted wrongfully. Put in direct terms: can it be unlawful, in the sense that the wronged party is entitled to monetary compensation, for an incorrect judgment given negligently by a judicial officer, whether in exercising a discretion or  making a value judgment, assessing the facts or in finding, interpreting or applying the appropriate legal principle? Public or legal policy considerations require that there should be no liability, ie, that the potential defendant should be afforded immunity against a damages claim, even from third parties affected by the judgment. As Botha JA said [in Knop at 33D-E] in somewhat similar circumstances:

‘That is not to say that the local authority need not exercise due care in dealing with applications; of course it must, but the point is that it would be contrary to the objective criterion of reasonableness to hold the local authority liable for damages if it should turn out that it acted negligently in refusing an application, when the applicant has a convenient remedy at hand to obtain the approval he is seeking. To allow an action for damages in these circumstances would, I am convinced, offend the legal convictions of the community.’ “

30.                         As Mr Maenetje demonstrated in argument, the decision of Botha JA in Knop provides a useful basis for consideration of the present exceptions to the plaintiffs’ claims against the authorities. That matter involved a claim by a property owner against a local authority for damages allegedly occasioned to him when it granted his application for subdivision of land for purposes of building a cluster-housing complex and later withdrew such approval on the basis that the original permission had been granted in error. The property owner sought to recover damages when the project effectively stood still for almost a year and he was required to carry the holding costs of the development during that period. The damages claimed were clearly for pure economic loss.

31.                         In the course of his judgment, Botha JA considered a line of cases in the law of delict going back almost a century and stressed the importance of the plaintiff’s obligation, in bringing such claims, to establish wrongfulness on the part of the local authority.

“In the present case, if it is assumed that the Council was negligent in exercising its statutory functions, the question whether it is liable in damages to the plaintiff must depend on the answer to the question whether its conduct was wrongful. In considering this question the nature of the Council’s functions will certainly require close scrutiny. But in view of what has been said above, two observations must be added. The first is that the nature of the functions is but one of the circumstances calling for consideration; as always, to determine the issue of wrongfulness, all the circumstances of the case fall to be considered. The second is that, to determine the issue of wrongfulness, there is no point in straining to categorize the functions as either quasi-judicial or purely administrative.”

In the instant case, there is no dispute that the functions attributed to the authorities (or more properly, the functions which they allegedly failed to discharge) were purely administrative.

32.                         It will be noted that the allegations made by the plaintiffs against the authorities clearly aver (in paragraphs 17 and 18 of Claim B) that the authorities were negligent. There is however no express allegation in paragraph 18 in particular (in which the conclusions of law are summarised) that the conduct of the authorities was, in addition, wrongful. To that extent, the pleading is prima facie excipiable in that it does not meet the allegations necessary to establish a delictual claim for pure economic loss.

33.                         It will be noted further, however, that in para 14 of Claim B, the plaintiffs allege, inter alia, that the authorities were subject to a legal duty of care towards them “to fulfil their functions with due professional skill and care and without negligence”. It is further alleged that such duty included the obligation to ensure that the plaintiffs could register as neuropsychologists and practice that profession. This was said to include the duty to ensure that there was an administrative procedure in place in terms whereof an applicant could make application to be registered as a neuropsychologist. It would appear that the plaintiffs thus contend that the authorities’ breach of the duty of care constitutes the element of wrongfulness that they must establish if they are to succeed with a claim in delict.

DUTY OF CARE

34.                         There can be little debate that statutory bodies such as the HPCSA and its subsidiary, the Professional Board for Psychology, are duty bound to ensure that persons who wish to enter a professional calling falling within the ambit of the Act, (such as neuropsychology) owe such persons a duty to receive, entertain and process their applications for registration properly and without negligence. After all, the authorities act as gate-keepers to, inter alia, the psychology profession in general and that of neuropsychology in particular, and they cannot stand in the way of any person wishing to exercise her constitutional right to enter a profession of her choice[6], provided that she meets the statutory requirements for admission to such profession.

35.                         In Olitzki Property, Cameron JA examined the nature and extent of a duty of care in the context of a Provincial Government tender case in which an unsuccessful bidder sought to claim damages for loss of profit – manifestly another instance of pure economic loss. The plaintiff’s primary claim was founded upon s187 of the Constitution which prescribes the applicable criteria for the lawful administration of Government tenders.

“[10] The question is whether the defendants’ (assumed) unreasonable, irregular and arbitrary conduct in relation to the tender breached these provisions so as to constitute a civil wrong actionable at the plaintiff’s instance. In other words, did… [s187]… impose a legal duty on the defendants to refrain from causing the plaintiff the kind of loss it claims it suffered?

[11]  It is well established that in general terms the question whether there is a legal duty to prevent loss depends on a value judgment by the court as to whether the plaintiff’s invaded interest is worthy of protection against interference by culpable conduct of the kind perpetrated by the defendant. The imposition of delictual liability… thus requires the court to assess not broad or even abstract questions of responsibility, but the defendant’s liability for conduct ‘described in categories fixed by the law.’ This process involves the court applying a general criterion of reasonableness, based on considerations of morality and policy, and taking into account its assessment of the legal convictions of the community and now also taking into account the norms, values and principles contained in the Constitution. Overall, the existence of a legal duty to prevent loss ‘is a conclusion of law depending on a consideration of the circumstances of the case’.

[12] Where the legal duty the plaintiff invokes derives from breach of a statutory provision, the jurisprudence of this Court has developed a supple test. The focal question remains one of statutory interpretation, since the statute may on a proper construction by implication itself confer a right of action, or alternatively provide the basis for inferring that a legal duty exists at common law. The process in either case requires a consideration of the statute as a whole, its objects and provisions, the circumstances in which it was enacted, and the kind of mischief it was designed to prevent. But where a common-law duty is at issue, the answer now depends less on the application of formulaic approaches to statutory construction than on a broad assessment by the court whether it is ‘just and equitable’ that a civil claim for damages should be accorded. ‘The conduct is wrongful, not because of the breach of the statutory duty per se, but because it is reasonable in the circumstances to compensate the plaintiff for the infringement of his legal right.’ The determination of reasonableness here in turn depends on whether affording the plaintiff a remedy is congruent with the court’s appreciation of the sense of justice of the community. This appreciation must unavoidably include the application of broad considerations of public policy determined also in the light of the Constitution and the impact upon them that the ground or refusal of the remedy the plaintiff seeks will entail.” (Internal references omitted)

36.                         The Constitutional Court considered the question of a delictual claim for pure economic loss in Steenkamp. The matter involved a claim by a party which was initially successful in procuring a provincial tender but whose tender allocation was subsequently overturned by the High Court on review. The disgruntled party sought to recover damages for its out-of-pocket expenses incurred pursuant to the original successful allocation of the tender but was denied relief by both the High Court and the Supreme Court of Appeal.

37.                         Writing for the majority in a further appeal to the Constitutional Court, Moseneke DCJ upheld the finding of the Supreme Court of Appeal. In so doing, the Learned Deputy Chief Justice considered the effect of a breach of a statutory duty to afford administrative justice under the Constitution, 1996[7], in circumstances where both parties to the litigation accepted that the tender board in question, while acting in good faith, had allocated the tender in an administratively unfair manner.

“[37] However, a concession that the tender board acted inconsistently with the tenets of administrative justice is neither decisive of the existence of a duty of care nor is it of any avail to the applicant’s case. In our constitutional dispensation every failure of administrative justice amounts to a breach of a constitutional duty. But the breach is not an equivalent of unlawfulness in a delictual liability sense. Therefore, an administrative act which constitutes a breach of a statutory duty is not for that reason alone wrongful. Unlike in other jurisdictions, this does not mean that the government enjoys delictual immunity when performing its functions, but a negligent statutory breach and resultant loss are not always enough to impute delictual liability. Policy considerations of fairness and reasonableness have to be taken into account when imposing a duty of care and ultimately liability to make good the harm suffered by a claimant.

[38] Confronted with a similar enquiry in the context of the exercise of a statutory power by a local authority, Botha JA in Knop…sharpens the analysis as follows:

‘In my view this argument does not advance the case for the plaintiff, because it loses sight altogether of the purpose of the enquiry upon which we are engaged. The enquiry into the intention of the Legislature has as its object to determine whether a local authority owes a legal duty to an applicant to exercise care in exercising the powers conferred on it by s 92 [of the Town-planning and Townships Ordinance, 15 of 1986] so as to avoid causing loss to the applicant. The existence of such a duty will entail a right in the applicant to sue for damages upon its breach. The fundamental question, therefore, is this: did the Legislature intend that an applicant should have a claim for damages in respect of loss caused by the negligence of the local authority?’ “ (Internal references omitted)

38.                         After considering various other authorities (including Olitzki Property which was cited with approval), Moseneke DCJ summarised the approach to establishing wrongfulness in delictual claims for damages for pure economic loss as follows.

“[41] Therefore, shortly stated, the enquiry into wrongfulness is an after-the-fact, objective assessment of whether conduct which may not be prima facie wrongful should be regarded as attracting legal sanction. In Knop … the test for wrongfulness was said to involve objective reasonableness and whether the boni mores required that ‘the conduct be regarded as wrongful’. The boni mores is a value judgment that embraces all the relevant facts, the sense of justice of the community and considerations of legal policy, both of which now derive from the values of the Constitution.

[42]  Our Courts – Faircape, Knop, Du Plessis[8] and Duivenboden[9] - and courts in other common-law jurisdictions readily recognize that factors that go to wrongfulness would include whether the operative statute anticipates, directly or by inference, compensation of damages for the aggrieved party; whether there are alternative remedies such as an interdict, review or appeal; whether the object of the statutory scheme is mainly to protect individuals or advance public good; whether the statutory power conferred grants the public functionary a discretion in decision-making; whether an imposition of liability for damages is likely to have a ‘chilling effect’ on the performance of administrative or statutory function; whether the party bearing the loss is the author of its misfortune; whether the harm that ensued was foreseeable. It should be kept in mind that in the determination of wrongfulness foreseeability of harm, although ordinarily a standard for negligence, is not irrelevant. The ultimate question is whether on a conspectus of all relevant facts and considerations, public policy and public interest favour holding the conduct unlawful and susceptible to a remedy in damages.” (Internal references otherwise omitted)

AN OVERVIEW OF THE HEALTH PROFESSIONS ACT, 56 OF 1974

39.                         The appellate authorities referred to above – Knop, Olitzki Property and Steenkamp – require this Court to examine the empowering to determine whether the Legislature intended to afford the plaintiffs a right of action in delict in the event of a breach of a statutory duty. In considering whether the alleged conduct of the authorities (or their failure to act) was wrongful in the context of the plaintiffs’ claims, it is thus necessary to have regard to the structure and import of the Act.

40.                         The preamble to the Act records that its purpose is –

“To establish the Health Professions Council of South Africa and professional boards; to provide for control over the education, training and registration for and practising of health professions registered under this Act; and to provide for matters incidental thereto.”

The Act therefore covers a wide field: it regulates the education and training of practitioners in the broader health profession, provides for the registration of such practitioners in their various disciplines and oversees the standards according to which they are obliged to conduct their various professional practices, including the imposition and regulation of professional discipline.

41.                         S15 of the Act permits the HPCSA to establish “a professional board with regard to any health profession in respect of which a register is kept” under the Act. To this end, according to the particulars of claim, the Board was established.

42.                         In terms of s17 of the Act, no person is permitted to practice any health profession unless s/he has been registered as such under the Act. Such person is required, under s17(2), to apply to the registrar to the HPCSA to be registered and to submit the relevant qualification entitling her to registration together with proof of identity and good character. [10]

43.                         If the registrar is satisfied that the applicant for registration has furnished the necessary documentation contemplated under s17(2) and the requisite fee has been paid, a certificate of registration must (“shall”) be issued.[11] On the other hand, if the registrar is not satisfied that the applicant for registration meets the prescribed statutory requirements, such registration must (“shall”) be refused. In such event, and at the request of the applicant for registration, the registrar must (“shall”) refer the application for registration to the relevant professional board.[12]

44.                         Finally, s20 of the Act affords a right of appeal directly to the High Court to any person aggrieved by a decision of, inter alia, the HPCSA or the Board.[13]

THE REGULATIONS DEFINING THE SCOPE OF THE PROFESSION OF PSYCHOLOGY

45.                         In addition to consideration of the empowering statute, the Court must have regard to any applicable subordinate legislation, such as a set of regulations. On 16 September 2008 the Minister of Health issued a set of regulations in GNR.993 contained in Government Gazette No 31433 defining the scope of the profession of psychology. These regulations were amended on 2 September 2011 by Notice R.704 contained in Government Gazette 34581 (“the Regs”).

46.                         Reg 2 of the Regs provides a comprehensive list of the various professional activities which a person wishing to practice as a psychologist will be permitted to conduct. Reg 5 prescribes that any person wishing to perform any of the defined activities and thus practice as a psychologist “shall apply in the prescribed manner to the [Professional Board of Psychology] for registration as a psychologist and submit proof of having complied with the prescribed requirements for such registration.”

47.                         In an annexure to the Regs, the so-called “Scope of Practice” of various sub-disciplines of psychology is described. These include the fields of clinical, educational, industrial, neuro- and forensic psychology. Each sub-discipline in turn has its own criteria for practice and in Item 8 of the said annexure the “Scope of Practice of Neuro-Psychologists” is set out[14]. There is nothing in Item 8 that governs the academic requirements nor the procedure for registration as a neuropsychologist. Further, there is no reference in the Regs to any prescribed form that is required to be completed by an applicant for registration as a neuropsychologist. In the result, it appears that the plaintiffs were required to do no more than comply with the general requirements of s17(2) of the Act in order to be registered under s17(1) thereof.

48.                         Be that as it may, and as already pointed out, in paragraphs 14 to 16 of Claim B the plaintiffs assert that they were refused registration by the Board as neuropsychologists because the Board “had created no administrative procedures to provide for” their registration as such at a time when they were “ready” for such registration. This refusal by the Board to register them, say the plaintiffs, constituted a breach of a legal duty of care which the Board owed them to ensure that they were in a position to register as neuropsychologists upon completion of the degree.

DO THE ACT OR THE REGS CONTEMPLATE A DELICTUAL CLAIM FOR PURE ECONOMIC LOSS?

49.                         There is nothing in the Act which suggests, either directly or indirectly, that the legislature intended to afford to a person affected by the negligence of either the HPCSA or the Board in handling an application for registration and/or failing to register such person as a neuropsychologist, a right of action to recover damages from those authorities for pure economic loss. On the contrary, I am of the view that in affording an applicant for registration a right of appeal, the provisions of s20 suggest that the legislature was alive to the import of potentially wrong decisions by either the HPCSA or the Board and the effect that these might have on, for example, a health care practitioner’s professional standing and income-earning ability or a loss of profits occasioned to a supplier of health care services.

50.                         The Supreme Court of Appeal has held that an appeal contemplated under s 20 of the Act is

“an appeal in the ordinary sense, ie a rehearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether the decision was right or wrong.”[15]

As the two cases cited in footnote 15 demonstrate, such an appeal covers a wide spectrum of decisions under the Act: from a finding in a disciplinary enquiry regarding unprofessional conduct (De Bruin) to the withdrawal of a party’s accreditation to practice as a paramedical support agency (EMS). Similarly, in Netcare Hospitals[16] an appeal was upheld by the High Court in a matter involving the refusal by the HPCSA to grant accreditation to a hospital group to employ paramedical staff in an oncology unit. This broad spectrum of appealable decisions accords with the wide and unqualified interpretation that is to be placed upon the use of the word “any” as employed in s20.[17]

51.                         Mr. Maenetje argued that if the plaintiffs were dissatisfied with the manner in which their applications for registration as neuropsychologists were handled by the authorities, they were afforded an internal remedy of appeal under the Act and, further, a constitutional remedy under the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”) for the breach of their rights to administrative justice. I agree. And, it must immediately be stated that the granting of such a right of appeal is an unusual statutory remedy – there are not many statutes of which I am aware that afford a person affected by an unfavourable administrative decision direct access to the High Court.

52.                         I agree, too, with counsel’s submission that the authorities’ “refusal” to register the applicants as alleged in para 16 would have constituted a “decision” under the Act, which, as in Netcare, was attackable by way of a s20 appeal.  Furthermore, the wide range of remedies available to an applicant for review under PAJA would include the granting of a mandamus, for example, (i) directing the authorities to put in place the necessary procedures to enable a neuropsychologist to apply for registration (if there was in fact no such procedure as alleged in para 16 of Claim B), or (ii) directing the authorities to consider their applications and register the plaintiffs as such (if the refusal to register them as alleged in para 16 was administratively unfair).

53.                         Having regard to the aforesaid allegations made in para 10 of UCT’s plea, it appears that such a step may in fact have been taken by the university. In this regard, the function of our courts in holding administrative functionaries to account to discharge their statutory duties is well established, as was demonstrated in De Saude[18] where the Supreme Court of Appeal was called upon to consider a repeated and chronic failure by the Department of Home Affairs to process applications by foreigners for visas. Navsa JA restated in the broadest terms the duty of the courts to hold a public functionary to account as follows.

“Indeed, courts have a mandate to uphold the Constitution and to see to it in cases properly before them, that administrative functionaries do their duty and fulfil their statutory and constitutional obligations.”

54.                         In my view, either an appeal under s20 of the Act or an application to the High Court under PAJA would be a relatively speedy and less costly remedy than a trial for delictual damages and, if successful, would minimise any loss of income suffered by an aspirant neuropsychologist. To grant a disgruntled applicant for for registration in such circumstances a right of action in delict would, in my considered view, offend the boni mores of society and be considered unreasonable in the circumstances.

55.                         To this I would add the concern that recognition of such a right of action might open the floodgates to a plethora of claims by affected health professionals, and given the wide extent of the health profession – from medical professionals to paramedical practitioners and hospitals and clinics – the consequences of recognising such claims would assuredly have “a chilling effect” in leading to the spawning of further litigation in a professional sector of society already overburdened therewith.

56.                         In the result, and applying the approach mandated in cases such as Olitzki Property and Steenkamp, I conclude that the breach of the duty of care allegedly owed by the authorities to the plaintiffs was not wrongful in the circumstances and does not afford them a cause of action in delict for their alleged pure economic loss in the form of lost income. It follows that the fifth ground of exception should be upheld.

THE THIRD GROUND OF EXCEPTION

57.                         As I have said, the parties addressed this ground of exception in conjunction with the fifth ground, given that both grounds were founded on the authorities’ alleged breach of a duty of care owed to the plaintiffs. In light of the findings made above in relation to the breach of that duty, I am of the view that the third ground of exception, which seeks to attack the same duty of care, is similarly well founded and falls to be upheld.

THE FIRST GROUND OF EXCEPTION

58.                         This ground of exception is based on the averment that the particulars of claim are both vague and embarrassing and lack averments necessary to sustain a cause of action. Noting that the plaintiffs allege in paragraphs 9 to 16 of Claim B that once the Minister of Health (“the Minister”) had promulgated the Regs, the Board ought to have registered them or created appropriate administrative procedures so that they could be registered and that it refused to do so, the authorities contend that the plaintiffs have failed to plead -

(i)            that the Minister prescribed the MA in Neuropsychology as a requirement entitling them to registration as neuro-psychologists, and

(ii)          that they met the “prescribed requirements” for registration referred to in Reg 5 entitling them to registration as such.

59.                         In the circumstances, say the authorities, the particulars are excipiable because –

(i)            their powers to register the plaintiffs as neuropsychologists were sourced exclusively in the provisions of Reg 5; and

(ii)          as statutory bodies, the HPCSA and the Board could not exercise any powers or perform any functions beyond those conferred on them under the Act and the Regs.

60.                         As I understand the plaintiffs’ case, they did not personally apply for registration as neuropsychologists with the Board: no such allegation is made in Claim B. On the contrary, the plaintiffs allege in para 14 of Claim A, that UCT submitted their applications for registration as neuropsychologists with the HPCSA, alternatively the Board, in February or March 2015.

61.                         Further, in neither Claims A nor B do the plaintiffs allege that they were at any time eligible for, or statutorily entitled to, registration. The high water mark of the case against the authorities is the bald allegation made by the plaintiffs in para 15 of Claim B that, upon completion of the degree in 2015 they were “ready for professional registration”. This allegation of readiness is meaningless in the plaintiffs’ claim against the authorities because

(i)            the provisions of Reg 5 do not require a state of readiness on the part of the plaintiffs before they are eligible for registration. Rather, that regulation requires application to be made to the Board “in the prescribed manner” and, further, subject to “proof of having complied with the prescribed requirements for such registration”;

(ii)          the plaintiffs have made no allegation in the claim against the authorities that they met the requirements for registration in terms of Reg 5;

(iii)         furthwr, they make no allegation that their so-called state of readiness came to the attention of the either the HPCSA or the Board; or

(iv)         that either the HPCSA or the Board were statutorily obliged to respond to such state of readiness.

62.                         In the circumstances, I agree that the pleadings are likely to occasion embarrassment to the authorities in formulating their plea thereto and, further, that they do not disclose a cause of action against the authorities on the grounds as alleged. The exception based on the first ground of objection thus falls to be upheld as well.

THE SECOND GROUND OF OBJECTION

63.                         This ground of exception, which overlaps to an extent with the fourth ground, focuses on the plaintiffs’ allegations in para 16 of Claim B that the Board had created no administrative procedures to provide for their registration and refused to register them. The authorities complain that the plaintiffs have failed to set out the source or basis of the legal obligation on the Board to create administrative procedures in order to register applicants such as the plaintiffs as neuropsychologists.

64.                         The authorities submit that it was required of the plaintiffs to make specific allegations regarding the relevant provisions in the Act upon which they relied and which they claimed had been breached by the authorities. The basis for this submission is because it is alleged that ss17 and 18 of the Act place the obligation to keep a register of health care professionals on the registrar appointed by the Minister in terms of s12 of the Act. It was stressed that there was no obligation on the authorities to establish such a register, or keep it up to date. This was claimed to be solely the function of the registrar.

65.                         I agree with Mr van Rooyen that there is no merit in this ground of objection. In the first place, it has been repeatedly stated that the failure by a party to identify a specific provision in a statute which has allegedly been breached is not fatal to a cause of action in the sphere of administrative law.[19] Secondly, the plaintiffs have alleged that the Board was established under the Act and as such, it was saddled with certain statutory duties, including determining the requirements for registration for persons wishing to practice as health care professionals under the Act and the maintenance of registers of people so registered. The plaintiffs go further and allege a failure by the Board to create any administrative procedures to provide for their registration and then a refusal to register them as neuropsychologists.

66.                         If the authorities hold the view that the plaintiffs should rather have formulated their cause of action on this ground and that the registrar is the official who should have been targeted, then they will be entitled to plead this defence. Manifestly, no embarrassment is occasioned to them by the pleading as it stands since they have identified its alleged shortcomings and have pointed to an answer thereto.

67.                         At the end of the day, it must be borne in mind that the plaintiffs have based their cause of action on various provisions in the Act and have pleaded a set of facts which they claim thus entitle them to relief under the Act. It is for the trial court to determine whether such facts do indeed sustain the cause of action. This is not an issue of law capable of final determination by way of exception.

68.                         In the circumstances, I am of the view that the authorities have peered at the pleadings “with a magnifying glass of too high a power”. I consider that there is consequently no merit in the exception based on the second ground of objection.

THE FOURTH GROUND OF EXCEPTION

69.                         In this ground of exception the authorities complain that the plaintiffs’ allegations in para 18 of Claim B that the authorities failure (or refusal) to perform their duties and functions under the Act which resulted in the plaintiffs not being registered as neuropsychologists under the Act are excipiable on the basis that they are vague and embarrassing in that the plaintiffs fail to plead the specific provisions of the Act and/or the Regs upon which they rely.

70.                         For the reasons set out above in relation to the second ground of exception, there is no merit in this challenge to Claim B in the particulars of claim and the exception based on the fourth ground must accordingly fail.

CONCLUSION

71.                         In the result, the exception succeeds in part only. The parties were agreed that in the event that the exception was upheld in any respects, the plaintiffs should be afforded a reasonable opportunity to consider further amending Claim B in their particulars of claim.

72.                         As far as the question of costs is concerned, I consider that it would be just and equitable to award the HPCSA and the Board two thirds of their costs, given that they achieved substantial success in the matter.

ORDER OF COURT

73.                         Accordingly it is ordered that:

A.           The second and third defendants’ exception to Claim B of the plaintiffs’ amended particulars of claim is upheld in respect of grounds 1, 3 and 5 thereof. Save as aforesaid, the exception is dismissed.

B.           The plaintiffs are ordered to pay two thirds of the second and third defendants’ costs of suit in relation to the said exception.

C.           The plaintiffs are afforded 1 month from the date of this order to amend their particulars of claim further, if so advised.

                                                                                               

                                                                                               

                                                                                                            GAMBLE, J

 

 

APPEARANCES

 

For the plaintiffs: Mr.R.van Rooyen SC and Mr G.Solik

                              Instructed by Davout Wolhuter & Associates

                              Cape Town

 

For the second and third defendants: Mr.N.H.Maenetje SC

                                                                  Instructed by Gildenhuys Malatji Inc

                                                                  Pretoria

 

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