IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE

Case No.: 618/2008
In the matter between:

and

KOEN AJ.

1.The defendant in this matter has noted an exception to the plaintiff's particulars of claim on the grounds that it discloses no cause of action against the defendant in either contract or delict, alternatively on the ground that it is vague and embarrassing. For the sake of convenience I propose, for the purposes of this judgment, to refer to the excipient as the defendant and to the respondent as the plaintiff.
 
2. At the commencement of the argument it was accepted that the action wasone in delict .At the commencement of the argument it was accepted that the action was one in delict and the exception based on the ground that no cause of action in contract had been pleaded was not pursued. This turn of events has a bearing on the vague and embarrassing ground of exception, but I shall advert to this later.
3.In order to decide whether or not the particulars of claim make out a cause of action it is necessary, firstly, to distil from them the facts upon which the claim is based. I do not intend to quote from the particulars at length, only to summarise the essential facts upon which I understand the claim to be based.

6.In the particulars of claim the plaintiff alleged, further, that the defendant's employees were negligent in the manufacture of the evaporator unit in one or a number of respects. These were that they had failed to ensure that there were no weld defects in the evaporator manifold; that they had failed to ensure that the welding equipment would not produce weld defects; that they had failed to ensure that the materials which had been used in the welding and manufacturing process would not produce weld defects; and/or, in that they had failed to test the evaporator unit to make sure that weld defects did not exist.
7.It was alleged, further, that the conduct of the employees of the defendant, acting in the course and scope of their employment, was wrongful and that the defendant could and should have foreseen that as a result of defects in the manufacture of the evaporator unit damage could be caused to the property of end-users of the evaporator unit and its components.

8.Those facts, as I read the particulars of claim, form the basis of the claim brought against the defendant. Because the plaintiff's claim is in delict it is necessary to examine, briefly, what the requirements for delictual liability in our law are.
9.That delictual liability flows from a wrongful and negligent act or omission on the part of the defendant which causes loss to the plaintiff requires no authority. Each one of the ingredients which appear from this formula must be present in every claim based in delict. In this case the first question to be answered is whether the plaintiff has alleged in its particulars of claim sufficient facts to constitute a cause of action for damages in delict, with the focus being on the element of wrongfulness.

 

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15. At the outset it should be said that it does not escape attention that the defendant in this case was not, according to the pleading under scrutiny, minding its own business. On the contrary, it was in fact going about its business, namely the manufacture of evaporator units. In a sense this observation addresses the submission as it seems obvious that a positive act - the manufacture of the evaporator unit - is the conduct under consideration in this action. But this may be too glib and as it was earnestly contended that the negligent conduct alleged by the plaintiff amounted to an omission a more detailed consideration of the argument is desirable. The question which is to be answered is whether the defendant's negligent failure to take certain steps during the manufacturing process amounts to an omission, at least in the way the word is understood in the context of the wrongfulness element of an action in delict in our law.

16. Although it is true that many negligent positive acts can be described in language which connotes a failure to act it does not follow that such acts are treated in our law of delict as constituting omissions. An obvious example, as I see it, is the case of the negligent driving of a motor vehicle in failing to keep a proper lookout, or in failing to apply the vehicle's brakes when this becomes necessary. Although the failure to keep a lookout, or to apply brakes, when driving a motor vehicle are - in a loose sense - omissions they are not omissions in the context of a consideration of the wrongfulness element of a delictual claim in our law. What is in issue is the positive act of driving and a failure to take certain steps whilst doing this. To come back to this case, as I see it, the conduct under consideration is the positive act of manufacturing an evaporator unit.

17.The manner in which conduct in a delictual action is described or, to put it another way, the language used by the framer of a pleading, are not the determining factors when it comes to deciding whether or not the conduct under consideration amounts to an act or to an omission. The failure to take certain steps in the carrying out of a positive act - in this case the welding process in the fabrication of a part of the evaporator unit - does not make such conduct an omission in the sense that this word is used in the context of the consideration of the element of wrongfulness in delict. Such conduct is, as I see it, nothing more than a negligently performed commission.

18. I n my judgment therefore this is not one of those cases where the conduct which is alleged to have caused the loss is comprised of an omission, in the sense meant when one considers the wrongfulness component of delictual liability.

19. Counsel for the defendant, however, sought to persuade me that it was nonetheless the kind of case where the facts alleged did not speak of themselves to wrongfulness, and that I ought to uphold the exception because no facts to underpin the wrongfulness element had been alleged.

23. I must, therefore, conclude that our law assumes that the negligent manufacture of a defective product which causes physical damage and loss to another is wrongful. It follows that it is not necessary to plead facts in support of the conclusion that such conduct is wrongful. Theexception on the ground that the particulars of claim are wanting because facts to underpin the element of wrongfulness are absent must therefore fail.

26. It was argued, further, by counsel for the defendant that the particulars of claim were vague and embarrassing because the basis upon which the cold storage facility was operated by the plaintiff had not been disclosed. Again, as I see it, this objection is off target. Whether or not the cold storage room was operated by the plaintiff is in my view irrelevant to the pleaded claim. As I see it the pleading makes it reasonably clear what the case of the plaintiff is, namely an action in delict of the product liability variety. The allegation in question - that the cold storage facility was operated by the plaintiff - is not anecessary ingredient of the plaintiff's cause of action and should cause no embarrassment to the defendant.

27. A third basis upon which it was contended by the defendant that the particulars of claim were vague and embarrassing related to the allegations concerning negligent and wrongful conduct on the part of employees of the defendant. In my view it is reasonably clear that these allegations are intended to do nothing more than inform the defendant that the case against it is that its employees, in the course and scope of their employment, were negligent in failing to manufacture the evaporator unit properly. I do not see that the allegation is vague or embarrassing, or that any prejudice to the defendant can flow from the manner in which this portion of the particulars have been formulated.

29. Both parties submitted that any costs order should authorise the recovery of the costs of two counsel. In view of the nature of the matter
I agree.

30. For the above reasons I do not think that there is merit in the exception. In the circumstances I make the following order: The exception is dismissed with costs, such costs to include the costs of two counsel.