A postgraduate student at the University of Cape Town who was allegedly raped by a medical professor employed by the university in his office failed in her first hurdle to sue both the university and the Western Cape Department of Health and Wellness for damages.
The student held both the university and the department vicariously liable for her ordeal as she stated in her summons that both had a legal duty to ensure her safety.
The plaintiff was, as a postgraduate student, employed by the department at Groote Schuur Hospital at the time.
Both the department and the university took exception to her particulars of claim, to which they were supposed to respond in stating their defences. They told the Western Cape High Court that her particulars of claim were vague and lacked averments linking them to the alleged sexual misconduct.
Their argument was that it is not clear what they could have done to have prevented the incident.
The plaintiff alleges that at the time of the alleged incident the professor was employed by both the university and the department and that they - as his employers - were responsible for his actions.
According to her, on or about March 3, 2021, she was raped by the medical professor when she went to his office at the hospital and as a result, she had suffered damages.
The plaintiff, in her particulars of claim, said the university and the department were subject to a legal duty to ensure that employees, or students, including herself, were not subjected to sexual and gender-based violence.
According to her, they “should take all reasonable steps to prevent any form of gender-based violence to prevent the commission of a rape, which constitutes a humiliating, degrading and brutal invasion of the privacy, dignity and the person of a victim.”
She alleged that the incident occurred “as a result of the failure of second and third defendants and their employees, acting within the course and scope of their employment” to take the necessary steps to safeguard her.
Her particulars of claim do not contain any allegation with regard to what specific acts the defendants and their employees could and should have performed, but failed to perform, in order to discharge the legal duty they owed to her, which would have prevented the professor from committing the alleged rape, the court noted.
She blamed negligence on the part of the university and the department for her allegedly being raped.
The court noted that she merely relies on the defendants’ general obligations, which have a wide ambit. The court said the fundamental difficulty with the particulars of claim is that the reader does not know in what respects the university and/or the department was negligent.
“The plaintiff failed to allege what the steps are that each defendant could and should have taken, but failed to take, in order to prevent the incident. The allegations beg the question: What exactly should the defendants and their employees have done in order to prevent the incident? The particulars of the claim contains no particularity in this regard,” the court said.
It commented that a statement is vague if it is either meaningless, or capable of more than one meaning. Simply put, the reader must be unable to distill from the statement a clear, single meaning.
“The basic requirement is that the defendant must have a clear enough exposition of the plaintiff’s case to enable it to take instructions and file an adequate response to the claim, in the form of a plea,” the court said.
It upheld the legal points raised by the department and the university, but the woman was given a month in which to file amended particulars of claim if she wished to proceed with her claim.
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Pretoria News
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