Lawyers for a former UCT student allegedly raped by a professor in 2021 are considering their next steps, after the Western Cape High Court set aside her case for damages against the university and the health department with costs, on the basis that it was “vague and embarrassing”.
She was given leave to file amended particulars of her claim within a period of one month from the date of the court decision.
The former student had approached the court seeking damages from UCT and Health MEC Mireille Wenger, for damages suffered as a result of the alleged rape incident, arguing they had a liability for the alleged crime committed by their employee.
Her case was further based on the alleged breach of a legal duty which the university and health department owed her, court papers read.
The woman was a postgraduate student at UCT at the time of the alleged incident while also being employed by the Western Cape Department of Health and Wellness at a hospital.
The legal duty these institutions had, the former student argued, included ensuring that employees, alternatively students, like herself, were “not subjected to sexual and gender-based violence, which duty included (without limitation) the following obligations: To ensure the common law rights of persons are respected and protected in respect of physical integrity. To respect, protect, promote and fulfil the rights encapsulated in the Bill of Rights in order to prevent gender-based discrimination and to protect the dignity, freedom and security of women”.
The university gave notice of its intention to raise an exception against the particulars of claim on the basis that it “failed to disclose a cause of action, alternatively is vague and embarrassing”, court papers read.
Lawyers for the university further argued that the allegations in the particulars of claim, were “not sufficient to establish a breach of any legal duty owed by the university”.
The department also raised an exception against the particulars of claim on the basis that it was “vague and embarrassing” as the allegedly unlawful conduct was not “particularised”.
Western Cape High Court acting Judge Pieter Vivier found that the former student failed to allege what steps the university and the department failed to take in order to prevent the incident.
“The allegations contained in the particulars of claim begs the question:
What exactly the defendants and their employees should have done in order to prevent the incident. The particulars of claim contains no particularity in this regard,” Judge Vivier found.
As it was alleged the incident took place in the professor’s office at the university, “it is difficult to imagine what the reasonable and practical steps are that the University, or the department for that matter, could and should have taken, which would have prevented (the incident)”.
Judge Vivier said: “The second and third defendants’ exceptions to the plaintiff’s particulars of claim, on the basis that it is vague and embarrassing, is upheld. The plaintiff’s particulars of claim is set aside and the plaintiff is given leave, if so advised, to file amended particulars of claim within a period of one month from the date of this order.”
Approached for comment, lawyer for the former student, Dawie Maartens said they were considering the judgment.
“We have made an appointment with counsel in the coming days to consult on the issue of a possible amendment, as we have one month to do so from the date of judgment.”
UCT said: “UCT notes the Western Cape High Court judgment in a case by a former postgraduate student, in which UCT is one of the respondents.”
Wenger’s office did not respond to requests for comment on the matter by deadline on Tuesday.
Cape Times