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[2011] ZAGPJHC 145
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Tshabangu v Road Accident Fund (2009/49589) [2011] ZAGPJHC 145 (19 October 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
CASE NO:
2009/49589
DATE:19/10/2011
In the matter between:
Tshabangu, Sydwell
Nhlanhla
….................................................................
Plaintiff
and
Road Accident Fund
…...........................................................................
Defendant
JUDGMENT
WEINER J:
Introduction and
background
In this matter I
delivered judgment on the 18th of August 2011. Paragraph 4 of the
order read as follows:
“
A rule nisi is
issued calling upon the senior claims manager charged with this case
and the defendant’s attorneys to show
cause on Thursday 25th of
August 2011 at 10H00 before Weiner J as to why they should not pay
the cost of this matter on the attorney
and client scale de bonis
propriis.’
The reason for the rule
nisi being issued was based upon the way in which the preparation
for the trial was conducted and the
issue of the special plea raised
by the defendant. The defendant pleaded that in terms of section
17(1A) read together with regulation
3(1) “(the regulations”)
of the Road Accident Fund Amendment Act of 2008 (“RAF Act”)
the plaintiff did
not qualify for compensation for general damages
as the plaintiffs whole personal impairment (“WPI”) was
assessed
at 8 percent. This was in terms of a medical report as well
as an RAF4 form completed by Dr Morare in May 2009.
It was common cause
that:
The plaintiff’s
claim for general damages was based upon the “narrative”
test (after an amendment filed on
12 May 2011);
Plaintiff submitted
three RAF4 forms in this regard on 28 June 2011, 27 July 2011 and 5
August 2011;
Defendant did not
comply with the regulations in objecting to such RAF4 forms.
The special plea was
filed on 8th March 2011 and never amended or withdrawn, even at
trial;
Identical special pleas
have been raised by the defendant’s attorneys, Kekana
Hlatshwayo Radebe (“KHR”), on
at least two previous
occasions, in similar circumstances, and have been dismissed in
this division by Claasens J in both instances.
1
On the 25th of August
2011 argument was presented on behalf of the claims manager, Sipho
Ledwaba (“Ledwaba”) and on
behalf of the defendant’s
attorney, Mr Moyana (“Moyana”) of KHR in satisfying the
rule nisi.
The evidence of Mr
Ledwaba
In an affidavit
submitted by Ledwaba he stated the following:
The defendant
instructed KHR to defend the action on their behalf;
On the 8th of March
2011, KHR filed a plea to the plaintiffs claim;
A precedent was
forwarded to all the defendants’ panel attorneys during
March 2011 as to how the special plea is to
be framed when
disputing entitlements to general damages in the event that there
was no compliance with the regulations;
The special plea,
although badly framed, was intended to dispute the plaintiffs
entitlement to compensation for general damages;
On the 12th of May
2011, the plaintiff amended his particulars of claim to allege an
entitlement to general damages on the
basis of the “narrative”
test as opposed to the WPI assessment;
Further RAF4 forms
were submitted by the plaintiff completed by Dr Sher (orthopaedic
surgeon) and Ms. Doran (occupational
therapist). These
medico-legal reports were served on the defendant’s attorney
on 28 June 2011 and 27 July 2011 respectively;
In addition, on the
5th of August 2011, an addendum RAF4 form compiled by Dr Morare
was submitted in terms of the “narrative”
test. Dr
Morare concluded that the plaintiff had incurred serious long term
impairment to his right ankle.
The defendant’s
orthopaedic surgeon, DR RA Morule, had determined that the injury
was not serious, in his report dated
3 June 2011.
Accordingly, by the 12th
of May 2011, it was clear that general damages were claimed based
upon the “narrative” test
and not upon the WPI
assessment. In addition, the defendant’s attorney has also
received three medico-legal reports with
the RAF4 forms in June,
July and August 2011.
Despite that, on the
11th of August 2011, Moyana informed Ledwaba that he recommended
that the question of liability be settled
on an 80 percent-20
percent apportionment and that no amount be tendered in respect of
general damages as the plaintiff would
not qualify as the impairment
was less than 30 percent of WPI.
This tender was
confirmed by Ledwaba’s senior manager, Mrs Marlize Joubert.
Ledwaba claims that he heard nothing further
from KHR until he
received the letter dated 19th August 2011 annexing the court order
in terms of which he was called upon to
provide reasons why he
should not be held liable for the costs.
It is pertinent to note
that Ledwaba says he only received the 3 recent RAF4 forms on 11
August 2011.
Conduct of the defendant
It is clear from what
was stated in the main judgment that the defendant failed to follow
the proper procedures in objecting to
the RAF4 forms provided by the
plaintiff based upon the “narrative” test.
2
Despite this the defendant persisted with the plea that the
plaintiff was not able to claim general damages based upon the fact
that the WPI fell below the 30 percent threshold. Both the evidence
of Ledwaba and that of Moyana demonstrate that they both
failed to
appreciate the difference between a WPI 30 percent RAF4 form claim
and one based upon the “narrative” test.
At the hearing of the
matter reference was made to judgments delivered by Claasens J. In
Smith and Another v Road Accident Fund
(case no. 47697/09), which
judgment was delivered on the 29th of April 2011, the defendant
dealt with the RAF4 form by writing
a letter two years after the
RAF4 form was completed. In such letter, it stated simply that it
rejected the assessment on the
RAF4 form as the plaintiff had not
reached MMI at the time of completion of the RAF4 form. Claasens J
held that the objection
was purely obstructive and not properly
raised. Similarly, in Mianbo v Road Accident Fund (case no.
00322/10), handed down on
the 29th of October 2010, Claasens J held
that when the plaintiff filed a RAF4 form based upon the “narrative”
test,
it had in fact complied with the regulations and the special
plea raised was dismissed.
In the present case KHR,
on behalf of the defendant, delivered a letter on the 3rd of August
2011 referring to the plaintiffs
RAF4 form submitted by Dr Morare on
the 15th of May 2009. The basis of the objection was that the injury
did not result in a
30% or more WPI. This objection was received
more than two years after the original RAF 4 form was filed. It
related only to
the RAF4 form filed by Dr Morare and did not deal at
all with the RAF4 forms filed by Dr Scher and Ms. Doran. The
defendant accordingly
did not comply with the procedure in terms of
which it was obliged to act if it objected to the plaintiff’s
claim.
Despite this the
defendant’s counsel, on instructions from his attorney,
persisted with the special plea which obliged the
plaintiff to spend
most of the hearing arguing the legalities of the special plea.
What is of relevance is
that the two cases referred to above in which the same issue was
raised and dismissed by Claasens J involved
KHR as attorneys for the
defendant.
Evidence of Moyana
In Moyana’s
evidence, he stated that :
Mrs Kekana, a director
of KHR, had received instructions from the defendant sometime in
2008 that a special plea based upon
non-compliance with the
regulations should be raised. In matters where the plaintiff
claimed general damages for an accident
that occurred after 1
August 2008, where the claim did not meet the 30% WPI threshold;
Mrs Kekana gave that
instruction to the employees.
He drafted the special
plea in the present case. At he was not aware that a RAF4 form had
been filed.
He was not at court on
the day the trial proceeded but his colleague told him that he had
called the Road Accident Fund for
instructions. [This is disputed
by Ledwaba who claims he heard nothing from the defendant’s
attorney on the day of the
trial].
He was unaware of these
previous judgments against KHR. Although he was not the attorney
dealing with those matters, no one
from KHR had informed him of
this.
He was aware that Dr
Sher and Ms Doran had filed RAF4 forms in June and July 2011.
His letter of objection
to Dr Morare’s report (filed in 2009) was delivered on the
3rd of August – a week before
the trial. He confirmed that
they objected on the basis that the plaintiff had not reached the
30 percent WPI.
Under
cross-examination, he stated that they only object to RAF4 forms
that do not meet the WPI 30% and do not object to the
RAF4 forms
that support the “narrative” test. However, despite the
“narrative” test, the defendant
could still persist
with the plea, as the defendant’s expert, Dr Morule did not
believe that the plaintiff passed the
serious injury test [Dr
Morule was not called by the defendant to give evidence in
opposition to plaintiff’s experts]
to confirm this.
However, he conceded
that, even on this basis, the defendant failed to follow the
correct procedure under Regulation 17, thus
rendering the
plaintiff’s claim admissible, through the defendant’s
default.
The defendant had not
objected to the RAF 4 forms received in June, July and August 2011.
When he was asked why the defendant
persisted with the special
plea, he stated that it was not his call to withdraw the special
plea without instructions.
He did not, from the
time that he received the reports in June and July, attempt to get
further instructions from the defendant.
On the day of the trial,
despite persisting with the special plea, counsel for the defendant
did not make any submissions refuting
the plaintiff’s legal
argument on the special plea. In addition, the defendant failed to
call any witnesses to dispute
the evidence of the plaintiff’s
expert (in relation to whether the injury was serious or not) and
offered no defence to
the plaintiff’s submissions regarding
general damages.
It is clear that whether
or not Moyana was aware that the RAF4 form had been timeously filed
at the time the special plea was
drafted, he became aware that
plaintiff’s claim was based upon the “narrative”
test on 12 May 2011 and he received
the RAF4 forms on 28th of June,
27 July and 5 August 2011. The defendant did not object to such RAF4
forms. Despite this, the
defendant’s counsel, on instructions
from the attorney, persisted with the plea.
What further appears
from the affidavit submitted by Ledwaba is that the RAF4 forms of Dr
Sher and Ms. Doran which were filed
in June and July were only sent
to the Road Accident Fund on the 11th of August. There was no
explanation from Moyana why the
forms were only submitted to the
Road Accident Fund on the 11th of August.
The Road Accident Fund
should be able to give input when recommendations are made by their
attorneys in regard to settling cases.
It should not rely only on
the opinion of their attorneys. However, this ability to give input
would have been taken out of their
hands in that they only received
the forms dealing with the “narrative” test on the 11th
of August. Thus when they
accepted the recommendation of the
attorney that they should not tender any amount for general damages,
they were unaware of
the RAF4 forms which had been filed based upon
the “narrative” test.
It seems to me that
there is a total lack of communication between attorneys who are
briefed by the Road Accident Fund and the
claims managers in charge
of particular cases. It happens on virtually each occasion that a
matter is called in the trial court
that the parties are not ready
to proceed because the defendant’s counsel has not received
proper instructions. Whether
it is the attorney’s fault for
not keeping the defendant updated on a regular basis or the
defendant’s fault for
not keeping abreast with the progress of
the matter, is an issue which permeates the civil roll on a daily
basis. The Road Accident
Fund matters form the majority of the
matters on the roll. Very few are fully contested; most are settled
at trial or postponed
because the parties (usually the defendant)
has been dilatory in providing expert reports or offering a
settlement.
If the communication
between the defendant and its attorneys was regular, timeous and
informed, these matters would, in the main,
become settled, as they
should, long before the trial date. This would enable the court’s
function to be exercised properly
in the administration of justice
and not as an “eleventh hour” power to force parties to
get their house in order.
There are issues which
should be dealt with at the pre-trial conference by which time the
attorneys and counsel should have proper
instructions in regard to
the issues in the matter.
Furthermore, the
defendant in many of these matters does not make an offer of
settlement but compels the plaintiff to lead all
of its witnesses
and submit legal arguments. The defendant does not ask any questions
of the plaintiff’s witnesses, does
not call any of its own
witnesses and does not offer any substantial defence to the legal
and or factual submissions made by
the plaintiff’s counsel.
From the evidence which was led by Moyana, it appears that it has
become common practice to simply
raise the special plea referred to
without any reference to the particular facts of the case in
question. Whether or not an instruction
has been received by the
firm of attorneys from the Road Accident Fund, is not dispositive of
the matter. An attorney has a duty
to the court as an officer of the
court to do more than simply use a standard form of plea.
Both Moyana and Ledwaba
seemed to ignore the “narrative” test which forms the
basis of the plaintiff’s claim
and stated that the special
plea should be raised when the 30% WPI has not been reached. They
both seemed to believe that that
was applicable in the present case.
It is clear from the
judgements of Claasens J to which I have referred above, that when
the “narrative” test is used
and the medical experts
provide the factual basis for such test in determining that the
injury is serious, the procedures in
terms of regulation 17 have
been correctly followed by the plaintiff. The defendant is then
obliged to follow the procedures
applicable if it objects. This, the
defendant failed to do, but it persisted with its special plea.
The evidence of Moyana
that he had not been given any information about the judgments which
have been granted against his firm
is both incredulous and of great
concern to this court. It appears that KHR have continued to act in
total disregard of such
order, not even informing members of their
staff that, in circumstances such as the present, such special plea
should not be
pleaded and/or proceeded with.
It borders on contempt
of court that a firm of attorneys against whom several judgments
have been granted on a particular issue
continues to file the same
plea and persist with it when it is not applicable in the particular
circumstances of the case. This,
more particularly, when the
defendant has failed to comply with its obligations in terms of the
relevant regulation.
Costs
In Jwili v Road Accident
Fund [2010] JOL25488 (GNP), Southwood J referred to rule
37(9)(a)(ii) which provides: ‘at the hearing
of a matter the
court shall consider whether or not it is appropriate to make a
special order as to costs against a party or
his attorneys, because
he or his attorney - … (ii) failed to a material degree to
promote the effective disposal of the
litigation.’
Southwood J stated as
follows:
“
[U]sually I would
have great difficulty in accepting that the claims handler would not
be available to provide instructions particularly
on the morning of
the trial but regrettably I must accept that it is not so improbable
that it must be rejected. This is the third
of the trials I was
allocated on the 4th of May 2010. All involved claims against the
Road Accident Fund. The first trial settled
in the time it took for
the advocates to walk from the roll call to my chambers and I was
told that the defendants counsel had
only just received instructions
from the Road Accident Fund. The second trial settled minutes before
I went into court once again
because the Road Accident Fund had
delayed giving its instructions. On both occasions I was told that
the attorneys had had great
difficulty in obtaining instructions from
the Road Accident Fund. Nevertheless I considered that Mr Ntimbana’s
[the attorney]
conduct of the case failed to a material degree to
promote its effective disposal..... ‘A legal practitioner has a
duty to
the court not only to his client and must not misrepresent
facts to the court.....I am loath to make an order for costs against
the defendant because of the conduct of its claims handler Mr
Sibongele Dondashi but I am unable to find a way to make him liable
for the costs of this hearing which have been unnecessarily
incurred.”
Failure to a material
degree to promote the effective disposal of the litigation
In the present matter
Moyana does not appear to have been as negligent as the attorney in
the Jwili case. In addition, he was
unaware of the judgments handed
down against KHR. However, as stated above, the lack of proper and
informed communication between
Moyana and the defendant and the time
that was wasted in compelling the plaintiff to present argument with
regard to the special
plea, is the responsibility of the defendant’s
attorney together with the defendant.
In the result I find
that both the defendant and the defendant’s attorneys, KHR,
have ‘failed to a material degree
to promote the effective
disposal of this litigation’.
Order
The order which I made
on the 18th of August of 2011 stands save that paragraph 4 thereof
will be amended to read as follows:
“
4. The defendant
and the defendant’s attorneys Kekana, Hlatshwayo and Radebe
Incorporated are ordered to pay the costs of
this action from 12 May
2011 to date hereof jointly and severally the one paying the other to
be absolved. The defendant is to
pay the balance of the costs”
The registrar of this
court is directed to send a copy of the judgment and this order
together with copies of the pleadings to
the president of the Law
Society of the Northern Provinces to investigate the conduct of
Kekana, Hlatshwayo Radebe in the light
of this judgment.
DATED AT JOHANNESBURG
THIS 19th DAY OF OCTOBER 2011
___________________
Weiner J
Date of hearing: 25
August 2011
Date of judgment: 19
October 2011
Counsel for the
plaintiff: Adv.
Du Plessis
Attorneys for the
plaintiff: Raphael Kurganoff Inc.
Counsel for the defendant
(KHR):
Adv. JF Roos SC
Attorneys for the
defendant (KHR): Kekana Hlatshwayo Radebe Inc.
Counsel for the Road
Accident Fund: Adv. Patel
Attorneys for the Road
Accident Fund: Eversheds
1
See
Smith and Another v Road Accident
Fund
(case no. 47697/09) and
Mianbo v Road Accident Fund
(case no. 00322/10).
2
I dealt in the judgment with the procedure to be followed in
assessing claims for general damages in terms of section 17(1A)
read
together with regulation 3(1) of the RAF Act.