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[2011] ZAGPJHC 194
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Kunene v Road Accident Fund (07/8693) [2011] ZAGPJHC 194 (8 December 2011)
Links to summary
HEADNOTE:
RAF
– NO TRIABLE ISSUES
Motor
collision – RAF – Officials of Fund running trial by
remote control – Impending settlement proposals
later
proving to be unreasonable – Plaintiff having to proceed to
trial when no triable issues – Plaintiff's
experts called
when not having counterparts from Fund – Waste of court
time and contributing to unnecessary expense
in litigation.
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 07/8693
DATE:08/12/2011
In
the matter between:
KUNENE,
ALFRED
MWELASE
.............................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..................................................................
Defendant
J
U D G M E N T
MOSHIDI,
J:
INTRODUCTION
[1]
The plaintiff, Mr Alfred M Kunene, also using the surname Mthimkhulu,
has instituted action
against the defendant for compensation arising
from injuries he sustained when a motor vehicle collided with him.
The collision
occurred in Senaoane, Soweto, whilst plaintiff was a
pedestrian on 26 July 2003. At the time of the collision, the
plaintiff was
15 years of age. He will become 24 in December 2011.
ISSUES AGREED UPON BY PARTIES
[2]
Prior to the trial, the issue of liability was settled between the
parties on the basis
that the plaintiff is entitled to 70% of such
damages that he is able to prove. Consequently, only the issue of
quantum of damages
requires determination in this trial. At the
commencement of the trial the parties agreed that the award to be
made to the plaintiff
in respect of general damages is the amount of
R450 000,00. The defendant has also tendered to the plaintiff the
statutory undertaking
in terms of
section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
, for the costs of future accommodation
of the plaintiff in a hospital or nursing home, or treatment of or
rendering of a service
or supplying of goods to him, arising out of
the injuries sustained in the collision, and the
sequelae
thereof, after such costs have been incurred, and upon proof thereof,
limited to 70%. As a result, the only remaining head of damages
for
determination is the plaintiff’s loss of earnings and future
loss of earning capacity.
COMMON CAUSE ISSUES
[3]
From the evidence led as well as the various expert reports and
opinions, there is very
little in dispute. The following are common
cause facts. The plaintiff was born on 16 December 1987. At the time
of the collision
in 2003 the plaintiff was 15 years of age and in
Grade 9. He failed Grade 10 in the year following the collision,
namely in 2004.
At the end of 2007 the plaintiff achieved a Senior
Certificate, without exemption. There are no pre-accident school
reports available
from the schools attended by the plaintiff since
his mother had not kept such reports. The medical reports, discussed
below, almost
largely unchallenged, show that the plaintiff continues
to suffer from headaches, epistaxis (bleeding from the nose), memory
problems,
and non-convulsive fits which ceased in 2007.
THE EVIDENCE OF PLAINTIFF’S
WITNESSES
[4]
Three witnesses testified for the plaintiff. They are Professor M S
Mokgokong, a neurosurgeon;
Ms P Ngoako, an industrial psychologist;
and Mrs M A Gibson, a psychologist (Educational) with special
interests in neuropsychological
and educational assessment of adults
and children. On the other hand, the defendant led the evidence of
one witness only, namely,
Ms Sandra Moses, an industrial
psychologist. The evidence showed that the plaintiff was actually
assessed by a number of experts
at the instance of both the plaintiff
and the defendant.
[5]
I must at the outset observe that the manner in which the defendant,
through its legal
representatives, handled this trial, leaves much to
be desired to say the least. The plaintiff was compelled to prove his
case
right to the end, even though most of his evidence was
unchallenged by counter-expert evidence or in cross-examination. I
deal
in greater detail with this aspect later herein when considering
the costs issue.
[6]
In his evidence, Prof Mokgokong, who carefully traversed the relevant
hospital records,
was hugely impressive. He assessed the plaintiff on
12 March 2011. In brief, the records show that immediately after the
collision,
the plaintiff and his mother were conveyed by the insured
driver to a clinic, Koos Beukes, near Chris Hani Baragwanath
Hospital.
The plaintiff was ultimately admitted to Chris Hani
Baragwanath Hospital where he was checked, X-rayed and discharged.
The plaintiff
was re-admitted after a week for a left leg POP
(Plaster of Paris), which he kept on for about three months. A CT
brain scan was
performed and found to be normal. The plaintiff was
injured on his head, face, left ankle and back. At the time of the
assessment
by Prof Mokgokong, the plaintiff complained of left ankle
pain, headaches and epistaxis, which all started after the collision,
and became worse in cold weather. The plaintiff also reported
fainting twice after the accident.
[7]
In Prof Mokgokong’s opinion, the plaintiff sustained a mild
head injury resulting
in complaints of headaches and epistaxis as
well as two attacks of non-convulsive fits. The plaintiff’s
prospect of developing
post-traumatic epilepsy was assessed as high
as 25%. Prof Mokgokong gave an explanation for the difference between
a focal brain
injury and a diffuse head injury. The mere fact that
the CT brain scan performed on the plaintiff at the Chris Hani
Baragwanath
Hospital proved normal, did not necessarily mean that the
brain was in fact normal. The CT brain scan would only detect gross
abnormalities.
Prof Mokgokong recommended a thorough psychological
evaluation and expressed the view that given the time span between
the injuries
sustained and the date of his assessment, it would be
unrealistic to expect further spontaneous recovery, the period of
spontaneous
recovery being two years. He was of the view that such
deficits that are present will remain with the plaintiff for the rest
of
his lifespan. From the hospital records, Prof Mokgokong confirmed
the plaintiff’s complaints of persistent headaches and
epistaxis. The cross-examination of Prof Mokgokong was uneventful,
confirmatory of his evidence, and not countered by any expert
opinions.
[8]
Ms Gibson, both a neuropsychologist and educational psychologist,
testified on the outcome
of the assessment she made of the plaintiff
on 15 March 2011. In view of the fact that Ms Gibson’s evidence
was not seriously
challenged in cross-examination, it is unnecessary
to detail all her testimony.
[9]
Ms Gibson’s testing revealed that the plaintiff was functioning
well below expectation
in verbal fluency, psychomotor speed,
perceptual speed, numerical reasoning, analogical reasoning, forward
planning, visual memory,
learning, retention and recall, complex
attention, ability to sustain attention, ability to sustain
engagement, working memory
or complex attention, planning and aspects
of problem-solving. In addition, she highlighted the severe deficit
found to exist in
the plaintiff with regard to numeracy. All of the
deficits so found were consistent with the plaintiff having sustained
a brain
injury. The two year period for spontaneous recovery having
elapsed it was unlikely that there would be any improvement in the
plaintiff’s functioning.
[10] With regard to
the plaintiff’s pre-accident functioning/potential she
expressed the view that the
plaintiff’s aspiration was to
complete matric and progressed to tertiary education, preferably at
university level. Although
no pre-accident school reports were
available on the basis of the plaintiff’s own report as well as
indications from the
tests results this would seem likely to have
occurred as he was, despite the trauma of the accident under review,
able to complete
a reasonable matric in some subjects. Ms Gibson
concluded that the plaintiff had experienced a head injury and
presented in consequence
of such injury with the deficits outlined
above. In addition, she found him to be moderately anxious and
depressed. Variability
in functioning was also identified which is a
difficulty common in people with brain injury. Ms Gibson further
commented on the
report of Dr G M Prag, more particularly, on the IQ
scores obtained by the latter. Again there was variability in the
results indicative
of brain injury. Secondly, the difference between
the verbal IQ and the non-verbal IQ was 38 points whereas the
accepted difference
would be no more than 10 points. The difference
in her opinion is glaring and indicative of brain injury. Finally,
the plaintiff’s
score on the digits combined test of 13,5 was a
good indicator of his intelligence pre-accident which would have been
of high average.
[11] Ms Gibson, as
did Prof Mokgokong, traversed the hospital records and confirmed the
plaintiff’s complaints
of persistent headaches and epistaxis,
the hospital’s concern of a head injury requiring investigation
in the form of a CT
brain scan and a referral to the ENT Department
for epistaxis. Ms Gibson’s findings were corroborative of the
findings of
Prof Mokgokong.
[12] In a nutshell,
Ms Gibson was of the view that the plaintiff had the potential
pre-accident to achieve a
university degree. Post-accident, he was
limited and was unlikely to further his career in any meaningful
manner and was suited
to work where he would be under supervision.
The plaintiff would struggle if he lost his present employment in any
informal ventures
and may be able to work as a hawker.
[13] Ms P Ngoako,
an industrial psychologist, was the third witness for the plaintiff.
She testified on the assessment
she made to determine the extent and
impact of the accident-related injuries on the plaintiff’s
physical and cognitive functioning.
The assessment also aimed at
predicting the plaintiff’s future work prospects and earning
potential. Ms Ngoako also compiled
a joint minute with the
defendant’s industrial psychologist, Ms Sandra Moses. As in the
case of the plaintiff’s first
two previous witnesses, Ms
Ngoako’s evidence was not seriously challenged. She agreed with
Ms Moses that, but for the accident,
the plaintiff would have entered
the open labour market with a matric and vocational training in the
field of his choice probably
on a Patterson B2/3 level and progressed
to reach his ceiling on a Patterson C3/4 level.
[14] Ms Ngoako
testified that the approach adopted above was conservative given the
findings of Ms Gibson. In
this regard Ms Moses testified that a
lawyer to which reference was made by Ms Gibson as being a profession
to which the plaintiff
was suited given his verbal skills would
ceiling at D2/3 Patterson level. Having regard to the collision and
the injuries and their
sequelae
, Ms Ngoako was of the opinion
that the plaintiff could progress from his present position to reach
his ceiling at a B3/4 Patterson
level. Given the plaintiff’s
reported problems of headaches and memory, she was of the view that
these problems would likely
have a negative effect on his performance
and impact on his prospects of promotion. Whilst there were no
reported problems in his
present occupation, these may well surface
if he is required to do work which requires more cognitive demands.
[15] Insofar as the
risk of epilepsy is concerned, this, if it occurs, would have a
negative effect on the plaintiff’s
employment and if severe
enough, could render him unemployable.
[16] Ms Moses, an
industrial psychologist, testified as the only witness for the
defendant. The evidence of Ms
Moses, regrettably, proved difficult to
appreciate, and contradictory in several respects. It made the
Court’s task easier
to accept as impressive, more probable, and
persuasive the evidence of Ms Ngoako. In the first place, in the
joint minute with
Ms Ngoako, Ms Moses agreed that the plaintiff would
probably have entered the open labour market with Grade 12 and
vocational training
in the field of his choice, probably on Patterson
B2/B3 level, and progressed to reach his ceiling on Patterson C3/C4.
The industrial
psychologist further agreed that the plaintiff would
probably have worked and retired at the normal retirement age of 65.
All the
above predictions are pre-accident. However, post-accident,
and contrary to the opinion of Ms Ngoako, Ms Moses expressed the view
that the plaintiff suffered no loss of earnings since he started
working in 2010, and entered the labour market one year late,
and
three years had already passed before he secured employment. More
strangely, Ms Moses expressed the opinion that the plaintiff
will
suffer no loss of future earnings as he was currently employed. This
opinion, once more, differs sharply with the more credible
view of Ms
Ngoako. However, the cross-examination of Ms Moses was significantly
dramatic and revealing. Soon after cross-examination
commenced, Ms
Moses conceded unequivocally that the plaintiff had in fact suffered
a past loss of earnings by entering the open
labour market one year
later than he would have, but for the collision, and that he will
suffer loss of earnings in the future.
There was no explanation at
all why both these concessions were not made in either her report or
the joint minute with Ms Ngoako.
16.1 In addition, although Ms Moses
made the above concessions, it became abundantly clear that the
report that she allegedly wrote,
on which her evidence was based, was
not in consequence of an assessment made by her. It appeared that the
assessment on which
the report is based, was done by a colleague. To
make matters worse, Ms Moses gave evidence that the colleague
concerned had invited
the Court to call upon her to testify, if so
required. This should really be the last word on the evidence of Ms
Moses. I am therefore
fortified in my view that the evidence of Ms
Ngoako is by far more probable and acceptable to that of Ms Moses
insofar as there
were any differences in the opinions. Counsel for
the plaintiff went as far as describing the evidence of Ms Moses as
simply ludicrous.
The submission is not without merit.
BRIEF LIFE HISTORY OF PLAINTIFF
[17] The life
history of the plaintiff is captured comprehensively in the various
expert reports, notably that
of Ms Gibson, Ms Ngoako and Ms C Motake,
an occupational therapist. In short, the plaintiff lives with his
parents and two siblings
in Chiawelo, Soweto. He is single. His
father has no formal education, and is unemployed. His mother
matriculated, has nursing
qualifications, and is employed as a nurse.
His siblings have all matriculated. His one brother is employed as a
chef. The plaintiff
was in Grade 9 at Senaoane Secondary School at
the time of the accident in July 2003. He passed Grade 9 but failed
Grade 10 the
following year. He, however, passed Grade 10 on
repeating and eventually matriculated at the end of 2007. He
commenced working
as a sales assistant at Markhams, Johannesburg, in
June 2010 at a salary of R2 500,00 per month. His initial duties
involved being
a till operator. He obtained training at work in
December 2010 to become a CP Administration Controller, to date. He
works on the
shop floor dealing with customers. He works four days a
week. He experiences headaches at work and becomes tired. His
employers
are aware of his medical condition and give him time to
rest during tea-breaks and lunch-time. He regularly takes pain
killers.
[18] In the opinion
of Ms Gibson, the plaintiff would probably have completed matric
successfully, and progressed
to tertiary education pre-accident. This
was his aspiration and also based on current test results. The
plaintiff would probably
have obtained either a degree or diploma. He
would have progressed to senior levels as a professional in the field
of his choice.
Ms Ngoako concluded that post-accident, the medical
problems of the plaintiff will affect his work productivity as well
as his
ability to study further. He is now limited to sedentary work.
She was of the view, finally, that the plaintiff will probably not
reach his pre-accident employment potential and will suffer loss of
earnings as a result of the accident. There is also a joint
minute
prepared by Ms Gibson and Dr Geeta M Prag, defendant’s Remedial
Therapist and Psychologist. The latter did not testify.
No reasons
for this were given. The joint minute shows a divergence of views on
several aspects. The version of Ms Gibson is preferred
and more
probable.
[19] The overall
picture of the Court’s view is that all of the plaintiff’s
expert witnesses who
testified were impressive. Their opinions were
based on common sense and logic. The cross-examination rather than to
denude the
opinions, served instead to bolster the opinions
expressed, and, as submitted by counsel for the plaintiff, in fact
exposed the
plaintiff’s case as being conservative. It is
rather surprising that although the defendant filed a notice in terms
of Rule
36(9)(a) of the Uniform Rules to call Dr Percy Miller, a
neurosurgeon, to testify, this did not occur. It boggles the mind why
Prof Mokgokong was compelled to testify when he had no counterpart.
THE AWARD FOR LOSS OF FUTURE EARNINGS
– PAST AND FUTURE
[20] I deal first
with some legal principles based on the above evidence. It is trite
that the plaintiff bears
the
onus
to establish his claim on a
balance of probabilities. In the matter of
Bridgman NO v Road
Accident Fund
, (Cape of Good Hope Provincial Division, Case No.
5622/98), reported in Corbett and Honey, Vol V, B4-1 at B4-6, Van
Heerden J stated
the applicable principle as follows:
“
It
is apparent from the South African case law that, in the majority of
cases, the correct approach in assessing damages for loss
of earning
capacity involves a comparison between the present value of the
future income which the plaintiff would have earned
in an uninjured
state, on the one hand, with the present value of the plaintiff’s
estimated future income (if any) in his
or her injured state, on the
other hand.
”
In addition,
the plaintiff, in the context of the present matter, must allege and
prove that he has suffered or will probably suffer
financial loss or
diminution of his income. It is indeed not an easy task. In
Sandler
v Wholesale Coal Suppliers Ltd
1941 (A)
194, it was stated that:
“
It
is no doubt, exceedingly difficult to value the damage in terms of
money, but that does not relieve the Court of the duty of
doing so
upon the evidence placed before it. This is a principle which has
been acted on in several cases in South African Courts.
”
In
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA) at para [11], the Court said:
“
There
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss.
”
See also
Southern Insurance Ltd v Bailey NO
1984
(1) SA 98
(A) at 113G-H. In
Bane and
Others v D’Ambrossi
2010 (2) SA
539
, the following was said:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss. It has open to
it two possible approaches. One is for the Judge
to make a round
estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter of guesswork, a blind
plunge into the
unknown. The other is to try to make an assessment, by way of
mathematical calculations, on the basis of assumptions
resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and these may vary
from the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a grater or lesser extent.
”
ACTUARIAL ASSESSMENT
[21] In the present
matter, an actuarial assessment has been prepared at the instance of
the plaintiff by Mr
R J Koch, consulting actuary, on 5 August 2011.
The report is based almost exclusively on the report of Ms Ngoako.
The actuarial
assessment of Dr Kock reflects the following:
“
Results:
Uninjured
Injured
NetValue
R
R
R
Past
income:
303,898
40,894
263,004
Future income:
3,875,55 4
1,592,130
2,283,534
Control total for above
items 2,546,538
Note that the above values have not
been adjusted for general contingencies save that full allowance for
early and late death, in
accordance with the life table, has been
included in the capitalization process.
ROBERT
J KOCH
Our ref: MTH18915
05 August 2011
”
GENERAL CONTINGENCIES TO BE APPLIED
[22] The only
remaining issue on the subject of the plaintiff’s claim for
loss of earnings and earning
capacity, is the contingencies to be
applied. The parties agreed that no contingency is to be applied to
the uninjured earnings,
based on the patent conservative approach of
the plaintiff’s expert witnesses. In regard to the injured
earnings, the parties
agreed also that a 40% contingency deduction be
applied and based on the plaintiff’s documented medical
problems as well
as the probability of the plaintiff developing
epilepsy. Prof Mokgokong testified that such probability is about
25%. The agreement
of the parties on the contingencies is laudible
and finds favour with the basic principle underlying an award of
damages that the
compensation must be assessed as to place the
plaintiff, as far as possible, in the same financial position he
would have had,
had the wrongful act causing him injury not being
committed. In
Dippenaar v Shield Insurance Co Ltd
1979 (2) SA
(A) at 917A-B the following was said:
“
In the
present case there has been a loss of earning capacity the value of
which must be calculated in terms of what the plaintiff
would have
earned in money if he had not become incapacitated. The claim for
loss under the lex Aquilia in our law is wholly compensatory
and is,
in a case like the present, entrenched in s 11 of the Motor Vehicle
Insurance Act 29 of 1942, see Beyleveld’s case
supra at 152H,
171E. In our law, under the lex Aquilia, the defendant must make good
the difference between the value of the plaintiff’s
estate
after the commission of the delict and the value it would have had if
the delict had not been committed. The capacity to
earn money is
considered to be part of a person’s estate and the loss of
impairment of that capacity constitutes a loss,
if such loss
diminishes the estate.
”
It is equally trite that a defendant
who commits a delict and harms the victim, must take the victim as he
finds him/her.
[23] In applying
the agreed contingency deduction to the actuarial assessment, the
following picture emerges:
Uninjured
Injured
Net value
Past Income
R303 898,00
R40 894,00
R263 004,00
Future Income
R3 875 564,00
R1 592
130.00 – 40%
= R955 278,00
R2 930 286,00
TOTAL LOSS
R3 183 290,00
[24] In the
particulars of claim, para 8.2, the plaintiff claimed the amount of
R2 546 538,00 in respect of future
loss of income and loss of earning
capacity. However, as the credible and uncontroverted evidence
established a greater loss than
the amount originally claimed,
plaintiff’s counsel moved for an amendment of para 8.2 of the
plaintiff’s particulars
of claim in order to claim the amount
of R3 183 290,00. The amendment, which was not opposed, was granted,
and it could not prejudice
the defendant. In my view, the amount of
R3 183 290,00 represents fair and just compensation for the plaintiff
in the circumstances
of the case.
COSTS
[25]
25.1 I have to deal with the question
of costs at some length, regrettably. This matter, which was said
down for trial on 31 August
2011 and to run for approximately three
days, should not have been allowed to proceed to trial. On the first
day of the trial,
the matter could not proceed immediately as I was
informed by the parties that they were engaged in settlement
negotiations. In
the course of the morning it became clear that
counsel for the defendant was awaiting instructions from the Fund’s
management
or relevant claims handler, to settle the plaintiff’s
claim without proceeding to trial. It appeared that the relevant
claims
handler was not available. This was to be the pattern
throughout the trial. When the trial finally commenced, it was
unclear exactly
what the defendant’s opposition entailed.
25.2
On
the second day of the trial, I conveyed to counsel for the defendant,
who was visibly eager to settle the matter, but frustrated
by the
lack of response from the Fund, that I was considering a punitive
costs order at the end of the trial should the above conduct
persist.
I also expressed the view that it was unacceptable for officials of
the Fund to run the trial by remote control, so to
speak, and to hold
the Court at ransom with impending settlement proposals which proved
later to be unreasonable. The matter was
frequently stood down for
the defendant’s counsel to obtain reasonable settlement
instructions from the Fund. In the meantime
the plaintiff was
compelled to commence his case by calling witnesses.
25.3
It
however, transpired later in the trial that the defendant disputed
that the plaintiff had suffered a head injury. Despite having
no
counterpart, the defendant insisted that Prof Mokgokong testify. As
shown above, the findings of Prof Mokgokong were not seriously
challenged. In addition, in spite of the fact that the plaintiff had
been assessed by the defendant’s neurosurgeon, Dr Percy
Miller,
and that the defendant subsequently filed the relevant notice in
terms of Rule 36(9) of the Uniform Rules to call him as
a witness, Dr
Miller was in fact not called. His report was not served and filed.
Although the inescapable inference is that Dr
Miller supported the
opinion of Prof Mokgokong, or alternatively, opined a worse outcome
for the plaintiff, the true reason for
such failure later conveyed to
the Court, suggested something more absurd. I need not expand.
Similarly, Dr G Prag, who assessed
the plaintiff at the behest of the
defendant, but whose report was filed and served, did not testify.
The evidence of the only
witness called by the defendant, Ms Sandra
Moses, was discredited justifiably.
25.4
The
fact of the matter is that there were truly no triable issues. The
plaintiff’s expert witnesses were called upon to testify
despite not having counterparts. Counsel for the plaintiff, who
strongly contended for a punitive costs order, was quite correct,
in
my view, in labelling the conduct of the defendant as spurious and
unacceptable.
25.5
That
this practice, which is a common occurrence in this High Court,
should be discouraged as it leads to a complete waste of valuable
Court time, and contributes greatly to unnecessary expense in
litigation, is unquestionable. On a daily basis, in term, more than
60% of the matters on the civil roll involve the defendant. In
Bovungana
v Road Accident Fund
2009 (4) SA 123
(E), Froneman J dealt with a matter in which the Fund
contested its liability towards the plaintiff on the merits until
shortly
before trial. On the first day of trial the Fund sought a
postponement which was refused. In ultimately awarding a costs order
on an attorney-client scale against the Fund, Froneman J at para [7]
of the judgment said:
“
This
sorry saga should not have happened. It is, unfortunately, not an
isolated instance of how the Fund conducts litigation in
this
province. I do not intend to refer to many judgments in the
relatively recent past where concern has been expressed about
the
Fund’s conduct, except to refer to the judgment of Pickering J
in Ngwane v The Road Accident Fund, Bisho Case No. 151/2007,
where he
states, after referring to a number of judgments by different judges
in this province, the following:
‘
It
does not appear that the relevant officials in the employ of the
defendant have paid any heed to the criticism contained in these
judgments. In Mlatsheni’s case, supra, Plasket J considered
that the time may well have arrived for orders of costs de bonis
propriis to be awarded against employees of the defendant who give
instructions that have the effect of frivolously frustrating
legitimate claims. I respectfully agree. There is no reason why costs
which have been occasioned by the improper conduct of an
employee of
the defendant should be paid out of the public purse. If the Board of
the Road Accident Fund does not take seriously
what has been stated
in the various judgments then the relevant officials will find
themselves saddled with orders of costs de
bonis propriis.’
The
time for such orders has now arrived.
”
It is truly regrettable to note that
in spite of the fact that Froneman J also ordered that a copy of his
judgment be forwarded
by the registrar of the Court to the Board of
the Road Accident Fund, the conduct complained of has not improved in
any significant
manner. That was more than two years since.
25.6
In
the matter of
Mlatsheni
v Road Accident Fund
2009 (2) SA 401
(E), referred to above, judgment was handed down by
Plasket J on 6 December 2007. In
Madzunye
and Another v Road Accident Fund
2007 (1) SA 165
(SCA), where the Fund had opposed an appeal which was
based on a clearly wrong judgment of the High Court (Venda), Maya JA
at para
[17] said:
“
In an
unreported judgment of this Court, Road Accident Fund v Roman
Klisiewicz, Case No. 192/2001, handed down on 29 May 2002, Howie
JA
set out the extent of the respondent’s responsibilities, saying
in para [42]:
‘
The
[Road Accident Fund]
exists
to administer, in the interests of road accident victims, the funds
it collects from the public. It has the duty to effect
that
administration with integrity and efficiency. This entails the
thorough investigation of claims and, where litigation is responsibly
contestable, the adoption of reasonable and timeous steps in
advancing its defence. These are not exacting requirements. They must
be observed.’
”
The appeal succeeded with costs on the
attorney and client scale.
25.7
A
copy of the judgment of Plasket J in
Mlatsheni
supra
,
was also ordered to be served on the Chairperson of the Board of the
Road Accident Fund. However, it appears to me that the whole
exercise
of forwarding copies of judgments expressing disapproval of the
conduct of the defendant in litigation matters, has not
yielded the
desired effect. I shall therefore desist from following such
exercise. Similarly, costs orders on the attorney and
client scale
against the defendant seem to have proved fruitless. Counsel for the
defendant argued strongly against a punitive
costs order. However,
his argument was not convincing at all. I remain convinced that
whilst an order for costs
de
bonis propriis
seems attractive, an order of costs on the attorney and client scale
is fully justified in the circumstances of this case. Counsel
for the
plaintiff also argued, persuasively, that a trust should be formed
for the benefit of the plaintiff in this matter. I respectfully
agree. The proposal was not opposed.
ORDER
[26] In the result
the following order is made:
1.
The
defendant is ordered to pay the sum of R2 543 303,00 (being R3 183
290,00 plus R450 000,00 less 30% apportionment) directly
to the
trustee within 14 days of this order.
2.
The
defendant is ordered to furnish the plaintiff with an undertaking,
limited to 70%, in terms of
s 17(4)(a)
of the
Road Accident Fund Act.
>
3.
A
trust is to be formed for the benefit of the plaintiff and the
plaintiff’s attorney is authorised to sign all documents
necessary for the formation of the trust. The trustee is to furnish
security to the satisfaction of the Master in terms of
s 77
of the
Administration of Estates Act, No. 66 of 1965
, the annual costs of
security to be paid by the defendant. Should the trustee fail to
furnish security within a reasonable time
or vacate his office for
whatever reason, the Master of the High Court is authorised to
appoint an alternate nominee of his choice.
4.
The
defendant is to pay:
4.1
The
costs of the appointment of the trustee;
4.2
The
costs, remuneration and disbursements of the trustee in administering
the trust as well as the undertaking; and
4.3
The
costs of furnishing annual security for as long as the trust remains
in existence.
5.
The
defendant is ordered to pay the plaintiff’s costs on an
attorney-client scale which costs shall include:
5.1
The
costs of all medico-legal reports obtained by the plaintiff;
5.2
The preparation fees of all the plaintiff’s experts;
5.3
The
reasonable appearance fees of the following experts who gave evidence
on behalf of the plaintiff or who were in attendance at
Court:
(a)
Prof
M S Mokgokong;
(b)
Ms
M Gibson; and
(c)
Ms
P Ngoako.
6.
The
defendant shall pay interest on the sum awarded (R2 543 303,00) at
the applicable rate and calculated from a date of 14 days
from the
date of the order to date of final payment.
7.
As
soon as the plaintiff’s bill of costs has been taxed by the
plaintiff’s attorney, or agreed upon between the defendant
and
the plaintiff, the trustee is to receive and collect payment thereof
from the defendant directly for the benefit of the plaintiff.
8.
In
the event that a trust is not formed timeously, the defendant shall
pay all the amounts referred to above directly to the plaintiff’s
attorneys. The plaintiff’s attorneys shall invest the capital
amount so received in terms of s 78(2) of the Attorneys Act
No. 53 of
1979, the interest thereof accruing for the benefit of the plaintiff.
9.
The
trustee is to pay the plaintiff’s attorneys’ costs in
terms of the contingency fee agreement entered into between
the
plaintiff’s mother and the plaintiff’s attorney, duly
ratified by the plaintiff.
10.
The
trustee of the trust to be formed shall be entitled to call for an
appropriate taxation of the attorney and own client fees
and
disbursements to be recovered by the plaintiff’s attorneys,
should this be deemed to be necessary.
11.
This
order is to be served by the plaintiff’s attorneys on the
Master of the High Court, Pretoria, and the trustee of the
trust to
be informed within 15 days of the granting of this order.
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE
PLAINTIFF
M PATEL
INSTRUCTED
BY
M P MOTHA ATTORNEYS
COUNSEL FOR THE
DEFENDANT
M J C MAAKE
INSTRUCTED
BY
MOHLALA ATTORNEYS
DATE OF
HEARING
2 SEPTEMBER 2011
DATE OF
JUDGMENT
8 DECEMBER 2011