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[2016] ZAGPJHC 112
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Road Accident Fund v Zulu and Another (384918/2015) [2016] ZAGPJHC 112 (13 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
384918/2015
DATE:
13 MAY 2016
In
the matter between:
Road
Accident
Fund
..................................................................................................................
Applicant
And
Zulu,
Joseph
..................................................................................................................
First
Respondent
S.
S. Ntshangase
Attorneys
.......................................................................................
Second
Respondent
Judgment
Van
der Linde, J:
[1]
This is an application by the Road Accident
Fund under High Court Rule 42(1)(c) for the rescission of a judgment
granted “…
as the result of
a mistake common to the parties.”
The
judgment was granted on 21 August 2015 by the Deputy Judge President,
as part of the trial roll call, when he was informed by
counsel for
the plaintiff, the present first respondent, and counsel for the
defendant, the present applicant, that the mater had
been settled.
They handed up a draft order, and the DJP made it an order of court.
It included an amount of R380 000 for general
damages and both
past and future loss of earnings.
[2]
Counsel who acted for the applicant then,
also acted for the applicant in this application. He adumbrated from
the Bar what the
founding affidavit asserted had happened. The common
error relied upon by the applicant in the present application, was
the following.
The first respondent had sued the applicant under the
statutory claim for damages following on injuries sustained arising
out of
the driving of a motor vehicle on 22 October 2010.
[3]
The error is said to have come about while
the settlement was negotiated. Counsel for the applicant obtained a
mandate that morning
to settle general damages for R200 000. He
conveyed that to his counterpart, who accepted it.
[4]
His attorney that went away and obtained a
further mandate for loss of earnings. He reverted and conveyed an
amount to applicant’s
counsel the amount which, according to
the applicant’s attorney, was some R20 466; but was erroneously
understood by applicant’s
counsel to be R204 466. Applicant’s
counsel then proposed to his counterpart that loss of earnings be
settled at R180 000,
and so that the globular amount in respect
of damages would come to R380 000. The defendant, now first
respondent, accepted
this, according to the applicant’s
version.
[5]
This amount, together with an appropriate
certificate in respect of future medical expenses, was then conveyed
to the DJP in the
form of a typewritten draft order, and the judgment
was made by consent and so announced in court. Some days later the
applicant
appreciated that an error had occurred in conveying the
mandate to the first respondent, and in due course, after some delay,
launched
the present application.
[6]
In the answering affidavit the respondents
argued that condonation for the delay in the bringing of the
application was required
but should not be granted. They also
disputed squarely the contention that there was any error on the part
of the applicant;
and they certainly denied that there was any error
on their part.
[7]
Their version is very different from that
of the applicant. They say that at all times the R380 000
was offered as an
all-in settlement; there was no talk of first
offering R200 000, and then later offering R180 000. No
replying affidavit
was filed, and there was at no stage an
application by the applicant to refer the disputes to evidence or
trial.
[8]
It does not seem to me that there is merit
in the attack on the application having been brought late. The
application is expressly
brought under rule 42, and it has no express
time limit.
[9]
Concerning
the merits, however, there is objective support for the respondent’s
version. The actuary, Mr Jacobson,
[1]
calculated the total loss of earnings on two bases. On basis A, the
loss was R20 466;
[2]
on
basis B, the loss was R178 453.
[3]
This latter calculation was arrived at on the assumption that the
first respondent, but for his injuries, would have continued
working
till age 70. The former amount was on the basis that the respondent
would have worked only to age 65. The basis A assumption
was made by
Mr Jacobson the basis of the opinion, which he recorded in his
report,
[4]
expressed by an
expert, Dr Sugreen, whose report was not included in the papers.
[10]The
amount of R178 453 referred to in Mr Jacobson’s basis B
comes close to the amount of R180 000 which on the
applicant’s
version was offered to the first respondent’s counsel by the
applicant’s counsel. Although the respondents’
version is
very different, the R180 000 adds up with the R200 000 also
mentioned by the applicant, to arrive at R380 000,
the all-in
amount to which the respondents refer.
[11]So
it is entirely possible that the components of R200 000 and
R180 000 were calculated on the applicant’s side;
but the
point is that it shows that, whatever version one accepts, the
applicant had conveyed to the respondent an offer which
had provided
for about R180 000 for loss of earnings.
[12]During
argument counsel for the applicant was asked whether the applicant
contended that the respondent was party to, or even
aware of, the
mistake on which the applicant relied for the relief it was claiming
in the application. Counsel responded that no
such case was asserted
or could be asserted, as the respondent was illiterate, and probably
did not even know what Mr Jacobson
had concluded. Also, no argument
was advanced by the applicant as to why it should be regarded that
the error which admittedly
was unilaterally made, was
justus
or reasonable.
[13]In
these circumstances there are two insurmountable problems in the way
of the application succeeding. The first is that the
applicant
cannot, on these papers, show “
a
mistake common to the parties.”
The participation by the respondent in such a mistake is absolutely
lacking, even on the applicant’s own version. The second
is
that on the respondent’s version, there was in truth no mistake
at all, not even on the part of the applicant. And the
respondent’s
version must be accepted, absent a referral to either evidence or
trial.
[14]
In the result the application must fail, and I
make the following order:
The
application is dismissed with costs.
WHG
van der Linde
Judge,
High Court
Johannesburg
For
the applicant: Adv. ST Malejwe
Instructed
by: Maribana Makgoka Inc.
13
th
Floor, Marble Towers
208
– 212 Jeppe Street
Johannesburg
Tel:
011 333 8533
For
the respondent: Adv. SL Ress
Instructed
by: S.S. Ntshangase Attorneys
13
th
Floor, Marble Towers
208
– 212 Jeppe Street
Johannesburg
Tel:
011333 0926/7
Date
argued: 6 May, 2016
Date
of judgement: 13 May, 2016
[1]
His
report is at p27 ff.
[2]
P29.
[3]
P30.
[4]
At
the top of p28.