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[2018] ZAGPJHC 26
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Road Accident Fund v Z and Others (16319/2013) [2018] ZAGPJHC 26 (22 February 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE:
22/02/18
CASE:
16319/2013
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
In
the matter between:
ROAD
ACCIENT
FUND
APPLICANT
AND
Z.,
CT
FIRST
RESPONDENT
Z.,
CT
SECOND
RESPONDENT
Z.,
CT
THIRD
RESPONDENT
Z.,
CT
FOUTH
RESPONDNET
JUDGMENT
TWALA J
[1]
The applicant brought an application seeking an order for the
withdrawal of an admission on the merits of this case made at
the
pre-trial conference of the parties held on the 12
th
of June 2017. Further, the applicant sought an order that the case
against it be proceeded with on both the merits and
quantum
.
[2]
The respondents have filed their opposing papers of this application
and brought a counter application for the dismissal of
the
applicant’s application for the withdrawal of the admission
made at the pre-trial conference of the parties. Both the
parties
were late in filing their opposing papers – hence they applied
for condonation for the late filing of the papers
which condonation
was, in the interest of justice, granted by the Court.
[3]
The first respondent, in her personal capacity and in her
representative capacity as the mother of the second, third and fourth
respondents instituted a claim for damages against the applicant
arising from a motor vehicle accident that occurred on the 21
st
of September 2011 wherein her late husband and father of her
children, B. M. M. died. The summons was issued in May 2013 and the
case was set down for trial on the 18
th
of May 2015 when it was removed from the roll and re-enrolled for the
8
th
of August 2017.
[4]
On the 12
th
of June 2017 the parties held a pre-trial conference in terms of rule
37 of the Rules of Court. In the pre-trial, the applicant
agreed that
the sole cause of the accident in which the respondent’s
husband died was the negligent driving of the insured
driver.
On the 6
th
of July 2017 and at the judicial pre-trial before Sutherland J, the
matter was “
certified
ready for trial on the computation of the quantum in the dependants’
action.”
[5]
Counsel for the applicant contended that the attorney who was dealing
with this case was snowed under at the time he made the
admission and
did so without obtaining instruction from the applicant. The attorney
made an error in admitting that there is no
issue on the merits and
conceded the merits. The respondents were awarded costs for the
postponement of the case on the date of
trial and therefore, so goes
the argument, the prejudice which they may have suffered has been
cured by the costs order. The Court
should be mindful of the fact
that the applicant is acting in a fiduciary capacity and should be
careful in handling the public
purse. The respondents will not suffer
any prejudice if on the trial of the matter both merits and quantum
are determined.
[6]
It is contended by counsel for the respondents that the applicant did
not make an admission at the pre-trial but conceded the
merits of the
case. It should be borne in mind that, argued counsel for the
respondents, the case between the parties is a dependants’
claim whereupon the respondents have the onus to prove only 1%
negligence on the part of the insured driver to succeed in their
claim. The applicant, as the argument goes, has failed to furnish
full particulars of the Durban claims which it alleges are similar
to
this case to warrant the application for the withdrawal of the
concession it made at the pre-trial conference. Further, there
is a
duty on the applicant to investigate cases before taking any decision
as it is acting in fiduciary capacity and needs to be
careful when
handling the public purse.
[7]
It is contended further by counsel for the respondents that the
applicant had ample time to investigate the matter – hence
the
attorney made the concession after he was satisfied that there was no
issue with regard to the merits of the case. The respondents
will
suffer irreparable harm which cannot be cured by a costs order should
the issue of merits be reopened. The case can only be
enrolled and
heard in eighteen months from now and the applicant will not pay the
interest for that period. The respondents
released their
witnesses after the applicant conceded the merits and would have
difficulty in tracing them. The applicant, it is
so contended, made
an offer to settle the merits which offer the respondents accepted.
There is a contract between the parties
with regard to the merits and
it is not an admission in the true sense but a concession which was
accepted and became a contract
between the parties.
[8]
There is a plethora of decisions of our Courts that the purpose of
rule 37 is to afford the parties an opportunity to endeavour
to find
ways of curtailing the duration of the trial by redefining the issues
to be tried.
[9]
In the case of
MEC for Economic Affairs, Environment &
Tourism; Eastern Cape v Klaas Kruizenga & Another
2010 (4) SA 122
(SCA)
the Court stated the following:
“
the
rule was introduced to shorten the length of trials, to facilitate
settlements between the parties, narrow the issues and to
curb costs.
One of the methods the parties use to achieve these objectives is to
make admissions concerning the number of issues
which the pleadings
raise. Admissions of fact made at a rule 37 conference, constitute
sufficient proof of those facts. The minutes
of a pre-trial
conference may be signed either by a party or his or her
representative. Rule 37 is thus of critical importance
in the
litigation process. This is why this court has held that in the
absence of any special circumstances a party is not entitled
to
resile from an agreement deliberately reached at a rule 37
conference. And when, as in this, the agreements are confirmed by
counsel in open court, and are then made a judgment or order of a
court, the principle applies with even more force.”
[10]
In the case of Kruizenga quoted above, the Court continued and stated
the following:
“
it
is well established that to hold a principal liable on the basis of
the agent’s authority the representation must be rooted
in the
words or conduct of the principal, and not merely that of the agent.
Conduct may be express or inferred from the ‘particular
capacity in which an agent has been employed by the principal and
from the usual and customary powers that are found to pertain
to such
an agent as belonging to a particular category of agents’. It
may also be inferred from the ‘aura of authority’
associated with a position which a person occupies, at the
principal’s instance, within an institution.
Properly
understood the representation from the principal in this case relates
only to the appointment of the State Attorney to
defend the claim and
to instruct counsel in this regard. The further conduct relied on is
not that of the principal but of the
agent himself and cannot in and
of itself bind the principal. The respondents’ true case is
that by appointing the State
Attorney to defend the claim, the
appellant represented to them, and they reasonably believed, that the
State Attorney had the
usual and customary powers associated with the
appointment. These included instructing counsel to defend the claim,
to draft the
plea and to attend all pre-trial procedures, including
rule 37 conferences. In other words the appellant represented to the
respondents
and the outside world that the State Attorney had the
authority not only to conduct the trial but also to make concessions
at the
conferences and to conclude the settlement agreement from
which he now wishes to resile.”
[11]
In the case of
Tolstrup NO v Kwapa NO
2002 (5) SA 73
(W)
the
Court stated the following:
“
where
parties have agreed that the merits and the quantum of a dispute are
to be separately determined, and the defendant afterwards
concedes
the merits, which concession is accepted by the plaintiff, the
parties have reached an agreement of compromise (transactio).
By
compromising the merits the defendant precludes himself from being
able to revisit the merits as surely as if a judgment had
been given
thereon.
The
concession on the merits is more than an admission; it is an
agreement of compromise on that part of the action from which not
even a court could release one party without the consent of the
other.”
[12]
In the Rule 37 conference the applicant responded to the following
submission as follows:
“
that
the collision which forms the subject matter of this action was
caused solely by the negligent driving of the insured driver,
who
caused the death of Mr M., the deceased.
Defendant’s
Answer: agreed.”
[13]
I am unable to disagree with counsel for the respondents that an
agreement was reached between the parties at the Rule 37 conference
from which agreement the applicant cannot be resiled without the
consent of the respondents. I hold the view that the applicant
did
not make an admission on a particular aspect on the merits of the
case but made an offer conceding the merits which offer was
accepted
by the respondents. Although the offer was not made in terms of Rule
33 (4) nor was it made an order of Court, it was
confirmed before the
Judge at the judicial pre-trial that the matter was to proceed only
on computation of the quantum of the dependants’
claim. It is
my respectful view therefore that the applicant is precluded from
withdrawing from the agreement it concluded with
the respondents in
the Rule 37 conference.
[14]
I am mindful of the fact that the applicant is acting in a fiduciary
capacity and has the duty to protect public funds. At
the same time
the applicant has a duty to compensate road accident claimants
fairly, reasonably and without delay. The applicant
cannot escape
liability on the basis that its attorneys acted without a mandate. It
is on record that the attorney was instructed
to handle more than 40
files/matters of the applicant which were scheduled for trial around
the time the rule 37 conference was
held. It is on record that the
attorney had instructions from the applicant to concede and settle
merits in most of the files.
[15]
It is my considered view that the applicant cannot resile from the
agreement concluded by its attorney since it presented to
the
respondents and to the outside world that its attorney has the
necessary authority not only to conduct the trial but also to
make
concessions at the conferences preceding the trial such as the rule
37 conference which is part of the trial procedures.
[16]
I find myself in disagreement with counsel for the applicant that the
attorney made an error when he made the concession in
the rule 37
conference. The attorney continued in front of the Judge in the
judicial pre-trial that the merits of the matter are
not in issue but
only the quantum stands to be determined. Further, it is my view that
attorneys do not just concede merits without
investigating the
matter. There is nothing before this Court which suggests that the
merits of this case were different and complicated
that the attorney
mistook it for another matter. There is no cogent reason placed
before this Court as to how the attorney made
the mistake.
[17]
I am satisfied that the attorney, having been ceased with the matter
for some time, assessed the merits of the matter and was
satisfied
that the merits cannot be an issue in this case. The attorney
deliberately made the concession in both pre-trial conferences
and
allowed the matter to proceed only for the determination of quantum
in the trial.
[18]
I cannot agree with the counsel for the respondents that the
applicant should be mulct with a punitive costs order for bringing
an
application of this nature. I am unable to find any mala fides on the
part of the applicant in bringing this application for
the withdrawal
of an admission.
[18]
In the circumstances, I make the following order:
I.
The
application is dismissed;
II.
The
applicant is liable to pay the respondents’ costs of both the
application and counter-application.
_______________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing:
13 February 2018
Date
of Judgment:
22 February
2018
For
the Applicant:
Advocate:
W J van WYK
Instructed
by:
DIALE ATTORNEYS
TEL: 011 433
1266
For
the Respondent:
Advocate: D GOODENOUGH
Instructed
by:
VAN DER ELST INC
TEL: 011 731
0000