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[2010] ZAGPJHC 52
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Road Accident Fund v Ramalebana (A5019/09) [2010] ZAGPJHC 52 (25 June 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
A5019/09
In the matter between:
THE ROAD
ACCIDENT FUND
Applicant
and
RAMALEBANA
MOSES
Respondent
J U D G M E N T
KATHREE-SETILOANE, AJ
:
[1]
This
is an application for reinstatement of a lapsed appeal. The
applicant (the Road Accident Fund) was the unsuccessful defendant
in
an action for damages, brought by the respondent against it, for
injuries sustained by the respondent’s minor child who
was a
victim of a motor vehicle collision, which occurred on 10 November
2003. The Court
a
quo
(Coetzee AJ) granted judgment for the respondent, on 25 March 2009,
in the amount of R3 356 564, 00 plus interest thereon at the
rate of
15, 5% per annum from date of judgment to date of payment.
[2] The
applicant brought an application for leave to appeal and, on 22 May
2009, Coetzee AJ granted leave to appeal to the Full
Bench of this
Division. The applicant delivered its notice of appeal on 22 June
2009, but failed to make written application to
the Registrar for a
date for the hearing of the appeal within 60 days of delivery of the
notice of appeal, and the appeal lapsed
on 15 September 2009. The
applicant then brought the application for reinstatement of the
lapsed appeal a full month after this
date.
[3] Rule
49(6)(a) of the Uniform Rules of Court (“
the
Rules
”)
provides that within 60 days after delivery of a notice of appeal,
the appellant must make written application to the Registrar
for a
date for the hearing of that appeal, and if no such application is
made, the appeal will be deemed to have lapsed. Rule
49(6) (b) of
the Rules, in turn, provides that the court to which the appeal is
made may, on application and upon good cause shown,
reinstate a
lapsed appeal. This is the relief which is sought by the applicant
in this application.
[4] In
United
Plant Hire v Hills
1976 (1) SA 717
(A), the Appellate Division, in considering the
factors that a court will look at in an application for reinstatement
of a lapsed
appeal, stated (at 720F-G) that:
“
It
is well settled that, in considering the application for condonation,
the court has discretion, to be exercised judicially upon
a
consideration of all the facts; and that in essence it is a question
of fairness to both sides. In this inquiry, relevant considerations
may include the degree of non-compliance with the rules, the
explanation therefore, the prospects of success on appeal, the
importance
of the case, the respondent’s interests in the
finality of the judgment, the convenience of the court, and the
avoidance
of unnecessary delay in the administration of justice. The
list is not exhaustive.
These
factors are not individually decisive
but
are inter-related and must be weighed one against the other; Thus a
slight delay and a good explanation may be held to compensate
for
prospects of success which are not strong.
”
[5] T
he
applicant’s explanation for the lapsed appeal is set out in an
affidavit deposed to by its attorney, Ms Nompumelelo Portia
Banda
(“
Ms
Banda
”)
of the firm Mabunda Incorporated. Ms Banda explains that in
anticipation of the application for leave to appeal being
successful
she applied for a trial record, on 23 April 2009, and was furnished
with a quotation from LOM (Pty) Ltd (“
LOM
”).
In mid-May she was furnished with a partial record of the trial, the
last two days having been omitted. She then requested
a complete
record from LOM. LOM subsequently advised her that they had found
records that might relate to the last two days of
the trial, and
requested her to visit their office in order to review the
proceedings, which she did.
[6]
On
her visit to the LOM office, she was informed that the person dealing
with the transcripts was not in. She then returned to
the LOM
offices on 22 May 2009, the day that the application for leave to
appeal was heard, but was advised that the person dealing
with the
transcript was again not in. She then made repeated calls to LOM
requesting the missing portions of the record, and visited
their
offices for the last time on 22 June 2009, but to no avail.
[7] While
waiting for the appeal record, however, she did not apply for a date
for the hearing of the appeal as she was under the
mistaken and
bona
fide
belief that it was impermissible for her to apply for an appeal date
until she was in a position to file two copies of the complete
record, and that the appeal would not lapse until the full record was
available. She was apparently also unaware of Rules 49(7)(a)(i)
and
(ii) of the Rules in terms of which the Registrar may accept an
application for a date for the hearing of the appeal, where
copies of
the record are not ready at that stage provided that:
7.1 the application is accompanied by a written agreement between
the parties that the copies of the record may be handed in late;
or
7.2 failing
such agreement, the appellant delivers an application together with
an affidavit in which the reasons for his or her
omission to hand in
the copies of the record in time are set out, and in which is
indicated that an application for condonation
of the omission will be
made at the hearing of the appeal.
[8] The
appeal had in the meantime lapsed on 15 September 2009, but Ms Banda
only became aware of this on 2 October 2009 when advised
by the
respondent’s attorney in a letter of the same date. She
concedes that she is at fault, and asks this Court not to
punish the
applicant for her ignorance of the Rules as the applicant intended,
at all times, to prosecute the appeal.
[9] Mr Ancer,
appearing on behalf of the respondent, contended that the explanation
given by the applicant is both weak and bereft
of sufficient detail
as it fails to provide an explanation for what occurred between 22
June 2009, the last time that Ms Banda
contacted LOM, and 2 October
2009, the date on which she received a letter from the respondent’s
attorney advising her that
they were awaiting payment as the appeal
had lapsed.
[10] There is
much force in Mr Ancer’s contention that in the absence of a
reasonable explanation for what occurred during
this three and a half
month period, the only inference to be drawn is that the applicant’s
attorney did nothing to further
the finalisation of the appeal, and
was thereafter grossly negligent. Insofar as Ms Banda claims that she
is solely at blame and
that the applicant should not be penalised for
her ignorance of the Rules, our courts have held that whilst an
applicant should
not be prejudiced by his or her attorney’s
incompetence, there is a limit beyond which a litigant cannot escape
the results
of his or her attorney’s lack of diligence or
insufficiency of explanation tendered. (
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A) at 141C-E). In
Saloojee
(supra)
Steyn CJ pointed out that:
“
To
hold otherwise might have a disastrous effect upon the observance of
the Rules of this Court. Considerations
ad
misericordian
should not be allowed to become an invitation to laxity. In fact
this court has lately been burdened with an undue and increasing
number of applications for condonation in which the failure to comply
with the Rules of this Court was due to neglect on the part
of the
attorney. The attorney, after all, is the representative whom the
litigant has chosen for himself, and there is little
reason why, in
regard to condonation of the failure to comply with the Rule of
Court, the litigant should be absolved from the
normal consequences
of such a relationship, no matter what the circumstances of the
failure are.
”
[11]
Similarly, culpable inactivity or ignorance of the rules by an
attorney has been held, by our courts, to be insufficient ground
for
either the grant of condonation or reinstatement (
P
E Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980 (4) SA 794
(A) at 799B-H;
Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 131I-J;
Ferreira
v Ntshingila
1990 (4) SA 271
(A) at 281G-282A;
Blumenthal
and Another v Thomson NO and Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121C-122C;
Aymac
CC v Widgerow
2009
(6) SA 433
(WLD) at para [39]).
[12] Now
although Ms Banda candidly confessed her ignorance in relation to the
prosecution of an appeal, she was, nonetheless,
under a duty as the
applicant’s attorney to acquaint herself with the relevant
Rules of this Court (
Moaki
v Reckitt and Colman (Africa) Ltd and Another
1968 (3) SA 98
(A) at 101G-H;
Kgobane
and Another v Minister of Justice and Another
1969 (3) SA 365
(A) at 369
in
fin
to 370A;
Mbutuma
v Xhosa Development Corporation Ltd
1978 (1) SA 681
(A) at 685A. It is also well settled that whenever an
applicant realises that he or she has not complied with a Rule, he or
she
should apply for condonation without delay (
Rennie
v Kamby (Pty) Ltd
1989 (2) SA 124
(A) at 129F-G;
Ferreira
v Ntshingila
1990 (4) SA 271
(A) at 281D-E. This notwithstanding, Ms Banda waited
for almost a full month before applying for reinstatement of the
lapsed appeal,
and for this delay there is no explanation.
[13] Our
courts have also consistently held that the interest of the other
party in the finality of the matter is a further reason
why
condonation or reinstatement in the face of flagrant and gross
breaches of the Rules should not be granted. Holmes J in
Federated
Employers Fire and General Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360
(A) thus observed (at 363A):
“
The
late filing of a notice of appeal particularly affects the
respondent's interest in the finality of his judgment - the time
for
noting an appeal having elapsed, he is
prima
facie
entitled to
adjust his affairs on the footing that his judgment is safe; see
Cairns' Executors v
Gaarn
,
1912 AD 181
at p. 193, in which SOLOMON, J.A., said:
'After
all the object of the Rule is to put an end to litigation and to let
parties know where they stand.'
”
[14] The
attorney is the representative who the litigant chooses for himself
or herself. This is particularly so in the case of
the applicant,
which is a public entity seized with vast amounts of public funds
that need to be protected and dispensed of properly.
It thus goes
through a careful selection process when choosing a panel of
attorneys, to which it gives its work exclusively. In
the
circumstances, there is little reason for the applicant to be
absolved from the consequences of such a relationship, when that
attorney acts in flagrant breach of the Rules. Our courts have often
said that in cases of flagrant breaches of the Rules, particularly
where there is no acceptable explanation for such non-compliance, the
indulgence of condonation may be refused whatever the merits
of the
appeal are; this applies even where the blame lies solely with the
attorney (
Blumenthal
and Another v Thomson NO and Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121I-J;
Tshivhase
Royal Council and Another v Tshivhase and Another; Tshivhase and
Another v Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 859E-F.
[15]
It is
important to point out, in this regard, that the applicant’s
failure is not confined only to its non-compliance with
Rule 49(6)
(a) of the Rules, but extends,
inter
alia
,
to a failure to:
15.1
furnish a proper record as required in terms of Rule 49(7)(a) of the
Rules as the record furnished does not contain any exhibits
in the
case and, in particular, none of the medico-legal reports of the
expert witnesses;
15.2
comply with Rules 59(8) (a) and (b) of the Rules as the record was
not bound but furnished in loose pages;
15.3
comply with Rule 49(5)(15) of the Rules as it has failed to furnish
its heads of argument which were due, not later than 15
days before
the hearing of the appeal, on 23 April 2010; and
15.4
comply with the requirements of Chapter 7, paragraph 7, of this
Court’s Practice Manual, which provides that simultaneously
with the filing of heads of argument, counsel shall file a practice
note.
[16] On 9
April 2010, the respondent’s attorney sent a letter to the
appellant’s attorney advising of the inadequate
and improper
record to which the applicant did not reply. It is a serious
criticism of the applicant’s attorney that even
after being
advised by the respondent’s attorney of the inadequate and
improper record, her neglect of the observance of
the Rules was
persisted in, and she did nothing to remedy the situation. Likewise,
on 10 May 2010, the secretary to my brother
Lamont J enquired from
the applicant’s attorney whether the applicant’s heads of
argument were available. It was only
at this stage that the
applicant’s attorneys decided to brief counsel in order to
prepare the heads of argument, albeit that
they were already
hopelessly out of time.
[17] It
now emerges, from the affidavit of Mr Bloem, an attorney at Mabunda
Incorporated, that he only became aware of the reinstatement
application on or about 3 May 2010, and after Ms Banda had left the
employ of Mabunda Incorporated. Apparently Ms Banda had left
the
employ of Mabunda Incorporated on 30 April 2010, and had left the
file for his attention with an undated note requesting him
to “
deal
”
with the matter. What is, however, conveniently not explained in Mr
Bloem’s affidavit is why, and if Ms Banda only
left the employ
of Mabunda Incorporated on 30 April 2010, the heads of argument were
not filed on 23 April 2010, as required in
terms of the Rule.
[18]
Despite Mr Bloem having briefed counsel on 10 May 2010, the heads of
argument were only handed up to this Court, on 17 May
2010, at the
hearing of the application for reinstatement of the lapsed appeal.
[19] The
applicant’s problems do not, however, end here, as will become
apparent from an assessment of the applicant’s
prospects of
success in the appeal. Here, again, the application is defective.
Our courts have often stated that where application
is made for
reinstatement of a lapsed appeal, it is advisable, more particularly,
as in this case, where the explanation for the
lapsed appeal is
palpably wanting, that the applicant should set out briefly and
succinctly such essential information as may enable
the court to
assess the applicant’s prospects of success (
Meintjies
v H D Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 265C;
Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 131D-G). The sole averment made in this
respect, which is to be found in the applicant’s affidavit
supporting its
application for reinstatement, is that the “
applicant
has an excellent prospect of success on appeal
”.
[20] In
Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 131G-J, which concerned an application for
condonation of the late filing of a record on appeal, Hoexter JA
observed (at
131G-J) as follows:
“
In
applications of this sort the prospects of success are in general an
important, although not decisive, consideration. It has
been pointed
out (Finbrow Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein,
and Others
1985 (4) SA 773
(A) at 789C) that the Court is bound to
make an assessment of the petitioner’s prospects of success as
one of the factors
relevant to the exercise of the Court’s
discretion unless the cumulative effect of the other relevant factors
in the case
is such as to render the application for condonation
obviously unworthy of consideration. It seems to me that in the
instant case
the cumulative effect of the factors which I have
summarised in paras [1]-[5] above is by itself sufficient to render
the application
unworthy of consideration; and that this is a case
in which the court should refuse the application irrespective of the
prospects
of success.
”
[21] Now
although, in view of the cumulative effect of the applicant’s
flagrant and gross breaches of the Rules, it would
be unnecessary to
make an assessment of the applicant’s prospects of success on
appeal I, nevertheless, do so in order to
illustrate that the appeal
served no other purpose than to frustrate the legitimate claim of the
plaintiff to compensation for
wrongful injury, to his minor child,
caused by the driver of the insured vehicle.
[22] The
applicant’s primary ground of appeal is that Coetzee AJ erred
in concluding that the minor child sustained a head
injury from the
collision as: Ms Adan, the plaintiff’s neuropsychologist, was
not an expert to make such a diagnosis; she
drew conclusions that
were not within her field of expertise; in diagnosing the head injury
she depended on the medico-legal report
of the neurosurgeon who did
not give evidence, and whose report was not admitted into evidence;
and there was no evidence by a
neurosurgeon to confirm her diagnosis
of a head injury.
[23] A
glaring and obvious omission by the applicant during the trial was
that the applicant’s counsel did not, in cross-examination,
put
to any witness of the respondent that the minor child had not
sustained a head injury in the collision. This was, therefore,
never
an issue between the parties. The applicant’s criticism of Ms
Adan’s ability and expertise to testify, as she
did, was also
left unchallenged in cross-examination, thus causing Coetzee AJ, at
the end of the applicant’s cross-examination
of Ms Adan, to
alert the applicant’s counsel to her failure to challenge Ms
Adan’s evidence and to the consequences
thereof as enunciated,
by the Constitutional Court, in
President
of the Republic of South Africa v South African Football Union and
Others
2000 (1) SA 1
(CC) at paras [61] to [64] as follows:
“
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct.
”
[24] A
further difficulty impediment to the applicant’s contention is
that the evidence of Dr Harmse (the Industrial Psychologist),
the
sole witness to testify for the
applicant,
was that the minor child had sustained a head injury in the
collision. In the circumstances, I am satisfied that the
applicant
has no prospects of success on appeal.
[25] Now
quite apart from the fact that no reasonable explanation is proffered
by the applicant for the lapsed appeal, and that
it has no prospects
of success on appeal, the matter is also not one of particular
importance to the applicant. Whilst the appellant
is a public entity
seized with vast amounts of public funds that need to be protected
and dispensed of properly, in the broader
scheme, the amount of money
awarded to the respondent, though substantial when viewed from the
perspective of the needs of the
respondent and his minor child, is
not a substantial amount to the applicant. The minor child’s
very existence is at risk
if she does not receive the compensation,
which she is entitled to without delay. She should, therefore, not
have to wait for
the conclusion of an appeal that has no prospects of
success. Her interest in the finality of the judgment, accordingly,
far outweighs
that of the applicant.
[26] The
applicant is an organ of state established by section 2 of the Road
Accident Fund Act 56 of 1996 (“
the
Act
”).
Its object is to pay compensation in accordance with the Act for
loss or damage wrongfully caused by the wrongdoing of
drivers of
motor vehicles. The role of the applicant is to re-integrate victims
of road accidents into society from a health and
economic
perspective, and to protect wrongdoers and their families from
financial ruin. The applicant does this by paying the medical
and
related costs which are required to restore the accident victims to
health, compensating the victims or their families for
loss of income
or support as a result of the accident, and indemnifying the
wrongdoer from liability. In addition, it pays general
damages to
accident victims, which represent compensation for pain and
suffering, loss of amenities of life, disability and disfigurement,
as well as funeral costs to families in circumstances where the
victim of the accident sustains fatal injuries.
[27] Accordingly,
where the loss or damage is proved, the claimant is entitled to be
compensated without delay. However, despite
failing to adduce expert
evidence to counter the testimony of the respondent’s experts,
and to challenge core aspects of
the respondent’s case, the
applicant has sought to appeal the judgment of Coetzee AJ on grounds
that are frivolous and directed
at frustrating the legitimate claim
of the plaintiff. Not only does conduct of this nature lead to a
waste of public funds, but
it is also inconsistent with the
applicant’s constitutional obligations to act diligently, and
in a manner that ensures that
the rights of the respondent and his
minor child to receive compensation are realised without delay
(
Mlatsheni
v Road Accident Fund
2009 (2) SA 401
(ECD) at 405G-406J).
[28] The
indifference of the applicant, to the rights of the respondent and
his minor child, is exacerbated by the ineptness and
incompetence of
the attorney tasked with prosecuting the appeal. Although
regrettable, this conduct should not be allowed to recur.
In the
circumstances, I order that a copy of this judgment be served upon
the Chairperson of the Board of the applicant so that
appropriate
action can be taken against Ms Banda, and that the relevant officials
of the applicant be instructed to assess the
grounds for appealing
judgments against the applicant more conscientiously and diligently
so as to prevent the indifference, which
has been displayed by the
applicant and its attorney toward the rights of the respondent and
his minor child to receive compensation
without delay.
[29] In
the circumstances, the applicant’s application for
reinstatement of the lapsed appeal fails. In view of the conclusion
that I have arrived at in respect to the reinstatement application,
it is unnecessary to make a finding on the applicant’s
application for condonation of the late delivery of its heads of
argument in the appeal.
[30] In
the result the following order is made:
The
application for reinstatement is dismissed with costs, which costs
shall include the costs of the appeal.
_____________________________________
F
KATHREE-SETILOANE
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
______________________________
P
BORUCHOWITZ
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I
agree:
______________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL
FOR THE APPLICANT MR F SAINT
APPLICANT’S
ATTORNEYS MABUNDA INCORPORATED
COUNSEL FOR THE RESPONDENT MR B
ANCER SC
RESPONDENT’S
ATTORNEYS NOKUFA NELUHENI ATTORNEYS
DATE
OF HEARING 17 MAY 2010
DATE
OF JUDGMENT 25 JUNE 2010