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[2020] ZAGPJHC 337
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B S v Road Accident Fund (20392/2018) [2020] ZAGPJHC 337 (2 July 2020)
SAFLII
Note:
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
CASE
NO: 20392/2018
In
the matter between:
B:
S PLAINTIFF
Versus
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by e-mail. The date and
time for
hand-down is deemed to be 10h00 on the 2
nd
of July 2020.
TWALA
J
[1]
Before this Court is an application for default judgment brought by
the plaintiff against the defendant whose attorneys withdrew
from the
matter since its mandate was terminated by the defendant. However,
the defendant has failed, knowing that the matter is
enrolled for
hearing, to appear to state its case before this Court.
[2]
The genesis of this case arises from an accident that occurred on the
16
th
of June 2015 in Soweto between motor vehicles bearing the
registration numbers C[…] GP and T[…] GP. The plaintiff
was the driver of motor vehicle T[…] GP at the time of the
collision. The plaintiff is suing the defendant for damages arising
out of personal injuries he sustained in the collision.
[3]
This Court was not informed of the exact date on which the
defendant’s attorneys withdrew from the matter nor is the
notice of withdrawal as attorneys of record filed on caselines.
However, I accept that the attorneys for the defendant have withdrawn
since the saga between the defendant and its panel attorneys is
common knowledge in this division. I have been given correspondence
between the attorneys for the plaintiff and the claims handler of the
defendant to the effect that the merits were settled in that
the
defendant is liable to pay 100% of the plaintiff’s proven
damages. Furthermore, the defendant tendered the certificate
in terms
of
section 17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
to
cover the future medical expenses of the plaintiff. The general
damages were settled in the sum of R650 000. The only
outstanding issue for determination by this Court is the loss of
earnings and to grant judgment by default. It is noteworthy that
the
summons has been amended on two occasion and the latest amendment was
effected on the 17
th
of June 2020, just three days before the hearing.
[4]
Advocate Swart for the plaintiff submitted that the defendant is
aware of the hearing of the matter today and all documents
and
bundles have been served on the defendant but it chose not to come to
Court. However, so the argument went, it was agreed between
the
parties at the case management conference on the 12
th
of November 2019 that the actuarial report be admitted in evidence.
Based on the actuarial calculation, it was contended, the Court
need
to take a median between scenario 1 and 2 and grant judgment by
default in the sum of R3 124 279.50 for loss of
earnings.
The total sum claimed and for which judgment by default is sought is
R3 768 258.50.
[5]
It was submitted further by Advocate Swart that, although the
amendment of the particulars of claim to the summons to claim
the
amount as it appears on the actuarial report does not comply with the
provisions of
Rule 28
, the Court has a discretion to order the
amendment and grant judgment on the basis of the amended particulars
of claim for the
plaintiff stands to suffer substantial prejudice as
compared to the defendant if default judgment is not granted.
Postponement
of the matter will delay its finalisation and more costs
will be incurred to the prejudice of the plaintiff.
[6]
In
Khunou
& Others v Fihrer & Son 1982 (3) SA (WLD)
the
Court stated the following:
“
The proper
function of a Court is to try disputes between litigants who have
real grievances and so see to it that justice is done.
The rules of
civil procedure exist in order to enable Courts to perform this duty
with which, in turn, the orderly functioning,
and indeed the very
existence, of society is inextricably interwoven. The Rules of Court
are in a sense merely a refinement of
the general rule of civil
procedure. They are designed not only to allow litigants to come to
grips as expeditiously and as inexpensively
as possible with the real
issues between them, but also to ensure that the Courts dispense
justice uniformly and fairly, and that
the true issues aforementioned
are clarified and tried in a just manner.”
[7]
In
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A)
which was quoted with approval in
Life Healthcare Group (Pty) Ltd
v Mdladla & Another (42156/2013) [2014] ZAGPJHC 20 (10 FEBRUARY
2014)
the court stated the following:
“
No doubt
parties and their legal advisers should not be encouraged to become
slack in the observance of the Rules, which are an
important element
in the machinery for the administration of justice. But on the other
hand technical objections to less than perfect
procedural steps
should not be permitted, in the absence of prejudice, to interfere
with the expeditious and, if possible, inexpensive
decision of cases
on their real merits.”
[8]
Rule 27 of the Uniform Rules of Court provides the following:
“
Extension
of Time and Removal of Bar and Condonation
(1)
…………………………
(2)
The
court may, on good cause shown, condone any non-compliance with these
Rules
[9]
I am unable to agree with Advocate Swart that I should exercise my
discretion and grant the default judgment for the prejudice
to be
suffered by the plaintiff outweighs that of the defendant. As
indicated above, I am not aware when exactly the attorneys
for the
defendant withdrew from the matter but certainly it was before the
17
th
of June 2020. However, it is apparent that the plaintiff’s
application for default judgment is based on an amendment which
was
only served by e-mail to the defendant three days before the hearing.
There is no cogent explanation proffered by the plaintiff
as to why
it sought to amend the particulars of claim this late when it had the
actuarial report in November 2019 already. The
amendment is quite
substantial and the defendant will, in my respectful view, suffer
substantial prejudice if judgment by default
were to be entered
against it without giving it an opportunity to deal with the proposed
amendment.
[10]
It was submitted by Advocate Swart that the minute of the conference
of the 12
th
of November 2020 contains the agreement admitting the expert reports
of the plaintiff and its actuarial report. However, the erstwhile
attorney of the defendant testified in its affidavit that the report
of its industrial psychologist was abandoned at that conference
leaving the report of the plaintiff’s industrial psychologist
uncontroverted. Based on the plaintiff’s industrial
psychologist’s report, the actuarial calculation in respect of
loss of earnings came to a figure of R1 661 870 whereas
the
figure for the loss of earnings is R2 924 819 based on the
industrial psychologist’s report for the defendant. Default
judgment is sought on the median figure between the two figures.
There is a third figure that comes into the mix which is brought
by
the first amendment which was in September 2019 in the amount of
R1.3m. I find myself in disagreement with Advocate Swart that,
owing
to the contradictory statements as to what was agreed upon on the
12
th
of November 2019, the Court should grant judgment by default on the
amount of R1 661 870 because the amendment that was
properly effected in September 2019 is for the sum of R1.3m and not
R1.6m
[11]
It is an established principle of our law that the plaintiff bears
the onus to prove its damages on a balance of probabilities.
In this
case, the plaintiff has put forth three different figures as the
amount of damages it suffered as result of the accident.
I am unable
to determine which of the three amounts is relied upon since there is
a dispute as to what was agreed upon in the case
management
conference of the 12
th
of November 2019. Furthermore, the filing of the amendment on the eve
of the hearing is suspicious in that it is served by e-mail
on a
defendant who is not represented by a legal representative and does
not encapsulate the terms of the agreement between the
erstwhile
legal representatives of the defendant and that of the plaintiff.
The ineluctable conclusion is therefore that
the plaintiff has
failed to discharge its onus of proving its damages.
[12]
In
R v Hepworth
1928 AD 265
at 277
the Appellate Division (as
it then was) stated the following:
“
A criminal
trial is not a game…… and the Judge’s position is
not merely that of an umpire to see that the rules
of the game are
observed by both sides. A Judge is an administrator of justice, he is
not merely a figure-head, he has not only
to direct and control the
proceedings according to recognised rules of procedure but to see
that justice is done.”
[13]
Furthermore, it is the duty of the Court not only to ascertain that
the litigants observe the rules of procedure and that no
litigant
takes advantage of another but also to ascertain that the interests
of justice are served in a fair manner between litigants.
I hold the
view therefore that, it will not serve the interests of justice to
grant default judgment when it is patently clear
that the plaintiff
is taking advantage of the situation the defendant finds itself in. I
therefore find that the application for
judgment to be entered by
default against the defendant falls to be dismissed.
[14]
In the circumstances, I make the following order:
The application for
judgment by default is dismissed.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing:
24
th
June 2020
Date
of Judgment:
2
nd
July 2020
For
the Plaintiff: Adv. L Swart
Instructed
by: Sonya Meistre Attorneys
Tel:
011 432 4113
For
the Defendants: In Default – Non Appearance