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[2010] ZAGPPHC 11
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Harmse v Road Accident Fund (63149/09) [2010] ZAGPPHC 11 (24 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO:63149/09
DATE:24/02/2010
In
the matter between:
HARMSE
F.A
Applicant
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
MAKGOKA,
J
:
[1]
The applicant approaches this court on an urgent basis, for interim
payment in terms of rule 34A of the Uniform Rules of Court.
The
application is opposed by the respondent.
[2]
The applicant suffered certain bodily injuries on 24 November 2008 as
a result of a motor vehicle collision. He was a driver
of one of the
two motor vehicles involved in the collision. It is alleged that the
sole cause of the collision was the negligent
driving of the insured
driver.
[3]
As a result of the said collision, summons was served on the
respondent for the recovery of the applicant's damages. The action,
which is pending before this court, is defended by the respondent.
[4]
Initially this application was brought as a normal motion, and was
set down for 24 November 2009. On the said occasion, the
matter was
postponed
sine
die,
and
the respondent was ordered to pay the wasted costs.
[5]
Subsequent thereto, on 17 December 2009, the applicant launched the
present urgent application, wherein the applicant claims
interim
payment from the respondent in an amount of R25 000. 00, as well as a
monthly payment of R2 500. 00 from 1 January 2010
until the
determination of the main action.
[6]
Rule 34A of the Uniform Rules provides:
"(1)
In
an action for damages for personal Injuries or the death of a person,
the plaintiff may, at any time after the expiry of the
period for the
delivery of the notice of intention to defend, apply to the court for
an order requiring the defendant to make an
interim payment in
respect of his claim for medical costs and loss of income arising
from his physical disability or the death
of a person.
(2)...
(3)...
(4)
If at the hearing of such an application, the court is satisfied
that-
the
defendant against whom the order is sought has in writing admitted
liability for the plaintiff's damages; or
the
plaintiff has obtained judgment against the defendant for damages to
be determined,
the
court may if it thinks fit but subject to the provisions of sub-rule
(5), order the defendant to make an interim payment of
suchamount
shall not exceed a reasonable proportion of the damages which in the
opinion of the court are likely to be recovered
by the plaintiff
taking into account any contributory negligence, set off or
counterclaim."
[7]
From the above, it is clear that a jurisdictional requirement for an
interim payment, is an admission of liability in writing
by the
respondent.
Is
there written admission of liability in the present case?
[8]
It is submitted on behalf of the applicant that there is. In support
of this submission, the applicant relies on a series of
settlement
negotiations, which culminated in the respondent making a written
offer of settlement on a 50% merits apportionment.
The high water
mark of the applicant's case in this regard, is an e-mail transmitted
on 4 September 2009 by the respondent's claims
handler, Mr. Kenneth
Mkhawane which reads:
"The
offer for 50% merits apportionment and pre-settlement undertaking has
been approved. Upon receipt of your merits acceptance,
we will sent
the undertaking limited to 50% via post to yourselves."
[9]
On 7 September 2009, the application's attorney responded to the 50%
apportionment offer as follows:
"As
per the meeting I confirm that I am not happy with the 50% merits
offer apportionment. I have pointed out numerous aspects
indicating
that the insured driver's version is not probable."
[10]
The same date, 7 September 2009, Marlize Joubert, apparently a senior
claims handler of the respondent, replied to the above
e-mail as
follows:
"
....I(f) you say that the insured driver's version is improbable ,
the same argument can be applied to your client's version.
I will
immediately proceed to consider the appointment of a reconstruction
expert and assessor to investigate further, which is
the procedure
tofollow when one is faced with contradictory versions."
[11]
On 3 December 2009, at the request of the respondent's attorney, the
applicant's settlement proposals were reduced to writing
and
transmitted to respondent's attorney.
[12]
On 9 December 2009, the respondent's attorney transmitted an e-mail
to the applicant's attorney, with the following content:
"I
have managed to speak to Adv. Bezuidenhout... He informed that we
cannot settle the merits for one part of the matter only.
If the
plaintiff cannot accept the merits in totality we unfortunately
cannot assist you in this matter"
[13]
From the exchange of the correspondence referred to above three
important aspects emerge. First, that the parties were clearly
engaged in genuine "without prejudice" negotiations.
Therefore those communications are privileged. The rationale for
the
privilege is public policy: parties are encouraged to avoid
litigation by resolving their differences amicably in full and
frank
discussions without fear that, should negotiations fail, any
admissions made by them during such discussions will be used
against
them in ensuing litigation. See
Kapeller
v Rondalia Versekeringskorporasie van SA Bpk
1964
(4) SA 722
(T) at 728F;
Naidoo
v Marine and Trade Insurance Co Ltd
1978
(3) SA 666
(A) at 677B-D, as well as
Tshabalala
v President Versekeringsmaatskappy Bpk
1987
(4) SA 73
(T) at 75H-76A.
[14]
The second aspect is that there is no consensus on the liability of
the respondent for the applicant's damages. This is confirmed
by the
respondent's statement that it considered appointing an accident
reconstruction expert to investigate the merits. To my
mind, this is
a clearest indication that the respondent had not accepted the
liability for the applicant's damages.
[15]
Thirdly, even assuming that the respondent, by its offer of a 50%
apportionment, had "admitted" liability for the
applicant's
damages, the said "admission" was rejected by the
applicant's attorney in the e-mail of 7 September 2009,
wherein it
was expressly stated that the attorney was
"not
happy with the 50% merits apportionment."
[16]
In my view, the applicant seeks to sit on two chairs, by rejecting
the respondent's "admission" of liability, while
simultenously seeking to base his rule 34A application on the very
same rejected "admission." The applicant should make
an
election between the two positions.
[17]
Mr.
du
Pisanie,
for
the applicant, contended that it was competent for the applicant,
solely for the purpose of rule 34A interim payment, to rely
on the
"admitted" 50% apportionment, and claim interim payment
thereon, while still at large to negotiate further on
the liability
and apportionment percentages, in the main action. I do not agree
with this contention. The provisions of rule 34A
(4) are clear, and
couched in peremptory terms: only in instances where the respondent
had admitted liability for the applicant's
damages, may a court order
interim payment. In my view, the rule envisages a clear, unequivocal
and unconditional admission of
liability for it to find application.
It clearly does not envisage a situation where, the parties being in
the process of settlement
negotiations, one party latches onto an
offer, and seek to enforce it in terms of the rule. An offer to
settle is, and remains
exactly that. It cannot be elevated to an
unequivocal admission of liability.
[18]
The argument of Mr
du
Pisanie,
if
sustained, would have far-reaching practical implications. Amongst
those would be that, once an offer is made in settlement
negotiations, in these types of claims, the applicant would be
entitled to an interim payment. It is common knowledge that in
practice,
the respondent, on a daily basis, makes offers in an
endeavour to settle claims. If the contents of such offers are to be
used
against the respondent for interim payment, it would most
certainly result in the respondent been discouraged to enter into any
settlement proposals at all. That would defeat the whole purpose and
spirit of "without prejudice" negotiations and offers,
as
provided in terms of rule 34A.
[19]
Given the above considerations, the application falls to be
dismissed. There remains the issue of costs. The applicant was
given
notice, contained in the answering affidavit of the respondent's
attorney, that a punitive costs order would be sought against
the
applicant. In argument, Mr.
Motsiri,
for
the respondent, persisted quite forcefully with this prayer. After
careful consideration, I am of the view that a punitive costs
order
is not warranted.
[20]
As a result I make the following order:
1.
The application is dismissed.
The
applicant is ordered to pay the costs of the application.
T.M.
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD :28 DECEMBER 2009
JUDGEMENT
DELIVERED: 31 DECEMBER 2009
FOR
THE APPLICANT : ADV P J DU PISANE
INSTRUCTED
BY :
MANONG
BADENHORST BOTMA
ATTORNEYS,
BOTHAVILLE,
AND
ROOTH
WESSELS MOTLA CONRADIE,
PRETORIA
FOR
THE RESPONDENT ; ADV SDK MOTSIRI
I
NSTRUCTED
BY :
MOTLHE
JOOMA SABDIA
INC,
PRETORIA