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[2010] ZAGPPHC 37
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Jwili v Road Accident Fund (2009/12886) [2010] ZAGPPHC 37; 2010 (5) SA 32 (GNP) (6 May 2010)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2010-05-06
Case Number:
2009/12886
In the matter between:
LUCAS NEO JWILI
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
SOUTHWOOD J
[1]
The
plaintiff claims from the defendant payment of damages in the sum of
R870 000 suffered as a result of the bodily injuries which
he
sustained when he was run over by a motor vehicle on 23 December
2005. On 15 February 2010 Rabie J, acting in terms of Rule
33(4),
ordered that the trial proceed on 4 May 2010 on the issue of the
defendant’s liability and that the trial in respect
of all
other issues be postponed. On 4 May 2010 Van der Merwe J appointed
Adv. Rob Allan Foden as
curator
ad litem
for
the plaintiff.
[2] In paragraph 4
of his particulars of claim the plaintiff alleged that at
approximately 20h45 on 23 December 2005 and on the
Hartbeesfontein-Coligny Road, a motor vehicle collision occurred
between motor vehicle with registration BDF454NW, driven by Mr.
K.D.
Mbane (‘the insured driver’) and the plaintiff who was
lying in the road at the time. In paragraph 5 the plaintiff
set out
the respects in which the insured driver was negligent in causing the
collision;
inter
alia
that
Mr. Mbane failed to keep a proper look-out; that he travelled at an
excessive speed and that he failed to apply the brakes
of his motor
vehicle timeously or at all. In its plea to paragraph 4 the
defendant stated that it had no knowledge of the allegations
and put
the plaintiff to the proof thereof and in regard to paragraph 5 the
defendant denied that the driver of the insured vehicle
was negligent
and that any negligence on his part caused the collision. In the
alternative the defendant alleged that –
‘In the event that the above
Honourable Court finds that the insured driver was negligent (which
is still denied) then and
in that event the Defendant pleads that
such negligence did not in any way contribute to the said collision,
which was caused solely
by the negligence of the Plaintiff who was
negligent in one or more or all of the following respects:
5.3.1 He failed to keep a proper
lookout;
5.3.2 He travelled at an excessive
speed in the circumstances;
5.3.3 He failed to avoid the collision
when by the exercise of due and reasonable care he could and should
have done so;
5.3.4 He failed to take cognizance of
the insured driver’s actions or intended actions;
5.3.5 He failed to take into
consideration the presence of other road users and in particular to
the insured vehicle;
5.3.6 He cycled on a wrong side for
cyclists;
5.3.7 He failed timeously or at all,
stop his bicycle whilst he could and should have done so’
Finally, in the further alternative
the defendant alleged –
‘In the event that it is found
by the above Honourable Court that the insured driver was negligent
(which is still denied)
and that such negligence contributed to the
said collision (which is denied) then and in that event the Defendant
pleads that the
negligence of the Plaintiff was a contributory factor
to the cause of the collision and pleads that any damages awarded to
the
Plaintiff be reduced in accordance with the apportionment of
damages of Act 34 of 1956’
[3] In the minute of the pre-trial
conference held on 29 April 2010, three days before the trial, the
defendant’s attorney,
Mr. A.P. Ntimbana (of the firm T.M.
Chauke Attorneys) was asked to admit paragraph 4 of the particulars
of claim as well as paragraph
9 and answered that the defendant would
revert. Apparently the defendant did not revert and neither
paragraph was admitted.
[4] The plaintiff
did not testify and called only one witness, Mathusho Johannes
Selebalo, a Warrant Officer in the South African
Police Service. His
evidence was not seriously disputed and no version was put to him.
Accordingly the plaintiff closed his case.
The defendant then closed
its case without calling a witness. The court refused the
defendant’s application to recall Warrant
Officer Selebalo so
that the insured driver’s version could be put to him. The
insured driver inexplicably arrived at court
on the 5
th
of May 2010, the day after Warrant Officer Selebalo had testified and
been excused from further attendance at the court. During
Warrant
Officer Selabalo’s evidence the defendant formally admitted
that it was the plaintiff who Warrant Officer Selebalo
found lying in
the road and was struck by the vehicle. Before the plaintiff closed
his case the defendant also formally admitted
that the driver of the
insured vehicle was K.D. Mbane and that he had been driving motor
vehicle with registration BDF454NW and
that the statement at p22-29
of exhibit A is the insured driver’s statement.
[5] The facts are
very simple. At about 20h45 on 23 December 2005 Warrant Officer
Selebalo was travelling along the Hartbeesfontein-Coligny
Road in the
direction of Tigane township. It was dark but the road was
illuminated by street lights on Warrant Officer Selebalo’s
right hand side of the road. (These are visible in photograph 2 at
p10 of exhibit A). The road is tarred and carries two lanes
for
traffic, one in each direction. (This also appears from the
photographs at p10 of exhibit A.) Warrant Officer Selebalo saw
a man
lying in the middle of the lane in which he was travelling. He took
evasive action and managed to avoid colliding with the
man. He
pulled off the road onto the gravel verge on his left and then
executed a U-turn and drove back in the direction from
which he had
come and stopped next to the man. He switched on the hazard lights
of his vehicle to warn oncoming traffic and went
to see what was
wrong with the man. He saw that he was alive but did not examine him
further. He saw other vehicles approaching,
travelling in the same
direction as he had been travelling. He realised that they could
collide with the man and he positioned
himself in the road between
the oncoming vehicles and the man. He signalled to the driver of the
first oncoming vehicle, a Venture,
that he must slow down and the
driver did so and passed safely by on the gravel verge. He also
signalled to the driver of the
second vehicle, a Combi, which was
travelling about a hundred metres behind the Venture. The driver of
the Combi first slowed
and then accelerated. He did not swerve and
Selebalo was forced to jump out of the way. The vehicle continued
straight and ran
over the man and something on the vehicle hooked
onto him and the vehicle dragged him some distance before it came to
a halt.
Selebalo could see the man’s head bouncing up and down
on the road. Warrant Officer Selebalo also heard screams from the
passengers in the vehicle before it came to a halt. After it stopped
another policeman arrived on the scene and took charge.
Selebalo
then left. The speed limit on that stretch of the road is 60
km/hour.
[6] The insured driver’s
statement reads as follows:
‘Op
2005-12-23 om ± 21h00 was ek die bestuurder van ‘n taxi
met registrasienommer BDF454NW. Ek het vanaf Hartbeesfontein
na
Tigane gery in die rigting van Tigane. Dit was donker. Ek het
passasiers gehad maar ken hulle nie.
Daar het ‘n
Venture voor my gery. Ek het gesien dat daar ‘n voertuig regs
van die pad staan met sy noodflikkerligte
aan. Die Venture het
skielik links uitgeswaai en ek het gesien dat daar ‘n persoon
in die pad lê. Ek het gerem maar
dit was te laat en ek het oor
die persoon gery. Die persoon is ‘n ent saam onder die kombi
gesleep. Ek het uitgeklim en
die polisie het later opgedaag.
Ek het nie gesien
dat iemand my probeer stop nie. Dit het te vinnig gebeur en ek kon
nie gou genoeg stop om ‘n botsing te
vermy nie. Die Venture
het aanhou ry. Dit was donker en daar was nie ligte langs die pad
nie. Ek is in besit van ‘n bestuurderslisensie
nommer
02/6504015362085, Kode 1’
This statement was made at 12h00 on
11 January 2006.
[7] The plaintiff
has therefore proved that at the time and place alleged in the
particulars of claim motor vehicle with registration
BDF454NW
collided with the plaintiff while he was lying in the
Hartbeesfontein-Coligny road and that this took place in the
circumstances
testified to by Warrant Officer Selebalo. I should
record that Selebalo testified in English and while he had no
difficulty in
expressing himself generally, he had difficulty in
answering questions about distances which he could not point out in
the court.
I do not accept the accuracy of all the longer distances
he testified to. I regard his impressions about these distances as
more
important and conclude that the insured driver had sufficient
opportunity to see the plaintiff lying in the road and avoid
colliding
with him. There is no indication that Warrant Officer
Selebalo did not think so. He gave his evidence clearly and
coherently
and in a balanced and unemotional manner.
[8] The evidence
shows that the road is illuminated; that the speed limit is 60km/h;
that Warrant Officer Selebalo saw the plaintiff
lying in the road
and was able to avoid a collision with him and that the driver of the
Venture was also able to see the plaintiff
and avoid a collision.
The insured driver obviously saw something wrong at the scene but did
not take any steps to avoid a collision
with the body in the road.
In my view he was negligent in one or more or all of the respects
referred to earlier.
[9] In argument,
the defendant’s counsel did not contend that Mr. Mbane was not
negligent and only attempted to persuade the
court that the plaintiff
was contributorily negligent. He relied only on the principle of
volenti
non fit iniuria
(see
Netherlands
Insurance Co of SA Ltd v Van der Vyver
1968
(1) SA 412
(A)
)
which is not applicable on the facts of the case and he could not
suggest why the plaintiff should be found to have been negligent.
In
my view such a finding is not justified and I find that the plaintiff
was not negligent.
[10] Costs must clearly follow the
result. The question is whether a special costs order should be made
against Mr. Ntimbana, the
defendant’s attorney in terms of Rule
37(9)(a)(ii). The Rule provides that –
‘At the hearing of the matter,
the court shall consider whether or not it is appropriate to make a
special order as to costs
against a party or his attorney, because he
or his attorney –
(ii) failed to a material degree to
promote the effective disposal of the litigation.’
[11] The strange
allegations in the defendant’s plea have already been referred
to. Apart from the fact that it is contradictory
to deny all
knowledge of the collision alleged and then positively allege that
the plaintiff was negligent in a number of respects
it appears from
the answers provided by Mr. Ntimbana, the author of the plea, through
the defendant’s counsel, that he had
no instructions as to what
to plead and that he had simply used a standard form of plea which
was necessary because the defendant
had received a notice of bar. (A
notice of bar was delivered on 29 April 2009 and the defendant
delivered its plea on 2 May 2009).
He claimed that the reference to
a bicycle in the plea is a
bona
fide
error
which he did not notice when he signed it. Mr. Ntimbana confirmed
that he was not in possession of copies of the statements
in the
police dossier (which constitute exhibit A) or a statement from a
witness and that he had not consulted with Mr. Mbane.
When it was
suggested that the plea is a fabrication Mr. Ntimbana said it was
necessary to file a plea to avoid being barred.
[12] With regard to
the defendant’s failure to admit the allegations in paragraph 4
of the claim Mr. Ntimbana said that he
could not get instructions
from the defendant. He also said that when instructed by the
defendant the defendant did not furnish
him with copies of the
statements in the police dossier. He clearly made no attempt to
obtain copies of the statements himself.
It is common cause that
statements were available as the police dossier containing all the
statements was made available on the
morning of 4 May 2010. Mr.
Ntimbana’s inability to get instructions from the defendant
persisted right up to the morning
of the trial. Mr. Ntimbana
obviously did not consider withdrawing as attorney of record as he
should have done. According to
Mr. Ntimbana, the claims handler at
the Menlyn office of the defendant responsible for this case is a Mr.
Sibongele Dondashe and
he was unresponsive or not available. The
defendant’s counsel informed the court that both he and Mr.
Ntimbana had advised
the defendant that there was no defence to the
plaintiff’s claim and Mr. Ntimbana informed the court that he
was instructed
not to run a trial which he understood to mean that he
should settle the case. According to the defendant’s counsel
who
was only briefed on the morning of 4 May 2010 he understood that
there was an instruction to settle the merits on the basis of an
apportionment of 75 % to 25 % in favour of the plaintiff. When that
proposal was not accepted the claims handler (inexplicably)
was not
available to give further instructions.
[13] It is clear
that the defendant did not prepare for a trial. No answers to the
questions asked at the pre-trial conference
were provided, no witness
was consulted and no documents relevant to the merits were obtained.
It appears that when no instructions
were forthcoming Mr. Ntimbana
decided to seek a postponement of the trial and tendered the costs of
the postponement. (This application
was refused for reasons given at
the time. There was simply no merit in the application.) Usually I
would have great difficulty
in accepting that the claims handler
would not be available to provide instructions, particularly on the
morning of a trial, but,
regrettably, I must accept that it is not so
improbable that it must be rejected. This was the third of the
trials I was allocated
on 4 May 2010: all involved claims against
the Road Accident Fund. The first trial settled in the time it took
for the advocates
to walk from the roll call to my chambers and I was
told that the defendant’s counsel had only just received
instructions
from the Road Accident Fund. The second trial settled
minutes before I went into court, again because the Road Accident
Fund had
delayed giving its instructions. On both occasions I was
told that the attorneys had had great difficulty in obtaining
instructions
from the Road Accident Fund. Nevertheless I consider
that Mr. Ntimbana’s conduct of the case failed to a material
degree
to promote its effective disposal. First, if his client did
not provide him with the relevant statements he should have obtained
them himself. He would then have seen that the defendant had no
defence and advised the defendant accordingly. The failure to
obtain
this information is inexcusable and in my view probably resulted in
the matter proceeding to trial when it never should
have done so.
Second, the plea filed by Mr. Ntimbana is a fabrication. Mr.
Ntimbana had no facts on which to even deny the plaintiff’s
allegations let alone make positive allegations about the plaintiff’s
negligence. The fact that he was under pressure because
of the
notice of bar is no excuse. A legal practitioner has a duty to the
court, not only to his client, and must not misrepresent
facts to the
court. If Mr. Ntimbana had no instructions and could not obtain an
extension of time to file the plea he should have
refused to file a
plea and withdrawn from the case. Third, Mr. Ntimbana clearly did
nothing to prepare for trial after he filed
the plea in May 2009.
Mr. Ntimbana did not answer the plaintiff’s attorney’s
request to separate the issues in terms
of Rule 33(4) and the
plaintiff brought a substantive application for such relief which was
not opposed. The plaintiff was also
obliged to bring an application
to compel the defendant to make discovery. More importantly, Mr.
Ntimbana did not obtain copies
of the statements in the police
dossier or consult with the witnesses. Mr. Ntimbana does not appear
to have given any thought
to withdrawing from the case and I am
driven to the conclusion that this was simply because he continued to
earn fees while he
remained in the case. Win or lose, whether or not
he conducted the case indifferently or well, he would still be paid
by the defendant.
[14
] Mr.
Ntimbana is clearly not entitled to a fee for conducting the case and
if he or his firm has received a fee for doing so thusfar
it must be
repaid. I shall make an order to that effect.
[15
] I
have given serious consideration to making an order that Mr. Ntimbana
alone pay the costs of the hearing (i.e.
de
bonis propriis
)
in
terms of Rule 37(9)(a)(ii). While I am satisfied that the Rule
applies I am not satisfied that this could not be prejudicial
to the
plaintiff. Mr. Ntimbana may not be able to pay the costs and if that
proves to be the case the plaintiff would be out of
pocket. While I
do not wish to make an order against the defendant as I consider that
the claims handler was responsible, in part,
for the manner in which
the case was conducted, the plaintiff is entitled to his costs and
the defendant is clearly the party who
can pay. I shall therefore
order that the costs of the hearing be paid by the defendant and Mr.
Ntimbana, jointly and severally,
the one paying the other to be
absolved.
[16] I am loath to
make an order for costs against the defendant because of the conduct
of its claims handler Mr. Sibongele Dondashe
but I am unable to find
a way to make him liable for the costs of this hearing which have
been unnecessarily incurred. I shall
nevertheless order that the
registrar send a copy of this judgment to the Road Accident Fund to
investigate his conduct.
[17
] The
plaintiff requested that the costs include the qualifying fees of
Prof. Lemmer who is an expert in accident reconstruction.
I do not
consider that the involvement of such an expert is reasonable in the
circumstances of this case and I am not prepared
to make such an
order. The plaintiff did not press the matter and attempt to justify
Prof. Lemmer’s appointment.
Order
[18
] I It
is declared that the defendant is liable for 100 % of any damages
which the plaintiff is able to prove;
II The defendant
and Mr. A.P. Ntimbana, the defendant’s attorney, of the firm
T.M. Chauke Attorneys, are ordered to pay the
costs of this hearing
jointly and severally, the one paying the other to be absolved;
III Mr. A.P.
Ntimbana, the defendant’s attorney, and his firm T.M. Chauke
Attorneys, are not entitled to receive any fees
for the conduct of
this case from the date of his appointment until the date of this
judgment. Any fees which he or the firm have
received prior to the
judgment must be repaid to the defendant within 6 weeks of this
order. Proof of such payment in the form
of an affidavit must be
filed with the registrar of this court within 10 days of payment;
IV The registrar is
request
ed
and directed to send a copy of this judgment together with copies of
the pleadings and exhibit A to the President of the Law
Society of
the Northern Provinces to investigate Mr. Ntimbana’s conduct of
this case in the light of this judgment;
V The registrar is requested and
directed to send a copy of this judgment to the head of the Road
Accident Fund to investigate the
conduct of this case by Mr.
Sibongele Dondashe in the light of this judgment.
______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO:
2009/12886
HEARD
ON: 4 May 2010 and 5 May 2010
FOR
THE PLAINTIFF: ADV. A.G. HORAK
INSTRUCTED
BY: G.W. Wolter of Adams & Adams
FOR
THE DEFENDANT: ADV. P.L. UYS
INSTRUCTED
BY: Mr. A.P. Ntimbana of TM Chauke Attorneys
CURATOR
AD LITEM:
ADV.
R.A. FODEN
DATE
OF JUDGMENT: 6 May 2010