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[2012] ZAECPEHC 90
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Ralawe and Others v Road Accident Fund (2879/2001) [2012] ZAECPEHC 90 (6 December 2012)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
Case No: 2879/2001
In the matter between:
TEMBISA RALAWE
..............................................................................
First
Plaintiff
MZIYANDA RALAWE
......................................................................
Second
Plaintiff
NOLUVUYO GILLIE
.............................................................................
Third
Plaintiff
And
ROAD ACCIDENT FUND
..........................................................................
Defendant
Coram:
Chetty J
Date Heard:
19 November 2012
Date Delivered:
6 December 2012
______________________________________________________________
JUDGMENT
______________________________________________________________
CHETTY, J
[1] This matter featured on the civil
trial roll of cases set down for hearing on Monday, 5 November 2012.
The court file was conspicuously
sparse, containing merely the
particulars of claim, the plea, a notice to amend the plea, the
amended plea, a notice of removal
from the roll and a notice of set
down. The papers were not, as enjoined by the provisions of Practice
Rule 3(a), paginated or
indexed. Such dereliction of duty on the part
of the plaintiffs’ attorney would ordinarily have resulted in
the matter being
struck from the roll. Thus, when the attorneys
appearing for the parties reported to my chambers on the morning of
the hearing,
I raised the aforementioned infraction of Rule 3(a) by
the plaintiffs’ attorney, Mrs
Ndlovu
. Mr
van Rooyen
,
the defendant’s attorney, however prevailed upon me that given
the longevity of the matter, his intended adjuration to the
defendant
that an offer in settlement of the plaintiffs’ case be made and
the anticipated positive response, that the matter
stand down for
resolution later during the week to await the defendant’s offer
of settlement.
[2] I interpolate to say that the
salutary approach adopted by the defendant’s attorney militated
against me making an order
striking the matter from the roll for a
number of reasons, principally, the prejudice to the plaintiffs.
Although summons had been
issued on 5 December 2001, the appearance
to defend was only filed on 26 October 2005 and the plea, on 1
February 2006, more than
five (5) years later. During the intervening
period the litigation hibernated and was awoken from its slumber two
and a quarter
(2¼) years later by the filing of an amended
plea. On 31 March 2008 the defendant sought trial particulars which
were slothfully
furnished some four (4) months later. On 8 December
2008 the Registrar gave notice to the parties that the matter had
been placed
on the roll of cases for hearing on 10 February 2009. It
was however promptly removed from the roll at the instance of the
plaintiffs’
attorney, set down by the Registrar once more on 4
February 2011 and again summarily removed at the instance of the
plaintiffs’
attorney. On 8 March 2012 the Registrar once more
gave the parties notice that the matter had been placed on the civil
trial roll
on 5 November 2012. By then, the second and third
plaintiffs,
Mziyanda
and
Noluvuyo
, aged thirteen (13)
and ten (10) at the time of the collision, had long since passed into
adulthood. It is evident from the aforegoing
historical overview that
the prolixity of this litigation was occasioned by the laxity of the
plaintiffs’ attorney who permitted
the matter to stagnate to
the prejudice of the plaintiff and her minor children.
[3] On Wednesday
morning, Mr
van
Rooyen
and
advocate
Simoyi
,
now representing the plaintiffs on the instructions of attorney
Ndlovu
,
approached me in chambers and requested that the matter stand down
further to afford the plaintiffs an opportunity to consider
the offer
of settlement proposed by the defendant. I acceded to the request.
[4] On Friday
morning, Mr
van
Rooyen
and
advocate
Mabenga
,
now acting on behalf of the plaintiffs, approached me in chambers and
appraised me that the matter had become settled and requested
that
the settlement agreement, which she handed to me, be made an order of
court. Counsel informed me that her instructing attorney
had
concluded a contingency fee agreement with the plaintiffs and
furnished me with attorney
Ndlovu’s
affidavit made
pursuant to the provisions of s 4(1) of the
Contingency
Fees Act
1
(the Act). On
enquiry as to the whereabouts of the plaintiffs’ affidavit as
contemplated by s 4(2) of the Act, counsel’s
confounded
countenance bespoke her nescience of the provisions of s 4(2) and I
was left with the distinct impression that the plaintiffs
may not
have been consulted as regards the offer of settlement. However, on
the assumption that I was mistaken and that the plaintiffs
had been
so consulted but the affidavit from the first plaintiff inadvertently
not having been obtained, I stood the matter down
further for the
procurement of the envisaged affidavit and, in the interim, perused
attorney
Ndlovu’s
affidavit with
mounting anxiety.
[5] The affidavit
is replete with falsehoods. It is common cause that no medical
reports or opinions were either commissioned or
obtained by either
party. Notwithstanding, attorney
Ndlovu’s
deposition records
the following: -
“
b)
ESTIMATE
OF THE AMOUNT THAT MAY BE OBTAINED BY TAKING THE MATTER TO TRIAL
. . .
In regards to the
proposed settlement of the quantum of Plaintiff’s claims
herein, Counsel and I estimate that Plaintiff would
be at a real
risk, of not proving damages in excess of the aforesaid amount
offered on quantum, in
light
specifically of the contents of the medical records and reports filed
herein,
and
accordingly at risk in proceeding to trial and not accepting the
offer herein.
Accordingly,
in our estimate, there is no issue of any material compromise on the
quantum of Plaintiff’s claims, specifically
taking into account
the contents of the reports filed herein, including the reports of
Plaintiff’s own experts
.
(Emphasis supplied)
c)
ESTIMATE
OF CHANCES OF SUCCESS OR FAILURE AT TRIAL
I believe that it is
not in the Plaintiff’s interest to have pursued the matter
further in respect of the issue of both merits
and quantum of
Plaintiff’s claims, taking into account all the available
evidence, including Plaintiff’s instructions
as well as the
expert opinions herein
.
Further,
notwithstanding my investigation in this regard, no further witnesses
in respect of the issue of quantum could be found.
Accordingly, I
advised Plaintiff to accept the said offer.
The quantum of the
damages offered, as per the settlement herein, accords with the
quantum of damages that can be proved by Plaintiffs,
there is a real
risk of Plaintiff not proving damages to the any further extent (
sic
)
and accordingly I advised Plaintiff to accept the said offer.”
(Emphasis supplied)
[6] It is furthermore not in issue
that no Rule 37 conference was convened. Notwithstanding, the
affidavit contains the following
false averments: -
“
d)
OUTLINE
OF LEGAL PRACTITIONERS FEES OF THE MATTER IF SETTLED AS COMPARED TO
TAKING THE MATTER TO TRIAL
It was anticipated
at the pre-trial conference held between the parties that
the hearing would be
approximately two days.
In
the event of the matter proceeding to trial, Plaintiff would have to
call at least Two expert witnesses
in
addition to 3 lay witnesses,
and
further there were probably various expert witnesses employed by
Defendant,
who
it is anticipated would also have testified at the trial, and
accordingly if the action had proceeded extra costs would have
been
incurred, which would not have been justified in the circumstances.
Further, Plaintiff would also have been at risk if the
offer was
rejected, and to the extent that Plaintiff may have been liable for
Defendant’s costs, beyond the date of the said
offer of
Defendant, if the judgment obtained for damages was less than the
offer.”
(Emphasis
supplied)
[7] It will be gleaned from the
aforegoing that the affidavit contains a plethora of not only
inaccurate but false statements. Thus,
prior to the parties
presenting themselves as agreed at 14h15 for finalisation of the
matter, I instructed that attorney
Ndlovu
herself be present
and informed all present that given the obvious untruths in the
affidavit, I could not make the settlement agreement
an order of
court prior to an explanation being tendered by attorney
Ndlovu
thereanent and postponed the matter to Monday, 19 November 2012 for
that purpose.
[8] On Monday, 19 November 2012,
attorney
Ndlovu
intimated that she required further time to
comply with my instruction and, not to further prejudice the
plaintiffs, I made the
settlement agreement an order of court with
the imprimatur that attorney
Ndlovu
would be debarred from
levying any fees pursuant to the contingency agreement pending the
furnishing of an explanation as regards
her false affidavit. The
lamentable excuse subsequently furnished in her affidavit is
articulated thus: -
“
Any
error that is inconsistent with the file herein occurred as an
oversight rather than it being deliberate or negligent.”
[9] The perjurious content of the
affidavit deposed to in conformity with s 4(2) of the Act is
undoubtedly serious and obligates
me to refer the matter to the Law
Society and the Director of Public Prosecutions. In the result the
following orders will issue:
-
The settlement agreement concluded
between the parties, annexed hereto marked “A” is made
an order of court;
The registrar is directed to
forward a copy of this judgment and the contents of the court file
to the Cape Law Society, 29
th
and 30
th
Floors,
Absa Centre, 2 Riebeck Street, Cape Town, 8001 and the Director of
Public Prosecutions, Eastern Cape, 94 High Street,
Grahamstown,
6140.
_____________________
D. CHETTY
JUDGE OF THE HIGH COURT
1
Act
No, 66 of 1997