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[2022] ZAECQBHC 1
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Van Der Linde NO obo M Robiyana v Road Accident Fund (1453/2021) [2022] ZAECQBHC 1 (15 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
Case No.: 1453/2021
Date Heard: 10
February 2022
Date Delivered: 15 March
2022
In
the matter between:
ADV
H J VAN DER LINDE NO
obo
M ROBIYANA
Excipient/Defendant
and
ROAD
ACCIDENT FUND
Respondent/Plaintiff
JUDGMENT
EKSTEEN
J:
[1]
The defendant, Advocate H J van der Linde
NO, raised an exception to a summons issued by the plaintiff, the
Road Accident Fund (the
RAF), and contended that it did not disclose
a cause of action and, in any event, was vague and embarrassing.
The RAF resisted
the exception.
[2]
The dispute has a lengthy and disturbing
history. Mr Robiyana had been seriously injured in a motor
vehicle collision and
Advocate van der Linde was appointed as the
curator ad litem
to assist him in a claim to recover damages from the RAF, under case
number 5741/2019. The claim was finalised, or so the
curator
ad litem
believed, on 18 June 2020,
when this court granted judgment in favour of Mr Robiyana. The
material portion of the judgment,
for purposes of the exception,
recorded:
“
Having
heard Adv A Frost and B Westerdale, Counsel for the Plaintiff, and Mr
Johnstone, Senior Manager for the Defendant, and having
read the
documents filed of record.
IT IS ORDERED (BY
AGREEMENT):
1.
The Defendant is hereby directed to pay
Plaintiff 100 % of his damages, as agreed upon between the parties,
arising from the bodily
injury sustained by the Patient in the motor
vehicle accident, which occurred on 22 April 2015, and at M17 Road,
Swartkops, Port
Elizabeth, Eastern Cape.
2.
The Defendant is to pay to Plaintiff in his
representative capacity the agreed sum of R11 489 922.00 in full and
final settlement
of Plaintiff’s claim for damages.
3.
…
4.
…
5.
Defendant shall furnish the Patient
(Sinesipho Robiyana) with an Undertaking in terms of Section 17(4)(a)
of the Road Accident Fund
Act, Act 56 of 1996, for 100 % of the cost
of future accommodation of the Patient in a hospital or nursing home,
or treatment of
or rendering of a service to the Patient, or
supplying of goods to the Patient, and as further detailed in the
reports filed by
the parties to date, arising out of the injuries
sustained by the Patient in the collision on 22 April 2015, after
such costs have
been incurred and upon proof thereof, such costs to
include the costs of a curator bonis, if any, as well as the costs of
security,
if required.”
[3]
Almost a year later, on 1 June 2021, the
RAF issued summons to set aside the order. As I have said, the
curator ad litem
raised an exception to its summons.
[4]
I
turn to the content of the pleadings. In its particulars of
claim the RAF alluded to various statutory provisions
[1]
which required of it to ensure that a system of financial management
and internal control was established. It then proceeded
to
allege:
“
4.1
The Plaintiff’s system of financial management and control
provided for a delegation of
powers and functions.
4.2.
In terms of the Plaintiff’s delegation of powers and functions
approvals of offers in respect
of merits and in respect of quantum of
claims respectively above R10-million and below R20-million required
approval of the Chief
Executive Officer.
5.
5.1
The Defendant instituted action against the Plaintiff under case
number 574/2019 in the
High Court of South Africa, Eastern Cape Local
Division, Port Elizabeth.
5.2
The Plaintiff obtained a High Court order on 18 June 2020 providing
for (amongst other relief)
payment of the amount of R11 489 922,00.
A copy is attached as
Annexure “POC 1.”
5.3
The granting of consent or agreement to the court order by employees
and/or representatives
was not approved by the Chief Executive
Officer of the Plaintiff.
6.
6.1
The lack of authority to consent or agree to the granting of the
court order nullifies any
consent or agreement to the granting of the
court order.
6.2
In the further premises the required approval process which was not
followed prior to the
granting of the court order renders the order
constitutionally invalid.”
[5]
Accordingly,
the RAF sought an order setting aside the court order dated 18 June
2020 and, in the alternative, an order declaring
that the order is
constitutionally invalid and is to be set aside.
[2]
The
curator
ad litem
responded with a notice in terms of rule 23 of the Uniform Rules of
Court (the rules of court) which culminated in the exception.
The curator, in taking exception, contended:
“
4.
In paragraph 5.3 of the particulars of claim the Plaintiff pleads
that ‘
The granting of consent or
agreement to the court order by employees and/or representatives was
not approved by the Chief Executive
Officer of the Plaintiff.’
5.
The Plaintiff fails to plead any particularity regarding when, where,
and who represented
the parties in relation to the
agreement/settlement made an order of court, and furthermore the
references to ‘
employees and/or representatives’
of the Plaintiff whose identity must be within the knowledge of the
Plaintiff, is insufficient and vague in the circumstances.
6.
As a consequence of the aforegoing, the particulars of claim are
rendered vague
and embarrassing for lack of particularity.
7.
In addition to the above, Plaintiff pleads in paragraph 4.2 as
follows:
‘
In
terms of the Plaintiff’s delegation of powers and functions
approvals of offers in respect of merits and in respect of
quantum of
claims respectively above R10-million and below R20-million required
approval of the Chief Executive Officer
.’
8.
The Plaintiff thus contends that approvals for offers in respect of
the merits
and quantum in the range pleaded requires approval of the
chief executive officer.
9.
In Paragraph 5.3 the Plaintiff pleads:
‘
The
granting of the consent or agreement to the court order by employees
and/or representatives was not approved by the Chief Executive
Officer of the Plaintiff
.’
10.
Nowhere does the Plaintiff plead that there is a requirement that
‘
the granting of consent or agreement to the court order’
must be approved by the Chief Executive Officer of the Plaintiff and
the requirement pleaded in paragraph 4.2 is self-evidently
different
as such relates to the approval of offers and not to agreement to the
wording of the court order which must
a
fotiori
be premised on a prior agreement.
11.
The Plaintiff also fails to plead any detail regarding any offer (or
prior agreement of
settlement), including:
11.1
when the offer was made;
11.2
who represented the Plaintiff in making the offer;
11.3
the terms of the offer;
11.4
that the Plaintiff’s Chief Financial Officer did not provide
approval for the offer;
11.5
whether the offer was accepted; and
11.6
if so, the terms of the settlement.
12.
In addition to this, the crux of the Plaintiff’s claim is set
out in paragraph 6 as
follows:
‘
6.1
The lack of authority to consent or
agree to the granting of the court order nullifies any consent or
agreement to the granting
of the court order.
6.2
In the further premises the required approval process which was not
followed prior to the granting
of the court order renders the order
constitutionally invalid.”
13.
The Plaintiff fails to allege any basis in fact or law that an
alleged lack of authority
to consent or agree to the granting of the
court order nullifies any consent or agreement to the granting of the
court order, or
for that matter, any facts or legal basis that would
render the court order constitutionally invalid.
14.
In particular in the aforementioned regard, the Plaintiff fails to
make any allegation that
if effect were given to the terms of the
court order, such would result in irregular expenditure or fruitless
and wasteful expenditure
or any losses, such not merely flowing from
the alleged absence of an approval by the Chief Executive Officer.’
[6]
It
is convenient first to address the exception on the ground that the
summons does not disclose a cause of action.
[3]
In order for a plaintiff to avoid a successful exception to its
summons it is required to allege every material fact (
facta
probanda
)
necessary to support the legal conclusion contended for with
sufficient clarity and completeness to entitle it to judgment, if
proved.
[4]
[7]
An
excipient who contends that the summons fails to disclose a cause of
action must establish that in all its possible meanings
it fails to
disclose a cause of action.
[5]
In a proper case legitimate inferences may be drawn as to the meaning
of the summons and a necessary implication may be supplied.
[6]
Thus, it has been held
that the tendency is to move away from formality to simplicity with
the result that, if it is reasonably
clear what the defendant is sued
for, in the absence of prejudice, technical objections will not be
upheld.
[7]
Finally, where
an exception is taken to a summons on the ground that it does not
disclose a cause of action the court may
look only at the summons.
Unless the grounds for the exception appear from the summons the
exception is bad in law.
[8]
[8]
I
turn to the grounds of the exception. The first ground
[9]
,
that the summons does not disclose a cause of action, is summarized
in paragraph 10 of the exception quoted earlier. At
the heart
of the argument is the assumption that the “consent or
agreement to the court order” is premised on an earlier
settlement agreement. No basis for this conclusion is evident
from the particulars of claim. The RAF’s case does
not
relate to the wording of a court order but, on any reading of the
summons, to the concession of the merits of the claim and
the quantum
of damages set out in the court order, which exceeded R10-million.
The summons should be understood to allege that
the “consent to
judgment” constituted a compromise, or
transactio
,
which had not been approved by the Chief Executive Officer of the RAF
and was therefore unauthorised. This is a perfectly
plausible,
if not obvious, interpretation to give to paragraphs 5, 6 and 7 of
the particulars of claim. If the
curator
ad litem
contends that an earlier settlement agreement was concluded, separate
from the consent to judgment, then it raises a factual dispute
that
should be pleaded and decided after evidence has been heard.
[9]
I
was referred in argument to the judgment in
Moraitis,
[10]
which contains a useful discussion of the legal principles at play in
a matter such as this. In
Moraitis
the
SCA referred to
Gollach
and Gomperts
[11]
where the following had been said:
“
A
transactio
,
whether extra-judicial or embodied in an order of court, has the
effect of
res
judicata
… It is obvious that, like any other contract (and like any
order of court), a
transactio
may
be set aside on the ground that it was fraudulently obtained.
There is authority to the effect that it may also be set
aside on the
ground of mistake, where the error is
justus
.”
[12]
[10]
In
Gollach
and Gomperts
the court had referred, with approval, to
Childerley
[13]
where the following had been said:
“
The
matter then before the court was an action to set aside a judgment
delivered in a defended case. Concerning judgments
entered by
consent, the learned Judge-President accepted that they could “under
certain circumstances”, be set aside
“on the ground of
just error”. It appears to me that the
transactio
is most closely equivalent to a consent
judgment … Such a judgment could be successfully attacked on
the very grounds which
would justify rescission of the agreement to
consent to judgment. I am not aware of any reason why j
ustus
error
should not be a good ground for
setting aside such a consent judgment, and therefore, also an
agreement of compromise, provided
that such error vitiated true
consent and did not merely relate to motive or to the merits of a
dispute which was the very purpose
of the parties to compromise.”
[11]
In
Moraitis
Wallis JA went on to explain that the
judgment (
Gollach and Gomperts)
could
not be taken to say anything more than that fraud or
justus
error
, where sufficient to set aside a
judgment, would also be sufficient to set aside a compromise that
gave rise to that judgment.
He accentuated, however, that where
the agreement was embodied in an order of court the order operates as
res judicata
.
Thus, unless and until the judgment has been set aside, there can be
no question of attacking the compromise agreement.
[12]
The
judgment in
Moraitis
proceeded, however, to distinguish an attack on a compromise
agreement from an alleged lack of authority to conclude the
settlement
agreement on behalf of a litigant. In the latter
circumstances a different principle comes into play, namely, that the
court
can only grant a consent judgment if the parties to the
litigation consented to the court granting it. If they did not
do
so, but the court was misled into thinking that they did, the
judgment must be set aside.
[14]
[13]
As adumbrated earlier, the proper
construction, or at least a plausible construction, of the summons is
that the consent to judgment
constituted a concession of the merits
and an agreement to the quantum. The consent to judgment
constituted the
transactio
.
The RAF did not seek to rely on any earlier separate
transactio
and its case was that the consent to judgment was not authorised.
It seems to me to be sufficiently clear that this is what
the
curator
ad litem
is sued for. In the
event that these facts are established at a trial the RAF will, in
the absence of any special defence
pleaded, be entitled to judgment,
at least to the extent that the order is set aside. I shall
revert to the constitutionality
issue.
[14]
Mr Nepgen, on behalf of the
curator
ad litem
, argued that setting aside the
judgment, without attacking the settlement, would leave the
underlying
transactio
unscathed and it would continue to operate as
res
judicata
. The contention misconstrues
the nature of the RAF’s case. The RAF did not seek to
attack a settlement agreement on
the grounds of fraud, duress,
misrepresentation, or the like. As Wallis JA explained in
Moraitis
:
“
In
those cases the injured party has an election to abide by the
agreement. When one is concerned with an absence of authority
to conclude the agreement in the first place, that is not a matter of
avoiding the agreement, but of advancing a contention that
no
agreement came into existence.”
[15]
If the order is set aside on the ground
that no underlying agreement existed the
curator
ad litem
is at liberty to proceed with
his case. The particulars relating to the
transactio
listed in paragraph 11 of the exception are entirely irrelevant to
the RAF’s case. Its case is that only the Chief
Executive
Officer could approve the
transactio
,
and he did not do so.
[16]
No
argument was presented to me in respect of the alleged constitutional
invalidity of the court order. I shall accept, for
purposes of
this judgment, that no facts or legal basis has been pleaded to
render the order constitutionally invalid. An
exception cannot,
however, be taken to one of multiple claims that are alleged to arise
from the same cause of action.
[15]
For these reasons the argument that the summons did not disclose a
cause of action cannot be sustained.
[17]
In
paragraph 4 to 6 of the exception the
curator
ad litem
contended that the lack of particularity regarding the settlement
agreement, or offer, renders the particulars of claim vague and
embarrassing. As I have said there is no foundation for the
contention that a separate, or different, settlement agreement
came
into existence prior to the consent to judgment. The RAF did
not rely on any contract for the relief it sought and the
provisions
of rule 18(6) of the rules of court, which requires of a party to set
out particulars of a contract relied upon, finds
no application.
Mr Nepgen referred me to
Wessels
[16]
as support for the contention that the summons must contain
sufficient particulars of the agreement to set aside the compromise.
However, the facts in
Wessels
were markedly different.
Wessels
was a case in which the plaintiff sought to attack the compromise
agreement on the ground of misrepresentation. As explained
in
Moraitis
the principle relied upon by the RAF is different.
[18]
For these reasons, the exception is
dismissed with costs.
J W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Excipient/Defendant:
Adv J Nepgen instructed
by Meyer Inc, Gqeberha
For
Respondent/Plaintiff:
Adv Ramabulana-Mathiba
instructed by Mpoyana Ledwaba Incorporated c/o
Rwexana Attorneys, Gqeberha
[1]
Section
50(1)
,
51
(1),
57
and
81
of the
Public Finance Management Act, 1 of
1999
.
[2]
A
number of ancillary orders were sought which are not material to the
exception.
[3]
Para
7-14 of the Exception
[4]
Dusheiko
v Milburn
1964 (4) SA 648
(A) at 658A;
Jowell
v Bramwell-Jones
and
Others
1998 (1) SA 836
(W) at 903A-B; and
Makgae
v Sentraboer (Koöperatief) BPK
1981
(4) SA 239
(T) at 245D
[5]
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A) at 183E;
Trustees
BUS Industry Restructuring Fund v Break Through Investments CC
and
Others
2008 (1) SA 67
(SCA) at 71;
Vermeulen
v Goose Valley Investments (Pty) Ltd
[2001] 3 All SA 350 (A).
[6]
Goosen
v Reed
1955
(2) SA 478
(T) at 481F
[7]
Goosen
at 481C-G; and
Joubert
v Impala Platinum Ltd
1998 (1) SA 463
(BH) at 471E.
[8]
Becks
in Theory and Principles of Pleading in Civil Actions
(6
th
ed) at 129 and the authority referred to therein.
[9]
Paragraph
7-13 of the Exception
[10]
Moraitis
Investments (Pty) Ltd and Others v Montic Diary
(
Pty)
Ltd
2017 (5) SA 508 (SCA)
[11]
Gollach
and Gomperts (1967)(Pty) Ltd v Universal Mills & Produce
Co (Pty) Ltd
and
Others
1978 (1) SA 914 (A)
[12]
Gollach
and Gomperts
at 922B-E
[13]
Childerley
Estate Stores v Standard Bank of South Africa Ltd
1924
OPD 163
[14]
Moraitis
at
para [17]
[15]
Dharumpal
Transport (Pty) Ltd v Dharumpal
1956
(1) SA 700
(A) at 706B-F
[16]
Wessels
v Badenhorst
1939 (TPD)