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2024
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[2024] ZAECQBHC 15
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Moyo v Road Accident Fund and Another (3719/2021) [2024] ZAECQBHC 15 (5 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
NOT REPORTABLE
Case No.: 3719/2021
In the matter between:
SANDRA
MOYO (formerly KAMBONJE)
Applicant
And
ROAD
ACCIDENT FUND
First Respondent
LANCE
JOHNSTONE
Second Respondent
JUDGMENT
EKSTEEN J:
[1]
This
matter has been contrived in an endeavour to set up an application
for contempt of court against the second respondent, Mr
Johnstone.
The applicant, Ms Moyo, had successfully sued the first respondent
(the RAF) and had obtained a monetary judgment
and an order that the
RAF provide an undertaking, in terms of s 17(4)(a) of the Road
Accident Fund Act
[1]
(the Act),
to pay for all future medical and related expenses as and when they
arise. The RAF has failed to give effect to
the judgment and Ms
Moyo now seeks what is essentially an interdict against Mr Johnstone,
in his personal capacity. No relief
is sought against the RAF,
against whom the judgment was given, save for an order for costs.
The notice of motion asks for
an order against Mr Johnstone:
“
1.
Ordering
the Second Respondent to forthwith authorise and direct immediate
payment by the First Respondent to the Applicant in the
sum of
R1
112 252.00
, payment to be made to the
Applicant’s attorneys of record.
2. Ordering
the Second Respondent to forthwith authorise and direct payment by
the First Respondent to the
Applicant of mora interest on the said
sum of R1 112
252.00, calculated at
the prescribed legal rate of interest from
10
November 2022 to the date on which payment of the capital sum of
R1
112 252.00 is effected, payment to be made to the Applicant’s
attorneys of record.
3. Ordering
the Second Respondent to forthwith ensure that the Applicant is
provided with an undertaking
in terms of section 17(4)(a) of the Road
Accident Fund Act.
4. Ordering
the Second Respondent to notify the Applicant’s attorney of
record within
three
days that payment of the aforesaid amounts
has been authorised and directed, and that the undertaking has been
issued and sent
to the Applicant.
5. Granting
the Applicant leave to set this matter down for further hearing, on
five
days’ notice to the Second Respondent, notice to be
given by e-mail, on the same papers, duly amplified where necessary,
for contempt of court proceedings against the Second Respondent, in
the event of the Second Respondent failing to comply with his
obligations as set out in the preceding paragraphs of this order.”
Background
[2]
Ms
Moyo, a Zimbabwean citizen, was seriously injured in a collision in
Gqeberha during October 2019 (the accident). She instituted
action against the RAF in which she sought to recover damages that
she had suffered as a result of the accident. Initially
the RAF
entered an appearance to defend and filed a plea. The plea
denied knowledge of the applicant’s allegations
that she had
been involved in the accident and put her to the proof of her
allegation. However, at the doors of court, the
RAF
capitulated, acknowledged their liability to Ms Moyo, and settled the
claim. The settlement was made an order of court,
by agreement,
on 25 October 2022. The RAF was ordered to pay the capital
amount of R1 112 252.00, together with interest,
as reflected in the
notice of motion, and to provide an undertaking in terms of s
17(4)(a) of the Act.
[3]
As
I have said, the RAF did not give effect to the judgment within the
stipulated timeframe set out therein. Accordingly,
Ms Moyo’s
attorney, Mr Walter, requested payment from Mr Johnstone, the manager
of the RAF’s East London branch.
Still payment was not
forthcoming. Rather, Mr Johnstone, on behalf of the RAF,
demanded that various other documents be provided
before payment
would be made, including a “proof of life affidavit” and
copies of Ms Moyo’s passport reflecting
her entry into and
departure from the Republic of South Africa. These were duly
provided and, on 13 June 2023, Mr Johnstone
advised that the request
for payment had been rejected as it was said that the date stamps in
the passport did not correlate with
the date of the accident.
Various correspondence followed between Mr Walter, the State Attorney
(representing the RAF) and
the RAF in an endeavour to resolve the
impasse but, to no avail.
[4]
On
26 June 2023, Mr Walter addressed a letter of demand to Mr Johnstone
and advised of Ms Moyo’s intention to bring an application
for
contempt of court. He recorded:
‘
Please
note that this Application, in the absence of you providing us with
the name of the Officer at the Road Accident Fund who
is refusing to
authorise the payment, will have to be brought against you in your
personal name.’
Mr Johnstone did not
respond.
[5]
Ms
Moyo made no attempt to execute on the judgment in her favour but,
rather, chose to launch this application against the RAF and
Mr
Johnstone, in his personal capacity. In doing so she contended
that the RAF’s East London branch has an undertakings
department. She then proceeded to record:
‘
I
respectfully submit that it is for the claims handler to ensure that
the undertaking is furnished in accordance with the court
order, and
that it is the duty of the Second Respondent to ensure that it is
done.’
No factual basis was
alleged for either of these submissions.
[6]
In
opposing the application, Mr Johnstone, on behalf of the RAF, raised
an argument
in limine
.
Mr Johnstone explained that in terms of s 17(1) of the Act Ms Moyo
could only claim compensation if she was able to prove
that she had
suffered bodily injury caused by or arising from the driving of a
motor vehicle at any place in South Africa.
Hence, he explained
that after the order of court, the RAF had, through its East London
office, set in motion a process to comply
with the order. The
request for documentation, so the argument unfolded, was aimed at
satisfying the requirements for payment.
He proceeded to say:
‘
The
RAF contends that the applicant failed or refused to support the
payment process when (she) failed to establish (her) presence
within
the Republic at the time of the cause of action.’
[7]
He
challenged Ms Moyo to provide positive proof that she was indeed in
the Republic of South Africa at the time of the alleged motor
vehicle
collision. Thus, the RAF contended that it could not make
payment in terms of the judgment without ensuring that
the statutory
requirements for liability, as described in s 17(1) of the Act had
been met.
Conduct of the RAF
[8]
The
stance adopted by the RAF is spurious and misguided for the reasons
which follow. When a victim of a motor vehicle accident
seeks
to claim damages from the RAF they are obliged to first submit their
claim to the RAF in terms of s 24 of the Act.
The claim must be
completed in the prescribed form giving a clear reply to each
question and providing all the information, including
precise details
in respect of each item under the heading ‘Compensation
claimed’, where applicable, supported by verifying
vouchers.
[2]
They are
thereafter required to submit to the RAF an affidavit in which
particulars of the accident that gave rise to the
claim concerned are
fully set out.
[3]
In terms
of s 24(6) of the Act no claim is enforceable by legal proceedings
commenced by summons before:
(a) the
expiry of a period of 120 days from the date on which the claim was
sent or delivered by hand to
the RAF; and
(b) the
affidavit referred to in s 19(f) has been delivered.
[9]
The
purpose of these provisions was explained in
Constantia
Insurance Co. Ltd v Nohamba
[4]
where
at 39G-H, Galgut AJA explained them thus:
‘
As
we have seen from the
Commercial
Union
case … and
the
Gcanga
case …
the purpose of the form is to enable the insurance company
to "enquire into a claim"
and to investigate it. It is
designed to "invite, guide and facilitate such investigation".
It follows, in my view, that,
if an insurance company is given
sufficient information to enable it to make the necessary inquiries
in order to decide whether
"to resist the claim or to settle or
to compromise it before any costs of litigation are
incurred", it should
not thereafter be allowed to rely on its
failure to make the inquiries.’
[10]
The
requirement relating to the submission of the claim form is
peremptory and the prescribed requirements concerning the
completeness
of the form are directory, meaning that substantial
compliance with such requirement suffices.
[5]
[11]
In
Multilateral
Motor Vehicles Accident Fund v Radebe
[6]
,
to put the matter into perspective, Nestadt JA said:
‘
[T]he
benefit which the claim form is designed to give the fund must
be borne in mind and given effect to. The information
contained in
the claim form allows for an assessment of its liability, including
the possible early investigation of the case.
In addition, it also
promotes the saving of the costs of litigation … These various
advantages are important and should
not be whittled away. The
resources, both in respect of money and manpower, of agents and
particularly of the fund are obviously
not unlimited. They are not to
be expected to investigate claims which are inadequately advanced.
There is no warrant for casting
on them the additional burden of
doing what the regulations require should be done by the
claimant.
[7]
’
[12]
What
emerges from all of this is that the moratorium of 120 days, provided
for in s 24(6), is to enable the RAF to carry
out an
investigation into the circumstances of the accident and, where
appropriate, to settle the claim, before any costs have
been
incurred. The RAF is entitled to rely on the information
contained in the claim form and it is not required to carry
out a
further investigation relating to other possibilities, where the
claimant has provided inadequate or incorrect information.
[8]
However, it is imperative to
carry out such an investigation diligently at an early stage, for the
purpose of the saving of costs,
because the RAF administers public
funds. The investigation which the RAF now purports to have
embarked on, after judgment,
ought to have been carried out even
before summons had been issued. Significantly, when summons was
issued in this case the
RAF entered a plea in which it said,
remarkably, that it had no knowledge of whether the provisions of s
24 had been complied with
at all. This, in itself, suggests
that it had not considered the claim, which would constitute a candid
admission of a dereliction
of duty.
[13]
Of
course, if the RAF is not satisfied as to its liability, or any part
thereof, after having carried out its investigation, it
is entitled
to require of a plaintiff to issue summons and to prove its case, as
occurred in this matter. In her particulars
of claim Ms Moyo
alleged that on 10 October 2019 she was in Gqeberha and was involved
in the accident when she, as a pedestrian,
was struck by a motor
vehicle. She identified the vehicle by its registration number and
provided the identity of the driver of
the vehicle. The RAF
denied any knowledge of the collision and put her to the proof
thereof. Her presence in Gqeberha
and her involvement in the
collision was, accordingly, a dispute pertinently raised in the
litigation and Ms Moyo was required
to prove these facts.
However, she was deprived of the opportunity to do so by the RAF’s
capitulation and, by necessary
implication, their admission that she
had been involved in the collision. The claim was settled on
that basis and the dispute
resolved which resulted in a final order
by consent.
[14]
The
order of court is final and it is binding on all the parties thereto,
even if it may be wrong, until and unless it is set aside
by a court
of competent jurisdiction.
[9]
It is not open to the RAF, after judgment, to require of a judgment
creditor to prove, again, to the satisfaction of the
RAF, the very
same issues that were resolved in the litigation. Of course, Mr
Johnstone is correct that the RAF cannot accept
liability to a
plaintiff without ensuring that the statutory requirements for
liability, as described in s 17(1) of the Act, had
been met. As
I have said, her presence in Gqeberha and her involvement in the
accident were the central issues in the litigation
and the RAF was
indeed obliged to satisfy itself as to the correctness of these
allegation before admitting them. In the
litigation the RAF had
the means to obtain full discovery of all relevant documents in
order to satisfy themselves of Ms
Moyo’s involvement in the
accident, or, if not satisfied, to challenge her claim. That
was the purpose of the litigation.
If they had made the
admission in reckless disregard for the statutory provisions which
bind them, it seems to me to constitute
a further breach of their
duty. But, whatever the position, the admission has been made,
judgment has been delivered, and
the RAF is bound by the judgment
until, and unless, it is set aside by a court of competent
jurisdiction and no such application
has been made.
The relief sought
[15]
However,
Ms Moyo, too, has misconstrued her remedy. The judgment is one
sounding in money, together with an order, at the
election of the
RAF, to provide Ms Moyo with an undertaking in terms of s 17(4)(a).
Ms Moyo is entitled to proceed and execute
on the money judgment.
She has made no attempt to do so.
[16]
As
outlined above, there is no judgment against Mr Johnstone and I know
of no authority, nor was I referred to any, to suggest that
he
attracts a personal obligation flowing from his failure to advise Ms
Moyo as to the identity of the responsible official.
Save to
allege that Mr Johnstone is the manager of the RAF’s East
London branch no basis has been laid for the suggestion
that Mr
Johnstone has the power to direct payment from the RAF’s bank
account. The Board, established in terms
of s 10 of the
Act, is the accounting authority of the RAF entrusted with the power
to exercise overall authority and control over
the financial
position, operation and management of the RAF.
[10]
The chief executive officer is charged with the conduct of the
current business of the RAF, subject to the directions of
the
Board.
[11]
He is
responsible for the investigation and settling of claims and the
management and utilization of the money of the RAF
for purposes
connected with, or resulting from, the exercise of its powers or the
performance of its duties.
[12]
The Act confers no powers to make payment from its bank account on
the management of a local branch of the RAF. I accept,
for
purposes of this judgment, that the Board is entitled to delegate
such powers
[13]
to a manager,
or any other official in the employ of the RAF, but it has not been
alleged that they have done so nor have any facts
been alleged from
which it can be inferred. In fact, it is plain from Mr
Walter’s letter of 26 June that the
applicant does not know who
is responsible. Accordingly, the inescapable conclusion to
which I come is that no case has been
made to support the orders set
out in paragraphs 1 and 2 of the notice of motion.
[14]
[17]
I
turn to the prayer that the second respondent be ordered to ensure
that the applicant is provided with an undertaking in terms
of s
17(4)(a). This order is on a slightly different footing to a
monetary judgment. Ms Moyo advanced a ‘submission’
that
because there is an undertakings division at the branch in East
London Mr Johnstone, the manager of the branch, is personally
responsible for delivering the undertaking. As I have said no
factual basis is laid for this submission and Mr Niekerk, on
behalf
of the applicant, relies firmly on the failure by Mr Johnstone, in
his answering papers, to refute the submission.
There are two
difficulties with the argument. First, I do not consider that a
‘submission’ constitutes a factual
averment to which the
principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[15]
can be applied. At best, it would be a conclusion that could be
drawn from other primary facts that must be alleged in the
affidavit. There are none. Secondly, the ‘submission’
is irreconcilable with the duties and functions entrusted
to the
chief executive officer that I have explained earlier. For
these reasons relief sought in paragraph 3 of the notice
of motion
could not be granted either and the dismissal of paragraphs 4 and 5
must follow.
Costs
[18]
The
issue of costs remains. Costs are always in the discretion of
the court and, although the ordinary rule is that costs
would follow
the result, I consider that the conduct of the matter by the RAF,
outlined by Mr Johnstone in his answering affidavit,
as I have
explained earlier, is worthy of censure. Accordingly, I
consider it would be just and equitable to make no order
as to costs.
[19]
In
the result, the application is dismissed.
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For
Applicant:
Adv D Niekerk
Instructed
by:
Jock Walter Inc, Gqeberha
For
Respondents:
Adv T Manyage
Instructed
by:
Mpoyana Ledwaba Inc c/o
Rwexana
Attorneys, Gqeberha
Date
Heard:
22 February
2024
Date Delivered:
05 March 2024
[1]
Act
56 of 1996.
[2]
Section
16(4)(d).
[3]
Section
19(f).
[4]
1986
(3) SA 27 (A).
[5]
See
Rondalia
Versekeringskorporasie van Suid-Afrika Bpk v Lemmer
1966 (2) SA 245
(A
);
Nkisimane and Others v Santam Insurance Co. Ltd
1978 (2) SA 430
(A), particularly at 435F-436E; AA
Mutual
Insurance Association Limited v
Gcanga
1980 (1) SA 858
(A) at 865B-F;
Evins
v Shield Insurance Co. Ltd
1980 (2) SA 814
(A) at 831B-F;
Guardian
National Insurance Co. Ltd v Van der Westhuizen
1990 (2) SA 204
(C) at 210B-211F.
[6]
1996
(2) SA 145 (A).
[7]
At
152E-I.
[8]
There
is no suggestion in this instance that Ms Moyo had provided
inadequate or incorrect information.
[9]
Bezuidenhout
v Patensie Sitrus Beherend Beperk
2001 (2) SA 224
(E) at 229B-D;
Kotze
v Kotze
1953 (2) SA 184
(C) at 187F;
Secretary,
Judicial Commission of Inquiry into Allegations of State Capture v
Zuma
and
Others
2021
(5) SA 327
(CC), para 87.
[10]
Section
49, read with
s 46
of the
Public Finance Management Act, 1 of 1999
and s 11 of the Act.
[11]
Section
12(2).
[12]
Section
12(2)(a) as read with s 4(1)(b) and (c).
[13]
Section
11(1)(h).
[14]
Outlined
in para 1 hereof.
[15]
1984
(3) 623 (A).