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[2023] ZAFSHC 359
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Litsoane v Road Accident Fund and Another (4962/2019) [2023] ZAFSHC 359 (12 September 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF SOUTH AFRICA
FREE STATE PROVINCIAL DIVISION
Reportable: yes/no
Circulate to other Judges: yes/no
Circulate to Magistrates: yes/no
Case Number 4962/2019
In
the matter between:
LITSOANE
GERMINA LITSOANE
Applicant
and
ROAD
ACCIDENT FUND
1
st
Respondent
DLABANTU
AND ASSOCIATES INCORPORATED
2
nd
Respondent
In
re:
LITSOANE
GERMINA LITSOANE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
23 March 2023
DELIVERED
ON:
12 SEPTEMBER 2023
JUDGEMENT
BY:
BERRY,
AJ
JUDGMENT
[1]
This is an Application to vary a Court Order granted on 10 November
2022
in terms of Rule 42(1)(b).
[2]
The Court Order made a settlement Agreement between the Applicant and
the 1
st
Respondent and Order of Court.
[3]
The Application to make the settlement agreement was only served on
the
1
st
Respondent and proceeded unopposed.
[4]
The Applicant was involved in a vehicle accident and lodged a claim
against
the 1
st
Respondent.
[5]
She appointed Motaung Attorneys to represent her.
[6]
The matter was settled on 10 March 2022 in that an offer of
settlement
was made and accepted.
[7]
The settlement was not made an order of Court at the time.
[8]
Mr Dlabantu was employed as Professional Assistant by Motaung
Attorneys.
[9]
Mr Tando Ongama Dlabantu represented Motaung Attorneys at all
material
times in his capacity as an employee of Motaung Attorneys.
[10]
The settlement agreement nominated the banking details of Motaung
Attorneys into which
the 1
st
Respondent had to pay the
settlement amount.
[11]
Mr Dlabantu left the employ of Motaung Attorneys on 05 October 2022
to start his own firm,
cited in this Application as the 2
nd
Respondent.
[12]
His resignation occurred after the settlement was reached, but prior
to payment.
[13]
The Applicant was contacted by Mr Dlabantu on 25 October 2022 and
requested a consultation
at the premises of the 2
nd
Respondent.
[14]
Mr Dlabantu, as sole director of the 2
nd
Respondent,
requested the Applicant to sign a new power of attorney appointing
the 2
nd
Respondent as her attorney as well as a new
contingency fee agreement.
[15]
Mr Dlabantu was still in the employ of Motaung Attorneys when the
settlement agreement
was signed.
[16]
Following the appointment of the 2
nd
Respondent as
Attorney of record, the Applicant, represented by the 2
nd
Respondent brought an Application to make the settlement agreement an
Order of Court.
[17]
The Court Order of 10 November 2022 reads as follows:
“
1
The settlement recorded in the offer, Annexure “FA1” to
the Founding Affidavit is made an Order of Court.”
[18]
The settlement agreement attached to the Application to make it an
Order of Court, referred
to as ANNEXURE “FA1” stipulated
the banking details of Motaung Attorneys as the bank into which
payment had to be made.
[19]
Order 2.6 of the 10 November 2022 Court Order however nominate the
banking details of the
2
nd
Respondent into which payment
must be made.
[20]
This banking detail differs from the banking detail captured in the
settlement agreement.
[21]
It is this anomaly the Applicant wishes to rectify as she is liable
for the contingency
fees and expenses owed to Motaung Attorneys,
which facilitated the settlement and finalisation of the matter
before Mr Dlabantu
left the employ of Motaung Attorneys.
[22]
The Applicant contacted Motaung Attorneys to enquire about the status
of the 2
nd
Respondent after the 2
nd
Respondent
provided her with a copy of the Order dated 10 November 2022.
[23]
She appointed Motaung Attorneys to bring this Application on 28
November 2022.
[24]
The 2
nd
Respondent opposes the Application to amend the
Order.
[25]
The 2
nd
Respondent raised two points
in limine
,
dealing with the non-joinder of him in his personal capacity as well
as the non-joinder of Motaung Attorneys.
[26]
Motaung represents the Applicant in this Application.
[27]
The 2
nd
Respondent’s contention is that Mr Dlabantu
is implicated in his professional capacity as an attorney and
therefore he should
be afforded the opportunity to respond in his
personal capacity.
[28]
The 2
nd
Respondent further contents that there is not an
obvious error in the Court Order.
ANALYSIS
[29]
The Order differs from the settlement agreement.
[30]
There is no Application to amend the settlement agreement.
[31]
Rule 42(1)(b) provides that an Order may be amended where there is a
patent error in the
Order.
[32]
The Order does not reflect the correct banking details provided for
in the settlement agreement.
[33]
The
in limine
arguments are in my opinion no more than red
herrings as it does not affect the fact that the Court Order reflects
the incorrect
banking details.
[34]
I deliberately limit this judgment to the question whether the Order
reflects the correct
banking details contained in the settlement
agreement and whether this error is a patent error as provided for in
Rule 42(1)(b).
[35]
I find that there is an obvious error in the Court Order of 10
November 2022 in that it
does not reflect the correct banking details
provided in the settlement agreement.
ORDER
[36]
The following Order is made.
1.
Order 2.6 of the Order granted on 10 November 2022, Case Number
4962/2019
is amended to read as follows:
2.6
The 1
st
Respondent is ordered to pay the sum plus interest
into the following account:
MOTAUNG ATTORNEYS TRUST
FIRST NATIONAL BANK
ACCOUNT NUMBER: 622[…]
BRANCH NAME: PRELLER
BRANCH CODE: 230139
REF NUMBER: LIT22/0001
E-MAIL PROOF:
l[...]@motaungattorneys.co.za
2.
The 2
nd
Respondent is ordered to pay the costs of this
Application.
AP BERRY, AJ
APPEARANCES:
For
the Applicant:
Motaung
Attorneys
BLOEMFONTEIN
For
the Defendant:
Adv.
T Mpahlwa
Instructed
by:
DLABANTU
AND ASSOCIATES INC
BLOEMFONTEIN