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[2023] ZAECBHC 23
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Macanda v Road Accident Fund (36/2022) [2023] ZAECBHC 23 (16 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
NOT REPORTABLE
Case no: 36/2022
In
the matter between:
VUYISA
MACANDA
Applicant
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
Govindjee J
[1]
The applicant sought the following relief
on motion:
‘
1.
That the Respondent is found to
be in breach of its statutory and constitutional obligations
by
failing to give effect to the order of the above honourable court
dated 9
th
February 2023 by the honourable Mr Justice Potgieter;
2.
That the Respondent’s non-compliance with the court order dated
9
th
February 2023 by the honourable Mr Justice Potgieter
is a violation of the Respondent’s constitutional and statutory
duties;
3.
That the Respondent is directed to take all the administrative and
other necessary
steps to ensure that it complies with the court order
dated the 9
th
February 2023 by the honourable Mr Justice
Potgieter within 10 days from the date of this order;
4.
That if the Respondent should fail to comply with the order dated the
9
th
February 2023 by the honourable Mr Justice Potgieter
within 10 days from the date of this order, the Applicant is granted
leave,
on the papers duly amplified, for a further hearing and
determination of contempt of court proceedings against the
responsible
claims handler and such further relief as the Applicant
might seek;
5.
That Mr Gona and / or Mr Mlinganiso, or any other legal
representatives of the Respondent
at the offices of the State
attorney, should personally serve a copy of this court order to the
responsible claims handler personally;
6.
That Mr Gona and / or Mr Mlinganiso, or any other legal
representatives of the
Respondent at the offices of the State
attorney, should file an affidavit setting out compliance with this
court order within five
[days] after serving this court order
personally to the claims handler;
7.
That the Respondent is ordered to pay the costs of this application
on an attorney
and own client scale.’
[2]
The application, which was unopposed, was
dismissed with no order as to costs. The reasons for that decision
follow.
[3]
Potgieter J issued the following
order on 9 February 2023 (‘the February Order’):
‘
1.
The matter is postponed
sine die
;
2.
The Defendant is ordered to pay the Plaintiff’s costs
occasioned by the postponement
with interest, on appropriate scale 14
days from the date of
allocutur
to date of payment, which
costs are to include: -
2.1
The fees of counsel, inclusive of counsel’s full day fees for
attending trial on Monday
the 6
th
and Thursday the 9
th
February 2023, including counsel’s fees and disbursements for
attending consultations with the Plaintiff’s expert witnesses,
where applicable;
2.2
The reasonable qualifying expenses of obtaining medico-legal (expert)
reports which have
been used to date and the reasonable preparation,
qualification and reservation fees of Professor Maqungo, the
Plaintiff’s
Orthopaedic Surgeon;
3.
The Defendant is ordered to make a decision whether or not the
Plaintiff’s
injuries were correctly assessed as serious in
terms of the method provided in terms of Regulations 3(3)
(c)
or 3(3)
(d)
of the Road Accident Fund Regulations, 2008
(Regulation 31249) within 5 days from the date of the order.’
[4]
The applicant’s attorney deposed to
an affidavit explaining the relief sought and setting out background
facts to a motor
vehicle collision which occurred on 22 December
2020. The deponent reiterated the terms of the February order,
highlighting the
respondent’s resultant obligation to make a
decision as to seriousness, and that it had failed to do so at the
time of the
application. The importance of that decision for the
applicant’s claim for general damages, and the process to be
followed
to arrive at a decision on the part of the respondent, was
explained. In fact, much of the founding affidavit does nothing more
than explain the applicable statutory, regulatory and administrative
approach to serious injuries caused by motor vehicle accidents,
containing largely irrelevant material considering the order already
obtained. For example, the deponent proceeds to deal
with
various hypothetical situations, including agreements as to
seriousness, ill-advised court determinations of seriousness,
judicial review of a decision by the Health Professions Council of
South Africa and decisions of an Appeal Tribunal. Furthermore,
two
paragraphs are spent canvassing a possible objection (by the
respondent) to jurisdiction by way of special plea. A further
paragraph deals with Uniform Rule 22(4) and a possible stay of a
claim for general damages pending pursuit of internal remedies.
[5]
The founding affidavit deals briefly with
alleged prejudice caused by the respondent’s tardiness in
making a decision as to
seriousness, and with a courtesy letter
drafted on 11 May 2023 and attached to the papers. This is followed
by ten paragraphs quoting
from sections of the Road Accident Fund Act
and two decided cases in order to explain the respondent’s
purpose, its powers
and functions, highlighting the usual sentiments
previously expressed by courts when the respondent fails to comply
with its obligations.
[6]
The deponent concludes with a request for
punitive costs, indicating that a case has been made out for the
relief sought. The above
summary explains why this cannot be the
case. Leaving aside the padding of the papers with unnecessary and
irrelevant material,
the founding affidavit completely fails to
justify the relief sought considering the terms of the order already
obtained. Indeed,
counsel briefed to appear in motion court was
unable to explain how granting the application would advance the
applicant’s
case considering that the February order had
already specified a five-day period within which the respondent was
to determine whether
the assessment of the applicant’s injuries
as serious was correct.
[7]
In effect, the relief sought is little more
than an underline to the point that court orders must be respected.
That this is the
position is trite. What the application fails to
address is why it was necessary to launch the application to make the
point, as
opposed to proceeding directly with the initiation of
contempt proceedings. Counsel for the applicant was also unable to
address
this concern.
[8]
In
motion proceedings, the affidavits constitute both the pleadings and
the evidence and the issues and averments in support of
the parties’
cases should appear clearly therefrom.
[1]
The applicant stands or falls by its petition and the facts alleged
therein.
[2]
Considering the
existence of the February order, and what is contained in the
founding affidavit, it is clear that the applicant
has failed to make
out a case for the relief sought.
[3]
Section 165(5) of the Constitution provides that an order or decision
issued by a court binds all persons to whom and organs of
state to
which it applies. It follows axiomatically that non-compliance of a
court order is impermissible. There is no explanation
advanced, in
the present application, as to why it is necessary to apply to court
for confirmation of these principles, as an additional
or
intermediate step en route to a contempt of court application. It
begs the question whether such applications are always necessary,
or
advisable, as a precursor to contempt proceedings, and why the
present circumstances justify an additional order laying the
foundation for a contempt application. It is unnecessary to address
these broader considerations. It suffices to note that those
matters
are left unexplained in the present application.
[9]
As
Rugunanan J remarked in
Elegant
Line Trading 257 CC v Member of the Executive Council for Transport –
Eastern Cape
,
[4]
the applicant’s difficulty is the inadequate conceptualisation
of the founding affidavit, which is deserving of censure.
To amplify,
the application fails to explain why the court should make an order
that reflects the legal position that non-compliance
of a court order
is a violation of a constitutional duty, or why a further order is
necessary to direct compliance with the terms
of a previous order, as
a precursor to possible contempt proceedings. Why a further order and
an additional ten days is appropriate
when the respondent was ordered
to make its decision on seriousness within five days from the order
is also omitted. There is also
no explanation as to why the applicant
requires an order granting her leave to bring subsequent contempt
proceedings and the related
relief as to service.
[10]
While
the judiciary is expected to uphold, protect and apply the
Constitution of the Republic of South Africa, 1996, and the law,
the
corollary duty borne by all members of South African society is to
respect and abide by the law, including court orders issued
in terms
of it.
[5]
The rule of law is a
foundational constitutional value that requires that the dignity and
authority of the courts be upheld.
[6]
Disobedience towards court orders or decisions risks rendering our
justice system nugatory.
[7]
[11]
For
this reason, courts have the power to ensure that their decisions or
orders are complied with, also by organs of state, by acting
as
guardians of the Constitution and by asserting their authority in the
public interest.
[8]
The vehicle
for doing so is not through duplication of orders, requesting one
court to confirm and highlight what another has,
in essence, already
said. Instead, it is contempt of court proceedings that exist to
protect the rule of law and the authority
of the judiciary.
[9]
Contempt jurisdiction now also involves the vindication of the
Constitution.
[10]
It is the
object of contempt proceedings to impose a penalty that will
vindicate the court’s honour, consequent upon the
disregard of
its previous order, and to compel performance in accordance with the
previous order.
[11]
[12]
For these reasons the application was
dismissed. In the absence of opposition there was no order as to
costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
25
July 2023
Date
of order
:
25
July 2023
Reasons
delivered:
16
August 2023
Appearances:
For
the Applicant:
Mr
Mati
Cinga
Nohaji Inc.
36
Chamberlain Road
Berea
East
London
For
the Respondent:
No
appearance
[1]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D.
[2]
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
1953 (3) SA 256
(C) at 260A-D.
[3]
My Vote
Counts NPC v Speaker of the National Assembly
2016
(1) SA 132
(CC) para 177.
[4]
Elegant
Line Trading 257 CC v Member of the Executive Council for Transport
–
Eastern
Cape
[2022] ZAECBHC 45 para 26.
[5]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[2021] ZACC 18
(‘
Zuma’
)
para 1.
[6]
Section
1 of the Constitution.
[7]
See
Pheko
v Ekurhuleni City
[2015] ZACC 10
;
2015 (5) SA 600
(CC) (‘
Pheko
’)
paras 1-2.
[8]
Ibid.
[9]
Zuma
above
n 5 para 27.
[10]
Ibid.
[11]
Ibid para 28. Once it is proven that an order exists and was served
on a litigant who did not comply therewith, contempt will
have been
established beyond reasonable doubt unless the respondent
establishes a reasonable doubt relating to wilfulness and
mala
fides:
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006 (4) SA 326
(SCA).