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[2023] ZAECMKHC 137
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Mantanga v Road Accident Fund (566/2017) [2023] ZAECMKHC 137 (5 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not
Reportable
CASE
NO. 566/2017
In
the matter between:
AYANDA
NB MANTANGA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
LAING
J
[1]
This is an application for default judgment in relation
to the
plaintiff’s claim for damages arising from a motor vehicle
accident that occurred on 31 August 2008 in the vicinity
of Komani
(Queenstown).
Background
[2]
In her particulars of claim, the plaintiff alleges that
she had been
a passenger in a Toyota Hi-Ace motor vehicle. She pleads that the
driver had been negligent because he,
inter alia
, failed to
keep the motor vehicle under proper control and failed to avoid the
accident when he could have done so by exercising
reasonable care and
skill. The plaintiff was severely injured and claims R 3,000,000 for
damages suffered.
[3]
At the hearing of the application, the plaintiff testified
that she
had attended a church service in Komani (Queenstown) on the date in
question. She later caught a taxi to Lady Frere. The
route had led
through a mountainous area, with many curves, and it had been raining
at the time. The plaintiff had been asleep
when the accident occurred
and had woken up to find herself lying on the ground, outside the
taxi. She had been taken to hospital
and informed by a doctor that
she had been involved in an accident.
[4]
To questions put to her by the court, the plaintiff said
that the
driver had told her that the taxi had collided with another motor
vehicle. She never saw the other vehicle, however, and
could not say
what damage had been caused to the taxi. She could not say how the
accident occurred, where the taxi had come to
a rest, and whether it
had remained in an upright position. She could also not explain why
she had pleaded that the driver of the
taxi had been negligent,
intimating only that this had been done based on the police
investigation and the advice of her attorneys.
She had no witnesses
to corroborate her version of what had happened.
[5]
In relation to the nature of her injuries, the plaintiff
testified
that she had sustained serious injuries to her shoulder, arm, and
hip, which had limited her mobility. She had also sustained
a cut on
her head. The accident had confined her to hospital, after which she
had spent three months at home, unable to work. She
is presently
employed as a secretary in the Eastern Cape Department of Education.
[6]
The plaintiff indicated that she, personally, had submitted
a claim,
which the defendant had acknowledged on 10 March 2010. She later
received an offer from the defendant on 3 March 2015,
which she
rejected. Her attorneys instituted action on her behalf on 7 February
2017. The defendant’s attorneys entered an
appearance to defend
on 28 February 2017 and simultaneously requested copies of the
plaintiff’s medical records, accident
report, witness
statements, claim forms, and related documents, under rules 35(14)
and 36(4) of the Uniform Rules of Court (‘URC’),
to which
the plaintiff’s attorneys replied on 15 March 2018. Thereafter
followed a hiatus of some four years where no further
steps were
taken by either side to advance the matter.
[7]
On 18 May 2022, the plaintiff’s attorneys withdrew,
and new
attorneys took over the instruction, requesting that the matter be
enrolled for trial. From the court file, it is apparent
that the
plaintiff’s new attorneys arranged for the referral of the
plaintiff to various experts for assessment and the preparation
of
medical-legal reports. On 11 January 2023, the defendant’s
attorneys withdrew, which led to the delivery of a notice of
bar. No
plea was forthcoming. The plaintiff’s attorneys filed an
application for default judgment on 27 February 2023 and
complied
with the necessary case management requirements, indicating that they
had received no cooperation from the defendant.
On 14 April 2023, the
registrar was directed to allocate a date for the hearing of oral
evidence in support of the plaintiff’s
application. The matter
came before court on 10 August 2023.
Issues
to be decided
[8]
The main issue to be decided is whether to grant default
judgment in
favour of the plaintiff. Before doing so, however, it is necessary to
deal with two issues that arose during the hearing:
(a) the
application or otherwise of the principles pertaining to the possible
superannuation of the plaintiff’s summons;
and (b) the
defendant’s liability considering the evidence presented.
[9]
The issues require closer examination within the relevant
legal
framework, as set out below.
Legal
framework
[10]
The issues in question will be addressed separately, in accordance
with their
respective sub-headings.
Superannuation
[11]
The
superannuation of a summons could be said to occur when it becomes
too outdated or stale to be effective. The relevant principles
can be
summarised as follows: if the plaintiff institutes action which the
defendant simply ignores, then the plaintiff must nevertheless
proceed with the action within a reasonable time, to be determined by
all the relevant facts of the matter.
[1]
There is, currently, no rule of court or practice which provides that
any summons or procedural step lapses merely because the
plaintiff
fails to proceed with the action.
[2]
[12]
There is
old authority for the contention that it is unreasonable to delay
beyond the period of prescription of the debt on which
an action is
based. A court is entitled to refuse to grant judgment in such
circumstances and may grant leave to the plaintiff
to issue a fresh
summons.
[3]
No consistent
approach is evident from earlier case law. For example, a court
granted default judgment despite the lapse of 21
months between the
date of issue of summons and the application itself;
[4]
however, a court in a different matter ordered fresh service of the
summons where five years had lapsed.
[5]
[13]
In
Molala
v Minister of Law and Order and another
,
[6]
the plaintiff issued summons on 3 March 1987, to which the defendant
filed a request for further particulars on 16 April 1987.
Besides a
change of attorneys, nothing further happened until 23 September
1991, when the plaintiff furnished such further particulars.
The
defendant subsequently applied for the dismissal of the action on the
ground of abuse of process, caused by the plaintiff’s
unreasonable delay in taking further steps. The court remarked that
it seemed to be generally accepted that, in the absence of
any
express provision, there was no principle that a High Court summons
loses its validity merely because a period of time has
passed.
[7]
Flemming DJP went on to hold that:
‘
The approach which
I am bound to apply is therefore not simply whether more than a
reasonable time has elapsed. It should be assessed
whether a facility
which is undoubtedly available to a party was used, not as an aid to
the airing of disputes and in that sense
moving towards the
administration of justice, but knowingly in such a fashion that the
manner of exercise of that right would cause
injustice. The issue is
whether there is behaviour which oversteps the threshold of
legitimacy. Nor, in the premises, can plaintiff
be barred simply
because defendants were prejudiced. The increasingly difficult
position of the defendants is a factor which may
or may not assist in
justifying an inference that plaintiff’s intentions were
directed to causing or to increasing such difficulties.
But the
enquiry must remain directed towards what plaintiff intended, albeit
in part by way of
dolus
eventualis
.
The increase in defendants’ problems is, secondly, a factor
insofar as the Court, on an overall view of the case, is to
exercise
a discretion about how to deal with a proven abuse of process.’
[8]
[14]
The above approach emphasises the conduct of the plaintiff. If a
court finds
that it was not
bona fide
then it should exercise
its discretion accordingly.
[15]
Subsequently,
in
Gopaul
v Subbamah
,
[9]
Richings AJ found that the proper approach entailed weighing up the
delay and the reasons therefor, on the one hand, and the prejudice
caused to the defendant, if any, on the other.
[10]
The learned judge also found that the reasons for the defendant’s
inactivity had to be taken into account, especially considering
the
many procedural devices available to force a dilatory plaintiff to
bring his or her action to finality.
[11]
[16]
Counsel for
the plaintiff in the present matter also drew attention to the
decision in
Cassimjee
v Minister of Finance
,
[12]
involving a period of some 20 years where neither party took steps to
advance the matter. Boruchowitz AJA observed as follows:
‘
There are no
hard-and-fast rules as to the manner in which the discretion to
dismiss an action for want of prosecution is to be
exercised. But the
following requirements have been recognised. First, there should be a
delay in the prosecution of the action;
second, the delay must be
inexcusable; and, third, the defendant must be seriously prejudiced
thereby. Ultimately, the enquiry
will involve a close and careful
examination of all the relevant circumstances, including the period
of the delay, the reasons
therefor and the prejudice, if any, caused
to the defendant.’
[13]
[17]
The principles that have emerged in relation to the superannuation of
a summons
must, finally, be applied subject to a litigant’s
right of access to the courts. In that regard, section 34 of the
Constitution
provides that everyone has the right to have a dispute
that can be resolved by application of the law to be decided in a
fair public
hearing before a court or before another independent and
impartial tribunal or forum.
Liability
of the defendant
[18]
In terms of the
Road Accident Fund Act 56 of 1996
, the liability of
the defendant is addressed under
section 17(1)
, which provides that:
‘
(1)
The Fund or an agent shall–
(a) …
(b) …
Be obliged to compensate
any person (the third party) for any loss or damage which the third
party has suffered as a result of any
bodily injury to himself or
herself or the death of or any bodily injury to any other person,
caused by or arising from the driving
of a motor vehicle by any
person at any place within the Republic, if the injury or death is
due to the negligence or other wrongful
act of the driver or of the
owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties
as employee…’
[19]
A claimant is required to demonstrate that the injury or death that
forms the
subject of his or her claim for compensation was because of
negligence or another wrongful act. The law of delict applies.
[20]
In
Septoo
v The Road Accident Fund
,
[14]
the Supreme Court of Appeal confirmed, per Mbatha AJA, that:
‘
The underlying
basis for the Act
[15]
is the
common law principles of the law of delict. A claimant must therefore
prove all the elements of a delict before it can succeed
with its
claim in terms of the Act.’
[16]
[21]
Mindful of the rudimentary framework set out above, it is necessary
to deal
with the issues insofar as they pertain to the facts of this
matter.
Discussion
[22]
As a starting point, it is important to remark that the accident that
forms
the subject of the plaintiff’s claim happened on 31
August 2008, some 15 years ago. It was not clear from either the
plaintiff’s
evidence or the court file why it took
eight-and-a-half years before summons was issued and why the matter
was then allowed to
lie dormant for a further four years after the
plaintiff’s delivery of medical records and related documents
to the defendant.
Whereas the plaintiff was previously unrepresented,
which could have made the pursuit of her claim more difficult, it is
inexplicable
why she did not take steps to ensure that the matter was
brought to finality once she was properly represented. The ensuing
inactivity
cannot be attributed entirely to her erstwhile attorneys,
the plaintiff must share some of the blame. There is simply no
explanation
for the delay.
[23]
The prejudice to the defendant is patent. It would be extremely
difficult for
the defendant to identify and locate witnesses who
would be able to testify about what caused the accident, assuming
that they
could, at this stage, still remember the details. Whereas
the defendant has failed to oppose the plaintiff’s application,
it remains responsible for the management of public funds. To allow
the plaintiff to proceed, notwithstanding her delay, compels
the
defendant to incur unnecessary costs in the continued defence of the
claim, as poorly as this may have been done to date, and
in possible
rescission or appeal proceedings.
[24]
Of more concern, however, is the paucity of evidence upon which the
plaintiff
bases her claim. She relies, essentially, on the following
facts: she had been a passenger in a taxi that was involved in an
accident
which led to her sustaining serious injuries. She presented
absolutely no evidence regarding the negligence of the driver, as
pleaded.
[25]
Counsel
invoked the maxim,
res
ipsa loquitur
,
as discussed in
Road
Accident Fund v Mehlomakulu
,
[17]
and applied in
Janse
van Vuuren NO v Road Accident Fund
,
[18]
to contend that it found application in the present matter. The
maxim, loosely translated as ‘the thing speaks for itself’,
has been summarised as:
‘
a convenient Latin
phrase used to describe the proof of facts which are sufficient to
support an inference that a defendant was
negligent and thereby to
establish a
prima
facie
case against him.’
[19]
[26]
It may be
applied when the occurrence itself is the only known fact from which
a conclusion of negligence can be drawn.
[20]
The occurrence, moreover, must not ordinarily take place in the
absence of negligent conduct.
[21]
The maxim must be used with caution, and does not remove in any way
the burden of proof that rests on a plaintiff. In
Mehlomakulu
,
Jones J remarked:
‘
The case
illustrates the difficulty in applying the maxim correctly in the
correct circumstances. The first collision was not a
case where the
plaintiff can establish a prima facie case of negligence by merely
proving the occurrence of the first collision.
It is neither proper
nor logical to infer negligence merely because two motor vehicles
collided on a national road, and certainly
not by invoking the
res
ipsa loquitur
maxim. This is one of “the many classes of occurrence where the
mere happening of an accident is not relevant to infer negligence”
…
[22]
Applying the
maxim in a case such as this would in effect be giving it general
application, which is contrary to principle; to
use again the
language of Erasmus J in
Macleod
v Rens
…
[23]
“the maxim
res
ipsa loquitur
has no general application to highway collisions” although it
may, “in a restrictive class of cases, sometimes apply”
[24]
’
[27]
The court
went on to quote, at some length, the decision in
Macleod
,
[25]
where Erasmus J held as follows:
‘
Proof by a
plaintiff of an event properly falling within the maxim- that is to
say, proof of an event which, in the absence of anything
to the
contrary, tells its own story- may justify an inference of negligence
against the defendant. That inference may be displaced
by the
remainder of the story: if it does not do so, then the inference
remains-
res
ipsa loquitur
.’
[26]
The learned judge
continued:
‘
As a particular
form of inferential reasoning,
res
ipsa loquitur
requires careful handling. It is not a doctrine, as it is sometimes
referred to. It propounds no principle and is therefore strictly
speaking not even a maxim. What it does do is pithily state a method
of reasoning for the particular circumstance where the only
available
evidence is that of the accident. It boils down to the notion that in
a proper case it can be self-evident that the accident
was caused by
the negligence of the person in control of the object involved in the
accident. As such it is not a magic formula.
It does not permit the
Court to side-step or gloss over a deficiency in the plaintiff’s
evidence; it is no short cut to a
finding of negligence: these are
real dangers in the application of the expression. It seems to tempt
Courts into speculation.
Expressions such as in ordinary human
experience, common sense dictates, and obviously, which are regularly
employed in reasoning
along the lines of the maxim, sometimes only
serve to disguise conjecture. Moreover, there is a risk of false
syllogism inherent
in reasoning that, as the accident would
ordinarily not have occurred without negligence on the part of the
driver of the vehicle,
the defendant, having been the driver, was
therefore negligent. Finally, reasoning along the lines of
res
ipsa loquitur
leads to the somewhat unsatisfactory finding that the defendant was
negligent in some general or unspecific manner.’
[27]
[28]
In the
present matter, the plaintiff’s case depends strongly on the
mere fact that she was injured in a motor vehicle accident,
as a
passenger. This triggered the application of the maxim, argues the
plaintiff. To that effect, counsel referred to
Janse
van Vuuren NO
,
[28]
where, on appeal, Tolmay J held:
‘
The court
a
quo
misdirected itself in postulating that one cannot by the mere conduct
of the overturning of a vehicle draw an inference of negligence
against a driver. A vehicle which is driven properly and without
negligence does not normally overturn whilst travelling along
a
roadway. The principle of
res
ipsa loquitur
finds application. The evidence points to an inference of negligence
on the part of the first insured driver. There exists no evidence
on
which it could be held that the deceased was negligent even if he
might not have made the right decision in the agony of the
moment.’
[29]
[29]
As already stated, however, the plaintiff is still required to
discharge the
onus. She must, in the end, demonstrate that the driver
of the taxi was negligent. She cannot rely on the maxim alone.
[30]
The
locus
classicus
for negligence (
culpa
)
remains the decision in
Kruger
v Coetzee
,
[30]
where Holmes JA held:
‘
For the purposes
of liability
culpa
arises if–
(a) a
diligens paterfamilias
in the position of the defendant–
(i)
would foresee the reasonable possibility
of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such
occurrence; and
(b)
the
defendant failed to take such steps.’
[31]
[31]
The plaintiff testified that she boarded the taxi on 31 August 2008.
The accident
happened at about 18h00 in a mountainous area, with many
curves in the road, and it had been raining. She presented no
evidence
regarding the driver’s conduct, how it would have
given rise to the reasonable possibility of causing injury to her,
what
steps could have been taken to avoid this, and whether the
driver had failed to do so. The plaintiff merely points to the
accident
and asserts that the driver was negligent based on
inferential reasoning,
res ipsa loquitur
.
[32]
There are, however, any number of other inferences that can be drawn.
It is
probable that driving conditions were far from ideal since it
would have been dark, and the road would have been wet. Nevertheless,
the taxi could have been in perfect working order and the driver
could have been immensely skilful and vigilant, yet still collided
with another vehicle approaching from the wrong side of the road at a
corner or on a blind rise. A child could have dashed across
the road
in the gloom. The taxi could have struck a flock of sheep huddled
together, motionless, in the cold. The driver could
have suffered a
sudden and unexpected heart attack. A speeding vehicle, without
lights, could have clipped the side of the taxi
as it overtook. The
paucity of facts draws the matter, ineluctably, into a wide sea of
conjecture.
[33]
It is of no
assistance to the plaintiff to contend that she only needs to prove
‘the proverbial 1% negligence’
[32]
on the part of the driver to be successful in her claim. Whereas this
is a useful ratio that expresses the practical effect of
section
17(1)
of the
Road Accident Fund Act 56 of 1996
, it also reflects the
extent of the driver’s negligence only in proportion to the sum
of the negligence involved overall.
It may, relatively speaking, be a
small share of the
culpa
attached to the delictual action in question, it may be a large
share. But even if it is only 0.01% of the whole, the plaintiff
must
still prove this.
Relief
and order
[34]
The court has authority, in terms of section 173 of the Constitution,
to protect
and regulate its own process. With reference to the
principles set out in
Cassimjee
, the court is satisfied that
it can, and should, dismiss the plaintiff’s application because
of the superannuation of her
summons. This is so, notwithstanding the
right of access to court afforded to the plaintiff under section 34
of the Constitution.
A delay of four years, following a period of
some eight-and-a-half years since the date of the accident, is
inexcusable and seriously
prejudices the defendant.
[35]
The more formidable obstacle in the way of the plaintiff’s
claim, however,
is her lack of evidence in relation to the alleged
negligence of the driver. There were simply not enough facts
presented to the
court to permit the invocation of
res ipsa
loquitur
and to find that the negligent conduct of the driver had
been the cause of the accident and the resulting injuries suffered by
the plaintiff.
[36]
The following order is made:
(a)
the application for default judgment is dismissed; and
(b)
the plaintiff is directed to bear her own costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the plaintiff:
Adv
Mlalandle
Instructed
by:
S
Booi & Sons
c/o
Cloete & Co
112A
High Street
Makhanda
(Ref:
SBO2/0002/AB)
For
the defendant:
No
appearance
Date
of submission of
heads
of argument:
29
September 2023
Date
of delivery of judgment:
05
December 2023
[1]
AC
Cilliers (
et
al
),
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
(Jutastat e-publications, 5ed 2009 ch15), at 506.
[2]
Morgan-Smith
v Elektro Vroomen (Pty) Ltd en ‘n ander, NO
1977
(2) SA 191
(O), at 194A.
[3]
Hunt
v Engers
1921
CPD 754.
[4]
Chernotzsky
& Lewis v Mulder
1922
JDR 383.
[5]
Commercial
Bank of SA v Schneider
1929
SWA
[6]
1993
(1) SA 673 (W).
[7]
At
676C.
[8]
At
677C-E.
[9]
2002
(6) SA 551 (D).
[10]
At
558A.
[11]
At
558F-G.
[12]
2014
(3) SA 198 (SCA).
[13]
At
paragraph [11].
[14]
2017
JDR 1913 (SCA).
[15]
Road
Accident Fund Act 56 of 1996
.
[16]
Septoo
,
supra
,
at paragraph [3].
[17]
2009
(5) SA 390 (E).
[18]
(A525/2015)
[2017] ZAGPPHC 838 (28 March 2017).
[19]
Goliath
v MEC for Health, Eastern Cape
2015
(2) SA 97
(SCA), at paragraph [10].
[20]
Groenewald
v Conradie; Groenewald v Auto Protection Insurance Co Ltd
1965
(1) SA 184
(A), at 187.
[21]
Mostert
v Cape Town City Council
2001
(1) SA 105
(SCA), at paragraph [40].
[22]
Groenewald
,
supra, at 187D.
[23]
1997
(3) SA 1039 (E).
[24]
At 1046D.
[25]
Supra
.
[26]
At
1046E-F.
[27]
At
1048E-I.
[28]
Supra
.
[29]
At
paragraph [10].
[30]
1966
(2) SA 428
(A).
[31]
At
430E-F.
[32]
Counsel
referred to
Prins
v Road Accident Fund
2013 JDR 0358 (GSJ), at paragraph [4].