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[2023] ZAECMHC 12
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Z.R.M v Road Accident Fund (4041/2020) [2023] ZAECMHC 12 (17 March 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No: 4041/2020
In
the matter between:
Z[...]
R[...] M[...]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BROOKS
J:
[1]
In accordance with the current arrangement made with the registrar of
this court pursuant
to the directive issued by the Judge President on
12 April 2021 (the directive), fifty-one matters were enrolled before
this court
on 15 March 2023. All the matters were civil claims
for unliquidated damages in which the plaintiffs sought judgment by
default.
Remarkably, not a single matter so enrolled was
presented to the court in the manner set out in the relevant portions
of rule 31
of the Uniform Rules of Court (the rule). Three of
the matters, all presented by the same attorney, were substantially
compliant
with the provisions of the relevant portions of the rule.
This matter has been selected from amongst the three as a vehicle
for
the expression by the court of views that are applicable to all
matters in which plaintiffs seek judgment by default in civil
action
for claims for unliquidated damages.
[2]
It is appropriate to contextualise this judgment by referring to the
historical position
in this court relating to matters of this
nature. Over the years the practice had developed that saw
attorneys enrolling
such matters in the motion court. They were
commonly referred to as “applications for default judgment”.
Even the registrar endorsed the nomenclature weekly by providing a
similarly worded subheading on the motion court roll and listing
the
matters thereunder. Invariably, the court was presented with a
“notice of application” or a “notice
of motion”
supported by a so-called “damages affidavit”. It
was the consistent expectation of practitioners
that the outcome in
such matters would by a judgment by default. In most instances,
dilatory defendants would be represented
on the motion court day and
seek the removal of the matter from the roll against a tender for
costs and an undertaking in respect
of the future conduct of the
matter.
[3]
For a number of reasons the directive was issued. It
highlighted the fact that
motion court proceedings are not suited to
the prosecution of claims for unliquidated damages. It
prescribed that “default
judgment applications in which
unliquidated damages are claimed” shall be set down on specific
days on a trial roll.
[4]
Some practitioners sought to avoid compliance with the directive in
respect of claims
for unliquidated damages against the Minister of
Police. The approach they adopted was dealt with fully by a
full bench in
this court. The relevant judgment is Bisha and
Others v Minister of Police.
[1]
Of relevance for present purposes is the content of paragraphs [19]
to [22] of Bisha, in which the court highlighted that
judgment can
only be granted in favour of the plaintiff after the court has heard
appropriate evidence. The court highlighted
that an attempt to
establish the merits of an
actio
iniuriarum
by
placing an affidavit before the court is in conflict with all legal
principles discussed in the judgment. The reference
to
viva
voce
evidence could not have been clearer.
[5]
The judgment in Bisha takes no issue with authorities
[2]
that state that normally the
quantum
of damages should be established by oral evidence, but in special
circumstances the court may accept evidence on affidavit.
[6]
In respect of evidence intended to establish
quantum
it must
be obvious that where it presented in affidavit form the deponent
must be a person who is qualified to express the opinion
set out in
the affidavit. An affidavit by a plaintiff that states that the
plaintiff has suffered special damages in a specific
amount has no
probative value.
[7]
It follows that there is no place in a matter of this nature for a
so-called “damages
affidavit” deposed to by a plaintiff.
[8]
What is required is the oral evidence of a plaintiff that addresses
the merits of
his or her claim and the personal aspects relating to
quantum
, such as might motivate a claim for general damages or
provide the basis upon which an expert witness has formulated his or
her
opinion on special damages.
[9]
The relevant portions of the rule read as follows:
31(2)(a) Whenever in an
action the claim or, if there is more than one claim, any of the
claims is not for a debt or liquidated
demand and a defendant is in
default of delivery of notice of intention to defend or of a plea,
the plaintiff may set the action
down as provided in subrule (4) for
default judgment and the court may,
after
hearing evidence
[3]
grant
judgment against the defendant or make such order as to it seems
meet …
31(4) The proceedings
referred to in subrules (2) and (3)
shall
be set
down for
hearing
[4]
upon
not less than five days’ notice to the party in default:
Provided that no notice of set down need be given to any party
in
default of delivery of notice of intention to defend.
[10]
The provisions of the rule emphasise the need to hear oral evidence.
[11]
It is important not to overlook the provisions of the rule that
prescribe how the matter is to
be enrolled. What is required is
a notice of set down that contains relevant information, for example:
WHEREAS the combined
summons was served on 10 November 2020; and
WHEREAS the defendant
was offerded twenty (20) days within which to deliver a notice
of intention to defend; and
WHEREAS the defendant
filed her notice of intention to defend on 26 October 2021; and
WHEREAS the defendant
failed to file a plea and was served with a notice to demand a plea
and bar on 22 March 2022; and
WHEREAS the five-day
period after service of the notice to demand a plea and bar expired
on 30 March 2022; and
WHEREAS the defendant
remains in default of filing a plea;
NOW THEREFORE BE PLEASED
TO TAKE NOTICE that the plaintiff hereby enrols the matter for
hearing on a date to be allocated by the
registrar when the
plaintiff will seek judgment by default against the defendant as
follows:
1 that the defendant be
and is hereby held liable to the plaintiff for payment of the
following sums as and for damages arising
out of the motor vehicle
accident that occurred on 9 February 2019:
1.1 general damages in
the sum of R 200 000.00;
1.2 future medical
expenses in the sum of R180 000.00;
1.3 future loss of
earnings in the sum of R 400 000.00.
[5]
2. that the defendant be
and is hereby ordered to pay the plaintiff’s costs of suit,
such costs to include …
KINDLY ENROL THE MATTER
ACCORDINGLY.
[12]
In the present matter, the plaintiff’s attorney set out the
sequence of the relevant events
that occurred since the issue of the
combined summons, much like the illustration set out in the preceding
paragraph of this judgment.
However, the document is
erroneously headed “Notice of Application for Judgment by
default in terms of rule 31(2)(a) of the
Uniform Rules.”
It is preferable to style the appropriate document as “Notice
of Set Down”. However,
the document stands head and
shoulders above many others that were to be found on the relevant
roll. Some were styled “Notice
of Motion” and
others “Notice of Application”, still echoing the
misguided history when such matters were enrolled
in the motion
court.
[13]
Regrettably, the present matter is no different from any of the other
matters on the roll in
that it was burdened by a so-called “damages
affidavit” in which the plaintiff repeats the history of the
matter, describes
the merits of his case and addresses the
quantum
of his case. There is no place for such an affidavit.
Since the matter was clarified in the Bisha judgment, practitioners
ought not to persist in the bad habit of introducing “damages
affidavits”. They have no probative value and simply
run
up the costs of litigation in a manner that neither the defendant nor
the plaintiff should be expected to meet. For this
reason, an
appropriate costs order will be made.
[14]
Two aspects of special damages were dealt with in this matter.
They were appropriately
dealt with by the presentation of a fully
motivated medico-legal report and opinion compiled by an appropriate
expert witness who
had examined the plaintiff and come to a
well-reasoned opinion. In each instance the expert report was
covered by an affidavit
deposed to by the relevant expert and
confirming the accuracy and appropriateness of the medical opinion
offered in the report.
This is compliant with the
dicta
in the
Havenga
judgment
[6]
and, in my view,
constitutes an acceptable manner for placing expert evidence on
quantum
before
the court when a plaintiff seeks judgment by default on a claim for
unliquidated damages. Such evidence, of course,
must still be
based upon the
viva
voce
evidence
given by the plaintiff. It can also be led orally from the
expert concerned.
[15]
Although the origins of many of the bad practices referred to in this
judgment are difficult
to identify, perhaps one of them may be
attributable to the wording of subrule (5) of the rule, which deals
with claims for a debt
or liquidated demand. Here the subrule
requires a plaintiff to “file with the registrar a written
application for judgment”.
The subrule has nothing to do
with claims for unliquidated damages and accordingly its prescript
should not be followed.
In at least one matter on the relevant
roll, reference was made to rule 31(5)(a), so the speculation of the
court is not entirely
misplaced.
[16]
In a few matters that served on the relevant roll, reference in a
misnomered notice was made
to rule 6(11) of the Uniform Rules of
Court, sometimes in conjunction with a reference to the rule.
Rule 6(11) reads as follows:
Notwithstanding the
aforegoing subrules, interlocutory and other applications incidental
to pending proceedings may be brought
on notice supported by such
affidavits as the case may require and set down at a time assigned by
the registrar or as directed
by a judge.
In
seeking judgment by default in accordance with the provisions of the
rule, a plaintiff is not pursuing an “interlocutory”
application or an “application incidental to pending
proceedings.” The invocation of, or reference to, rule
6(11) of the Uniform Rules of Court has no place in a matter such as
the present.
[17]
In two matters on the relevant roll, plaintiffs sought an order in
terms of rule 33(4) of the
Uniform Rules of Court, separating merits
and
quantum,
suggesting
in the so-called “damages affidavit” that because the
claims for unliquidated damages were so large, they
could be dealt
with more conveniently at a later date. In my view, such an
argument does not address the concerns of a judge
who may be called
upon to make such an order. Practitioners would be well advised
to re-read the Bisha judgment that expresses
the pertinent view of
the full court in this regard.
[7]
[18]
When the matter was called, Ms Swartz, who is a member of the
professional staff of the Office
of the State Attorney, appeared on
behalf of the defendant. It became apparent that the parties
had reached agreement in
respect of the further conduct of the matter
as a defended action. In such circumstances, it was not
necessary to adjudicate
upon the merits or
quantum
of the
plaintiff’s claim.
[19]
The following order will issue:
1. The application for
judgment by default is withdrawn with the leave of the court.
2. The bar is uplifted.
3. The defendant is
directed to pay the costs of the application on a party and party
scale.
4. The defendant is
directed to file its plea within twenty days of the date of this
order.
5. No costs shall be
recoverable from either the plaintiff or the defendant in respect of
the “damages affidavit” prepared
in the name of the
plaintiff.
R
W N BROOKS
JUDGE
OF THE HIGH COURT
Appearances
For
the plaintiff:
Mr
Jika
Instructed
by:
Mjulelwa
Inc. Attorneys
45
Leeds Road
MTHATHA
For
the defendant
Ms
Swartz
Instructed
by
Office
of the State Attorney
Sisson’s
Street
MTHATHA
Date
heard
15 March 2023
Date
delivered
17 March 2023
[1]
(4144/2020,
1129/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020) [2021] ZAECMHC
24 (13 July 2021).
[2]
See for example New Zealand Insurance Co Ltd v Du Toit
1965 (4) SA
136
(T); Mister of Police v Lusindiso Nongwejane (CA&R 63/2015)
of the Eastern Cape Division, Mthatha; Havenga v Parker
1993 (3) SA
724
(T) 726 C to I
[3]
Emphasis
added.
[4]
Emphasis
added.
[5]
Figures
are purely illustrative examples.
[6]
Note
2 supra.
[7]
At
para [21]