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[2022] ZALMPPHC 31
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Vutlhari v Road Accident Fund (2692/2021) [2022] ZALMPPHC 31 (17 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 2692/2021
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
In
the matter between:
NUKERI
VUTLHARI
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff represented by NK Vukeya Inc instituted an action
against the defendant claiming damages
out of an alleged motor
vehicle accident that occurred on 8
th
October 2019 along
Mathibaskraal road, Nobody, Mankweng. According to the plaintiff’s
particulars of claim, at the time of
the accident the plaintiff was
still a minor child. When the accident occurred, the plaintiff was a
passenger in a certain Toyota
Quantum with the registration letters
and numbers unknown to the plaintiff. The insured driver was also
unknown to the plaintiff.
The insured driver had lost control of the
vehicle which rolled over which resulted in the plaintiff sustaining
injuries of the
left weber B ankle and left fibula fracture. The
plaintiff alleges that as a result of the injuries she had sustained
during the
alleged accident, she had suffered damages in the amount
of R4 350 000.00 which is for medical expenses, general damages and
loss
of income.
[2]
The defendant did not defend the action despite proper service of
combined summons. That led to the
plaintiff setting down the matter
for the 23
rd
May 2022 for trial on both merits and
quantum. On perusal of the court’s file before the trial date,
the presiding Judge
found some discrepancies relating to the alleged
accident. The first discrepancy was that according to the hospital
records of
Mankweng Hospital Emergency Unit, the plaintiff was
brought to the hospital on 8
th
October 2019 at 18h07. The
plaintiff when brought to the hospital she was complaining that she
had missed a step and fell, and
sustained an injury on the left ankle
which was swollen. The doctor who had seen the plaintiff on the same
date had recorded that
the plaintiff had fell on that date, and was
complaining about the pain in the left ankle that was swelling.
[3]
The second issue of concern was that the accident report shows that
it was completed by one sergeant
Mashiloane on 29
th
January 2020 at 16h55. Sgt Mashiloane had recorded that the accident
occurred on 8
th
October 2019 at 12h30 at Mathibaskraal
road. Where the sergeant was supposed to draft the sketch plan, he
had recorded that the
scene was not visited.
[4]
The 23
rd
May 2022 was the roll call day. On that day
counsel for the plaintiff wanted the matter to be stood down to the
settlement roll
of Friday the 27
th
May 2022. When the
court engaged counsel of the plaintiff to clarify these discrepancies
that I have alluded to above, he was unable
to answer and wanted the
matter to be removed from the roll. The court refused to remove
matter from the roll and instead allocated
it for trial which was
supposed to be the 24
th
May 2022. On 24
th
May
2022, counsel for the plaintiff submitted that the plaintiff who was
in court the previous day was unable to come to court
on that day as
she was sick and the matter was postponed to 26
th
May
2022. On 26
th
May 2022, the court was informed that the
plaintiff has not yet recovered and the matter was postponed to 15
th
June 2022 to enable the plaintiff to recover fully.
[5]
On 9
th
June 2022 the plaintiff’s attorneys filed a
notice of withdrawal as attorneys of record. Their notice of
withdrawal as attorneys
of record indicate that the plaintiff has
terminated their mandate, and the termination of mandate was attached
to the notice.
However, the termination of mandate does not state who
was taking over the file, or whether the plaintiff was going to
represent
herself. On 15
th
June 2022 the plaintiff or her
representative failed to attend court.
[6]
It is trite that the Road Accident Fund (RAF) is obliged to
compensate for bodily injuries caused by
or arising from the driving
of a motor vehicle. In the case at hand, on reading the pleadings and
other documents filed of record,
there are some question marks as to
whether the injuries that the plaintiff had sustained were caused by
or arising out of the
driving of a motor vehicle. Currently RAF has
terminated its panel of attorneys and most of their matters are
undefended. That
causes a huge burden to presiding officers as they
have to ensure that everything was in accordance with justice before
they make
an order as these matters involves public funds.
[6]
In
PM
obo TM v Road Accident Fund
[1]
Weiner AJA said:
“
[34] The RAF is an
organ of state, established in terms of s 2 of the Road Accident Fund
Act 56 of 1996 (the Act). It is thus bound
to adhere to the basic
values and principles governing the public administration under our
Constitution. Section 195(1) requires
inter alia, that ‘[a]
high standard of professional ethics must be promoted and
maintained’; and that ‘[e]fficient,
economic and
effective use of resources must be promoted.
[35] In cases involving
the disbursement of public funds, judicial scrutiny may be essential.
A judge is enjoined to act in terms
of s 173 of the Constitution to
ensure that there is no abuse of the process. Judges of all divisions
have expressed concern that
in many RAF cases, there is an abuse of
the process…”
[7]
The hospital records of the plaintiff show that the plaintiff
sustained her injuries when she missed
a step and fell. There is
nowhere in the hospital records where it has been recorded that the
injuries were as a result of a motor
vehicle accident. The accident
was also reported to the police three months later, and that accident
report is no of assistance
to court as it had failed to record most
of the crucial facts. The only person who can be able to clarify the
court on these issues
is the plaintiff through her oral evidence.
[6]
The former attorneys of the plaintiff when they set this matter down
for hearing on 23
rd
May 2022 was specifically for trial on
both merits and quantum. When the court raised these issues with them
in advance was for
the purpose of not catching them by surprise, but
to enable them to prepare in advance. However, instead of assisting
the court,
they are leaving the court in the lurk. The conduct of the
former attorneys of the plaintiff after the court has raised these
issues
with them raises more questions than answers. The former
attorneys of the plaintiff have engaged the services of seven expert
witnesses
whom their expert reports have been filed. To engage so
many experts in my view did not come cheap. The alleged termination
of
mandate by the plaintiff is questionable as it does not state who
will be taking over the file. Under normal circumstances a
termination
of mandate will state as who will be taking over the
file. The termination also happened immediately after the court has
raised
some issues which goes into the heart of the validity of the
claim. It seems the former attorneys of the plaintiff have realized
the problems in this matter, and have taken the short cut of simply
running away from it. It does not make sense to simply leave
the
matter like this after investing so much money in it.
[7]
From the minimum evidence placed before court, there is a possibility
that this is not a genuine claim
and the plaintiff’s injuries
were not caused by or arising out of the driving of a motor vehicle.
However, it is not the
duty of this court to investigate whether the
injuries were caused by or arising out of the driving of a motor
vehicle. It is the
function of RAF to ensure that claims lodged with
it are properly investigated within the stipulated time period, and
that genuine
claims are settled. Courts are required to decide
matters on facts placed before it. However, the courts will not turn
a blind
eye on questionable matters that comes before it without
scrutinizing them, more especially where the matters are undefended.
When
dealing with public funds, a high degree of care is expected
from the courts in order to avoid the abuse which may occur as a
result
of most RAF matters currently been undefended.
[8]
In order not prejudice the plaintiff in case her claim is genuine, it
will be in the best interest of
justice if this matter is postponed
sine die and RAF is ordered to investigate whether the plaintiff’s
claim is genuine.
[9]
In the result I make the following order
9.1 Matter is
postponed sine die.
9.2 RAF is ordered
to investigate whether the plaintiff’s claim is genuine and
report to the Registrar of this Court within
60 days of this order of
the outcome of their investigation.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
For
the Plaintiff
:
In default
For
the defendant
:
In default
Date
of hearing
:
15
th
June 2022
Electronically
circulated
:
17
th
June 2022
[1]
[2019]
ZASCA 97
(18 June 2019) at paras 34 and 35