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[2022] ZALMPPHC 34
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M.R.I obo A.N v Road Accident Fund (4363/2021) [2022] ZALMPPHC 34 (27 June 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 4363/2021
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
In
the matter between:
M[....]
R[....] I[....] OBO A[....]
N[....]
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff’s attorneys Jacob Modiba Attorneys Inc has
instituted an action for loss of support
claim against the defendant
arising out of a motor vehicle collision which occurred on 30
th
March 2018. As a result of the said collision, the plaintiff’s
husband sustained injuries which resulted in his death. The
plaintiff
is claiming loss of support in her personal and representative
capacity of her minor child. The combined summons was
duly served on
the defendant. However, the defendant did not defend the plaintiff’s
action. That led to the plaintiff setting
the matter down for hearing
on 23
rd
May 2022.
[2]
In computing the damages suffered by the plaintiff, the plaintiff’s
attorneys engaged the services
of Koch Consulting Actuaries cc
(Koch). Koch prepared a certificate of value which the plaintiff’s
attorneys filed with the
registrar of this court. In preparing for
trial, the plaintiff’s attorneys duly indexed and paginated the
court file. One
of the bundles was titled index to expert affidavit.
In that index there was also the confirmatory affidavit allegedly
signed by
Robert Koch and commissioned in Polokwane by Kgolofelo
Kenneth Ramachela a practising attorney.
[3]
On perusal of the court file before the trial date, presiding Judge
found it strange that Koch who according
to the confirmatory
affidavit is practising in Cape Town could commission his
confirmatory affidavit in Polokwane. On 23
rd
May 2022 the
court seeked clarity from the plaintiff’s counsel as whether
indeed Koch has signed and commissioned his confirmatory
affidavit in
Polokwane. Counsel for the plaintiff could not answer to that, but
suggested that the attorney who had briefed him
should rather come to
court and clarify that. The matter came back to court on 17
th
June 2022 wherein the plaintiff’s attorney Jacob Makganyane
Modiba took the witness stand and testified under oath.
[4]
He testified that he is the director and founder of Jacob Modiba
Attorneys. He was admitted as an attorney
on 7
th
September
2017. That Koch was never in Polokwane to sign and commission the
alleged confirmatory affidavit. That the said confirmatory
affidavit
was also not signed by Koch. That what had happened was that he is
the one who had prepared the confirmatory affidavit
of Koch, and gave
it to his paralegal one Precious Nkoana to courier it to Koch in Cape
Town. That Precious was having 20 years’
experience in handling
of RAF matters. Later Precious told him that the confirmatory
affidavit has been signed and commissioned
and their messenger had
also endorsed it. From there Precious attended to the indexing and
pagination of the court file.
[5]
On Friday the 20
th
May 2022 he became aware that there was
something wrong with the confirmatory affidavit. He immediately sent
his messenger to the
registrar of this court to remove the affidavit,
but the registrar told his messenger that the roll was closed, and
that the file
was already with the Judge. On Monday the 23
rd
May 2022 he wanted to remove the matter from the roll in order to
rectify that, but there was nothing his counsel could do as the
presiding Judge had already picked up the discrepancy of the
confirmatory affidavit. He then checked with the courier company that
they normally use and found that there was no record that the said
confirmatory affidavit was ever couriered to Koch. When he confronted
Precious, she started crying, apologised and said it was a mistake.
[6]
The defendant had already given the plaintiff’s attorneys an
offer of R177 061.00 in an effort
to settle the plaintiff’s
claim. The defendant’s offer is in full and final settlement of
the plaintiff’s claim.
The plaintiff had accepted this offer by
filing a notice of acceptance of the offer.
[7]
Legal practitioners are officers of the court, and are expected to
act with intergrity, honesty
and with diligence at all times. Legal
practitioners play an important role in the administration of
justice, and a high level
of professional standard is expected from
them. As officers of the court, legal practitioners are expected to
assist the court
and not mislead it. It is the duty of a legal
practitioner entrusted with a matter, to ensure that the court file
is in order and
that correct and genuine documents are filed at all
times. Even if the practitioner can delegate his/her staff member to
index
and paginate the court file, it still remains his/her legal
duty to ensure that the file is in order and ready to be presented in
court. Legal documents filed in the court files are signed by
admitted legal practitioners and not administrative staff.
[8]
According to the evidence of Mr Modiba, Precious was employed as a
paralegal, and part of her duties
was to index and paginate court
files. The actual confirmatory affidavit was prepared by Mr Modiba,
who thereafter handed it to
Precious to courier it to Cape Town for
Koch to sign and commission. When Mr Modiba later enquired from
Precious about the confirmatory
affidavit he was told that it has
been signed and commissioned. The index to expert affidavits has been
signed by the plaintiff’s
attorney. Since Precious is not an
admitted legal practitioner, she would not have signed it. That index
to expert affidavits contained
the affidavits of the assessor, Koch
and plaintiff. Before the attorney who had appended his signature on
that document, it is
expected of him/her to have ensured that all the
documents mentioned in that index are attached to the bundle and are
also genuine
documents. On checking whether the documents were in
order, he/she would have realised that there was something amiss with
the
confirmatory affidavit of Koch since it was signed and
commissioned in Polokwane, whilst his instruction to Precious was to
courier
it to Cape Town.
[9]
What is also concerning is what has been stated on the alleged
confirmatory affidavit of Koch by the
attorney who had commissioned
it. On the certificate, the commissioner of oath has stated that the
affidavit was signed and sworn
in his presence after the deponent had
acknowledged that he knows and understand the contents of the
affidavit. If Koch was never
in Polokwane, the question is whether
the attorney who had administered the alleged oath on Koch was aware
that the person who
presented himself/herself as Koch was in fact not
Koch.
[10]
With the evidence presented by Mr Modiba, it is clear the alleged
confirmatory affidavit of Koch has been
obtained fraudulently. Fraud
in itself had the elements of dishonesty. Whether Mr Modiba was
involved in these fraudulent activities
or was aware of it,
sufficient evidence has not been placed before court to make a
determination on that. It will therefore be
appropriate for the Legal
Practice Council to investigate the involvement of both Mr Modiba and
Kgolofelo Kenneth Ramachela on
whether they were involved in
obtaining the fraudulent confirmatory affidavit of Koch.
[11]
There is nothing on record to suspect that the deceased did not die
as a result of the injuries that he had
sustained whilst he was a
passenger in one of the vehicles that was involved in the motor
collision on 30
th
March 2018 along Ga-Dipere road. The
defendant had given the plaintiff an offer, which the plaintiff had
accepted. The fraudulent
confirmatory affidavit had no bearing on the
validity of the plaintiff’s claim, but relate to the conduct of
the legal practitioners
who have obtained it. That will therefore not
hamper the finalisation of this matter.
[12]
In the result I make the following order
12.1 The defendant is
100% liable to pay the plaintiff’s proven or agreed damages.
12.2 The defendant to pay
the capital amount of R177 061.00 (one hundred and seventy-seven
thousand and sixty-one rand) in full
and final settlement in respect
of loss of support. Payment shall be made by direct transfer into the
following bank account:
Account holder
: Jacob Modiba Attorneys
Name of Bank
: First National Bank
Branch Code
: 25036
Account number
: [....]
Type of account
: Trust Cheque Account
12.3 The defendant is
ordered to pay costs of the suit on Magistrate Court Scale on party
and party scale.
12.4 No interest will be
payable on the capital sum, provided payment is made on or before
23
rd
November 2022. Should payment not be made timeously,
the defendant will pay interest at the rate of 7% per annum from due
date
to date of final payment.
12.5 The notice of
taxation shall be served on the defendant and the defendant is to
make payment of the taxed or agreed costs within
14 (fourteen) days
of taxation or agreement.
12.6 Copy of this
judgment to be sent to the Legal Practice Council.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel for the
plaintiff
: Adv N Phatudi
Instructed
by
: Jacob Modiba Attorneys
For the
defendant
: In default
Date
heard
: 17
th
June 2022
Electronically
circulated on
: 27
th
June 2022