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[2022] ZALMPPHC 44
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Mohale v Road Accident Fund (7257/2019) [2022] ZALMPPHC 44 (12 August 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7257/2019
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
DATE: 12/08/22
In
the matter between:
MATOME
JEALOUS MOHALE
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
REASONS FOR JUDGEMENT
KGANYAGO J
[1]
On 14th
July
2022 at 15h04 a judgment in the abovementioned matter was
electronically circulated all the affected parties including Shiviri
Manzini Masetla Inc. Shiviri Manzini Masetla Inc are now requesting
reasons for judgment alleging that they became aware of the
judgment
on social media on 9th August 2022. The reasons for judgment
appears in the judgment
already circulated and I stand by them. In
this regard I will supplement the reasons that are already contained
in that judgment
circulated on 14th
July
2022.
[2]
The issue was that Dr Kumbirai does not
believe in taking oath was brought by advocate Mojamabu on 18th
May 2022 whilst representing the plaintiff
under case no 6476/2018. The attorneys of record for the plaintiff
was Shiviri Manzini
Masetla Inc. In that matter advocate Mojamabu
wanted to hand in an affidavit of Dr Kumbirai which was signed but
not commissioned.
However, since the court had already seen other
affidavits deposed by Dr Kumbirai which were signed and commissioned,
that was
brought to the attention of advocate Mojamabu, and the court
refused to admit that affidavit. However, as there were other expert
affidavits which were duly signed and commissioned, which could still
deal with the issues dealt by Dr Kumbirai, default judgment
was
granted in favour of the plaintiff.
[3]
It was only on 6th
June 2022, when Mr Mphlahlele who was
representing the plaintiff in the current matter handed in an
affidavit signed and commissioned
by Dr Kumbirai, the court saw it
prudent to have clarity on the matter since two officers of the court
have presented to versions
which are mutually destructive of each
other. The two versions presented could not be both true, and what
was concerning
was
that it goes into the ethical conduct of the
two officers of the court as it may seem
that one may be misleading the court. The only person who may clarify
that uncertainty
was Dr Kumbirai.
[4]
It was clear that Dr Kumbirai was going to
confirm one version, and that version was going to vindicate one
counsel whilst condemning
the other counsel. For fairness purposes
and not do injustice to any of the parties involved, the court was
duty bound to call
advocate Mojamabu and his instructing attorneys to
be present when Dr Kumbirai came to clarify the court about whether
he believes
in taking oath or not since it was advocate Mojamabu who
raised it first. That would have afforded advocate Mojamabu and his
instructing
attorneys to put any version that might assist the court.
They did that by cross examining Dr Kumbirai and also calling their
messenger
to testify.
This
does not need a consolidation of case no 6476/2018 and 7257/2019
since 6476/2018 had already been disposed. However, the issue
of Dr
Kumbirai not taking oath emanates from case no 6476/2018, and the
finding of the court under case no 7257/2019 may have adverse
findings against the legal practitioner whom his version might be
condemned by Dr Kumbirai.
[5]
In
Motswai
v RAF
[1]
Cachalia
JA said:
"Through
the authority vested in the courts by s 165(1) of the Constitution
judges wield tremendous power. Their findings often
have serious
repercussions for the persons affected by them. They may vindicate
those who have been wronged but they may condemn
others. Their
judgments may destroy the livelihoods and reputations of those
against whom they are directed. It is therefore a
power that must be
exercised judicially and within the parameters prescribed by law. In
this case it required the judge to hold
a public hearing so that the
interested parties were given an opportunity to deal with the issues
fully, including allowing them
to make all relevant facts available
to the court before findings were made against them.”
[6]
The proceedings under case number 6476/2018
was the source upon which Dr Kumbirai ended up been called to clarify
the court. Even
if the proceedings under case number 6476/2018 were
finalised, they still remained relevant in the proceedings under case
number
7257/2018. Advocate Mojamabu and his instructing attorneys are
interested parties whom an adverse finding could be made against
them. It would not have been proper to have made that finding without
giving them an opportunity to be heard.
KGANYAGO J
JUDGE OF THE IDGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Reasons
requested by
:
Shiviri Manzini Masetla Inc
Date
requested
:
10
th
August 2022
Electronically
circulated
:
12
th
August 2022
[1]
2014
(6) SA 360
(SCA) at para 59