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[2022] ZAMPMBHC 10
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Sibuyi v Road Accident Fund (855 / 2021) [2022] ZAMPMBHC 10 (17 February 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 855 / 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
17
FEBRUARY 2022
In
the matter between:
CLEREY
SIBUYI
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time
for hand-down is
deemed to be 10H00 on 17 FEBRUARY 2022.
JUDGMENT
RATSHIBVUMO
J
[1]
This was
supposed to have been a claim for general damages and loss of earning
capacity to the tune of R8 million by the Plaintiff,
until it came to
light during the trial that the Plaintiff does not have
locus
standi in iudicio
to litigate in his own capacity. The claim arises from a motor
vehicle accident that took place on 06 September 2020. By the time
the court was alerted of the Plaintiff’s condition, evidence of
the Actuary had been led by the Plaintiff’s legal
representative. I am as such reluctant to attribute anything that
transpired in this case to the Plaintiff as the legal representative
seems to have been the driver cum passenger of his own train. Nothing
in the practice note filed on behalf of the Plaintiff suggested
that
he lacked the mental capacity to litigate. To the contrary, the
practice note indicated that “the legal standing of
the
Plaintiff and the jurisdiction in this matter remains undisputed in
that the Plaintiff does have the legal standing and the
cause of
action occurred wholly within the court’s area of jurisdiction
(sic).”
[1]
It further
reflected that the trial set down for 24 January 2022 was proceeding
on quantum only as the merits were conceded by
the Road Accident Fund
(the Defendant).
[2]
There was no appearance for the Defendant and the trial proceeded
by
way of default. The court was satisfied that the notice of set down
was properly served on the Defendant. The trial commenced
with the
Plaintiff’s legal representative making opening address. He
immediately drew the court’s attention to seven
brief
statements by the Plaintiff’s expert witnesses in which they
make reference to their reports filed in the pleadings,
suggesting
that those reports should be seen as having been made under oath. The
Plaintiff’s legal representative then requested
that the said
affidavits be marked as exhibits. At this stage it became apparent
that the Plaintiff’s legal representative
must have had in mind
Rule 38(2) of the Uniform Rules which provides,
“
The witnesses at
the trial of any action
shall be orally examined
,
but a
court may at any time, for sufficient reason, order that all or any
of the evidence to be adduced at any trial be given on
affidavit
or that the affidavit of any witness be read at the hearing, on such
terms and conditions as to it may seem meet: Provided that
where it
appears to the court that any other party reasonably requires the
attendance of a witness for cross-examination, and such
witness can
be produced, the evidence of such witness shall not be given on
affidavit.” [My emphasis].
[3]
Assuming that the Plaintiff’s legal representative may have
been making a request in terms of this rule, the court immediately
informed him that it was expected of him to lead oral evidence
of at
least two witnesses, being the Plaintiff and the Actuary. The request
to lead evidence by means of affidavits could be allowed
in respect
of the rest of the expert witnesses. Counsel duly led the evidence of
the Actuary informing the court that he would
address the court in
respect of the Plaintiff. The Plaintiff was not even one of the
witnesses listed as persons that would give
evidence in the Practice
Note.
[4]
Once the Actuary’s evidence was received, the Plaintiff’s
legal representative informed the court that the Plaintiff was not in
a mental state that he could give evidence. He went on to
refer the
court to psychiatrist report where the following was endorsed,
“
E. CURATOR AD
LITEM:
[The Plaintiff] is
incapable of following court proceedings due to the cognitive
impairment. The court will therefore need to make
provision for the
appointment of a curator
ad
litem
to represent him during the trial.”
[2]
[5]
When asked as to why he did not act on the recommendation by the
psychiatrist, the Plaintiff’s legal representative informed the
court that an application was pending for the appointment
of a
curator ad litem on behalf of the Plaintiff. When asked if the
Plaintiff had the necessary
locus standi
to litigate without
the curator
ad litem
, the Plaintiff’s legal
representative conceded that he could not. When asked as to what
should now happen to the proceedings
underway, he then came up with
several suggestions including that the trial should be postponed
sine
die
and removing it from the roll.
[6]
The court afforded the Plaintiff’s legal representative an
opportunity to prepare the heads of argument which were promptly made
available. I am grateful to his involvement in attempting
to fix what
can be justifiably referred to as the creation of his own hands. I
cannot think of how he thought this was permissible,
except that he
may have hoped that the claim would sneak in undetected, given the
voluminous documents filed, not just in this
case, but also in the
other matters that a judge is allocated to deal with in a trial week
in this Division. If this be the case,
I find it to be very
unfortunate.
[7]
In his
heads of argument, the Plaintiff’s legal representative
addressed the question I had raised on why an order granting
absolution from the instance should not be made. He submitted that
such an order would be to the Plaintiff’s detriment because
in
the recent case of
Liberty
Group Ltd v K & D Marketing & Others
[3]
,
the Supreme Court of Appeal (the SCA) held that it is not permissible
to reopen a case under the same case number and on the same
pleadings, after an order of absolution from the instance had been
granted. He also argued that this judgment confirms that orders
of
absolution from instance in trial proceedings were not appealable. He
reasoned therefore that the trial could not start
de
novo
and this would be the end of the matter.
[8]
The conclusions reached by the Plaintiff’s legal representative
are not supported by the case he seeks reliance on. The alternate
proposal he suggested, to the effect that the trial should be
postponed pending the application for and the appointment of a
curator
ad litem
puts the Plaintiff in a more adverse
situation than what he consider to be the detrimental consequences of
an absolution order.
I mention this mindful of the fact that the
Plaintiff’s claim will only prescribe in 19 months from today.
Liberty Group
judgment did not concern the question on whether
a judgment in which absolution from the instances is granted was
appealable or
whether reopening of a case was permissible under the
same case number. Issues
in casu
are also distinguishable in
that the order of absolution from instance was granted at the end of
the trial as opposed to when it
is granted at the end of the
Plaintiff’s case and the Plaintiff chose not to appeal against
that order. The Plaintiff’s
claim would have prescribed had
they opted to issue new summons against the Defendant. For that
reasons, the Plaintiff chose to
reopen its case under the same
pleadings and case number. The trial court held that it was
impermissible. The Plaintiff appealed
to the SCA which dismissed the
appeal.
[9]
Upon
further reading of the
Liberty
Group
judgment, it is apparent that it is an authority to disprove the
argument advanced by the Plaintiff’s legal representative
especially when Ledwaba AJA said the following:
[4]
“
Counsel on behalf
of Liberty relied on the decision of this court in
African Farms
and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at
563 as authority for its submission that it was entitled to reopen
its case on the same papers. In
African Farms
, Steyn CJ said
the following (at 563E-F):
‘
As pointed out in
Purchase v Purchase
1960 (3) SA 383
(N) at 385, dismissal and
refusal of an application have the same effect, namely a decision in
favour of the respondent. The equivalent
of absolution from the
instance would be that no order is made, or that leave is granted to
apply again on the same pers.’
That dictum relates to
motion proceedings. In motion proceedings, usually in unopposed
matters, an applicant might be given leave
to approach a court on the
same papers, supplemented if so advised. That is not an order
susceptible to appeal. It is no authority
for the proposition that it
is permissible, after an order of absolution from the instance, to
reopen a trial under the same case
number on existing pleadings.
The
only equivalence is that in either instance a defence of
res
judicata
could not be raised. This would be so when an
action is instituted
de novo
or when the
application, in terms of leave having been given, is brought on the
same papers, supplemented, if so advised
. That is what the dictum
in African Farms was conveying.” [My emphasis].
[10]
In
MV
Wisdom C Enterprises Corporation v STX Pan Ocean Co Ltd
[5]
Farlam JA said,
It was common cause
before us that Cleaver J, following
Laconian
Maritime Enterprises Ltd v Agromar Lineas Ltd
1986
(3) SA 509
(D)
,
was correct in applying the
lex
fori
.
It is clear that in our law a defendant who has been absolved from
the instance cannot raise the
exceptio
rei judicatae
if
sued again on the same cause of action: see
Grimwood
v Balls
(1835)
3 Menz 448
;
Thwaites
v Van der Westhuyzen
(1888)
6 SC 259
;
Corbridge
v Welch
(1891
- 2)
9 SC 277
at 279;
Van
Rensburg v Reid
1958
(2) SA 249
(E)
at
252B - C; Herbstein & Van Winsen
The
Civil Practice of the Supreme
Court
of South Africa
4
ed 1997 544 and 684. It was held in
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A)
at
563G - H that the dismissal of an application (which ordinarily would
be regarded as the equivalent to granting absolution
from the
instance:
Municipality
of Christiana v Victor
1908
TS 1117
;
Becker
v Wertheim,
Becker
& Leveson
1943
(1) PH F34 (A)) can give rise to the successful raising of
the
exceptio
rei judicatae
where,
regard being had to the judgment of the court which dismissed the
application, the import of the order [was] clearly
that on the issues
raised the Court found against the appellant [which had been the
applicant in the previous proceedings], and
in favour of the
respondent. It is thus clear that it is not the form of the order
granted but the substantive question (did
it decide on the
merits or merely grant absolution?) that is decisive in our law and
that what is required for the defence to succeed
is a decision on the
merits.
[11]
As indicated above, I am of the view that a decision to postpone this
trial which
is partly heard, puts the Plaintiff in a worse situation
in that an action that was started by a person who could not give any
mandate to litigate, remains pending. Once the foundation is wrong,
the whole litigation based on it becomes contaminated and fatal
to a
claim, no matter how well-reasoned it could be. I am also mindful of
the fact that the case (purported to be that) of the
Plaintiff was
not closed yet. There is however no further movement that can be
legitimately expected of the legal representative
as he literally has
no mandate to close the case, as much as he never had a valid mandate
to lead evidence in the first place.
It is fair to deem the case for
the Plaintiff to be closed for purpose of the order I intend to make
in granting absolution from
the instance.
[12]
The following order is therefore made:
[12.1] Absolution from
the instance is granted to the Defendant.
[12.2] No cost order is
made as the action is undefended.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF
: ADV. MOKOENA
INSTRUCTED
BY
: NM MABUNDA ATTORNEYS
: NELSPRUIT
FOR
THE DEFENDANT :
NO APPEARANCE
DATE
HEARD
: 25 JANUARY 2022
JUDGMENT
DELIVERED : 17 FEBRUARY 2022
[1]
See paragraph 5 of the Practice Note under “Issues in
dispute.”
[2]
See p. 199 of the bundle, para E.
[3]
1290/18) [2020] ZASCA 41
[4]
Liberty
Group Ltd v K & D Marketing & Others (supra)
at
para 13.
[5]
[2008] ZASCA 21
;
2008 (3) SA 585
(SCA) at para 9.