About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 17
|
|
Willemse v Road Accident Fund (3214 / 2019) [2022] ZAMPMBHC 17 (4 April 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 3214 / 2019
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
04 April 2022
In
the matter between:
ADAM
JOHANNES
WILLEMSE
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 04 April 2022.
JUDGMENT
RATSHIBVUMO J
[1]
This is a claim for general damages,
medical expenses and loss of earnings totalling R3 500 000.00
by the Plaintiff, against
the Road Accident Fund (the Fund). Court
ordered the separation of the quantum from the merits in accordance
with Rule 33(4), at
the request by both parties. The trial proceeded
in respect of the merits only. Issue pertaining to quantum was
postponed s
ine die
.
[2]
Merits of the case included a question on
whether it was permissible for the Defendant to withdraw an offer
after it was accepted
by the Plaintiff. As it appears from the
pleadings that were handed in for trial purposes, the Defendant made
a tender in terms
of Rule 34(1) in which merits were conceded on 50%
liability in favour of the Plaintiff. The offer was dated 11 October
2021 and
was served on the Plaintiff on 20 October 2021. The
Plaintiff served his signed notice of acceptance via email on 08
November 2021
at 09h18. On the same date and at 10h13, the Defendant
responded alerting the Plaintiff that the offer was withdrawn.
[3]
The Plaintiff submitted from the onset that
the Defendant was not entitled to withdraw an offer after it was
accepted. It was submitted
that the court can only allow a withdrawal
of an accepted offer in exceptional circumstances. Counsel for the
Defendant submitted
that there were exceptional circumstances that
will be proved through evidence, that the claim was fraudulent as it
involved a
single motor vehicle – a motorbike that the
Plaintiff was riding; yet his claim suggested that the accident
involved two
motor vehicles. For this reason, the court gave a
directive for trial to proceed as envisaged as it would be in a
better position
to decide on this aspect after hearing the evidence
on merits which shall include the evidence on the alleged fraud.
[4]
A total of three witnesses were called in
this trial; one for the Plaintiff and two for the Defendant. The
pleadings, photos from
the scene of the accident and the offer of
settlement together with the acceptance letter by the Plaintiff were
handed in as exhibits
by agreement between the parties.
[5]
Samuel Rachoshi was the Plaintiff’s
only witness. He testified that on 05 August 2018, he was standing on
the side of the
Nelspruit/Lydenburg Road together with his colleague
named Brenda where they usually hike for lifts to Lydenburg. When he
looked
to Lydenburg direction, he saw some 200 meters away, a
motorbike coming down the hill overtaking a white sedan motor
vehicle. The
white motor vehicle then bumped the motorbike which fell
down.
[6]
In an attempt to clarify the words “the
white motor vehicle bumped into a motor bike” he then used the
words, “they
bumped into each other.” When asked to
clarify further, he then said the motorbike bumped into a white motor
vehicle. The
point of impact was on the left side of the road when
driving down the hill, meaning it was on the proper side of the white
motor
vehicle and the motor bike. He went on to say he could not say
as to who was at fault between the biker and the driver of the white
motor vehicle. The white motor vehicle did not stop. He could not see
its registration numbers as it was driven at a high speed.
He also
testified that there is no way the accident could have been avoided
and that the accident took place because of the motorbike
overtaking
the white motor vehicle.
[7]
He did not tell the police as to what he
saw. He was questioned on a document which is part of the pleadings
which up until then,
was thought to be an affidavit. It was the court
that brought it to the attention of the legal practitioners that on
the face value
of the document, when the deponent was asked if he has
an objection in taking the oath, the answer written manually using a
pen
was “yes”. It does not look like the deponent took an
affirmation now that he voiced an objection in taking the oath.
The
document was thereafter referred to as just “a statement.”
While he admitted that the signature in the statement
was his, he did
not know what he was signing it for, as the contents were not read
back to him. Although on the face value, the
commissioner of oath is
reflected as a police officer, the witness disputed having signed the
statement at a police station or
in front of a police officer.
[8]
This evidence concluded case for the
Plaintiff.
[9]
The Defendant called Brenda Mdhluli as the
first witness. She testified that on the date of the incident,
between 16h45 and 16h55,
she was standing on their usual hiking spot
on the side of the road. She was in the company of her colleague,
Samuel (Mr. Rachoshi).
They were hiking for a lift from cars driving
from East (Nelspruit direction) to West (Lydenburg direction). As she
was looking
to the East, she heard noise (like a falling motorbike)
from the Western side. She turned to look and saw a motor bike having
fallen
on the road. It was at a distance of about 150 meters away
from her. She immediately alerted Samuel to also look and see what
she
was observing. When she looked, the motorbike was slightly behind
a white motor vehicle. The white motor vehicle drove past them.
She
ran to inform her employer of what she just saw.
[10]
She was later approached by a certain Mr.
Nkosi who introduced himself as a lawyer and he wanted to know how
the accident occurred
and she told him. She also told him that she
did not see the actual accident but she heard some noise and when she
looked, the
motor bike had already fallen to the ground. Later, she
was made to sign a document by Mr. Nkosi. The said document was not
read
to her. It was untrue that she saw the accident. When she
observed and saw a motor bike falling, it was about 150 meters away
which
is a long distance for her to see. At that time of the day, the
sun was also setting making it difficult for one to see anything
at
the direction of the sun.
[11]
She disputed having said that “it is
my submission that the motor vehicle touched the motor cycle, causing
the rider to lose
control over the motor cycle.” Remarkably,
the same sentence was written in a statement attributed to Mr.
Rachoshi. Like
the statement attributed to Mr. Rachoshi, this
statement also fails to be an affidavit for exactly the same reasons.
She also testified
that she asked Mr. Nkosi as to what was in for
her, and he promised to give her something when the case is finished.
[12]
She also testified on how she on 05
November 2021, met the officials from the Fund who asked her to tell
what happened and she told
them what she told the court, like she
told Mr. Nkosi. These officials also took a statement from her which
was read back to her
before causing her to sign it. When the version
by Mr. Rachoshi was put to her, she could not dispute it saying, if
that is what
he saw, it was different to what she saw.
[13]
Samuel Dalane also testified. He worked for
the Fund in the Forensic Department and had been working there for
the past 25 years.
It was he and Itumeleng who approached Ms. Mdhluli
and obtained a statement from her. She also took them to the scene of
the incident
where she showed where she was standing when she saw the
motor bike falling. It was a distance of about 200 meters and at that
distance she could not even see well.
[14]
With this evidence, case for the Defendant
was closed.
[15]
In
Ngwalangwala
v Auto Protection Insqurance Co Ltd (in Liquidation)
[1]
,
the Appellate Division in dealing with a predecessor rule to Rule
34(1) said the following,
“
[N]o
indication is given in the Rule as to any basis upon which the Court,
which is approached for an order under sub-para. 11 thereof,
should
decide whether either party should obtain the relief in question; but
it was accepted in the
Frenkel,
Wise and Company
[2]
,
that it is in each case a matter for the discretion of the Court to
be exercised according to the particular relevant circumstances.
That clearly must be the position. In the present matter it has
become unnecessary to consider exactly in what circumstances the
Court should allow a plaintiff to accept and to obtain money paid
into Court which he has previously refused or neglected timeously
to
accept; the appellant has on appeal not persisted in his claim
for an order for the payment out to him of the money paid
in. In
regard to the position of a defendant who has paid in money under the
Rule, some of the considerations which may weigh with
the Court in
allowing him to retract and to claim back such money have been
indicated in the judgment in
Frenkel's
case mentioned above. In view of the fact that the Rule requires that
such a payment be pleaded, any application by a defendant
for
repayment will usually involve an amendment of the plea to withdraw
that part of his plea which refers to and sets up the payment.
For
this purpose a defendant would also have to show good reason why he
should be allowed to amend his pleadings. If
he
can aver, for instance, that the payment into Court was made and
pleaded under a mistake of fact or was induced by fraud or that
no
legal basis exists for any claims at all by the plaintiff against
him, the Court may be induced to allow him to withdraw
his plea of
payment
into Court and authorise a repayment to him by the Registrar. But, in
the absence of some such reason, a mere change of mind by
a defendant
or a reconsideration of the tactics he desires to employ in the
action against him would be no basis for requesting
a Court
to exercise its discretion in his favour by allowing him to
resile from the position he had solemnly taken up previously.”
[My emphasis].
[16]
In
Road
Accident Fund v Krawa
[3]
,
the appellant sought and was granted leave to amend its plea so as to
withdraw an offer it had made conceding merits of the case.
The RAF
sought to withdraw its offer which was already accepted by the
respondent, for reason that the respondent (then the plaintiff)
in
his claim against the Fund, had made misrepresentations to the effect
that he was dependant on the deceased for maintenance
and that the
deceased would have continued maintaining him had it not been for the
death occasioned by the motor vehicle accident.
Following an
investigation conducted after an offer was made in terms of Rule
34(1), it came out that the plaintiff was long separated
from the
deceased at the time of her death and that he was not dependent on
her. The court held on appeal that the concession of
merits by the
defendant did not mean an admission that the plaintiff was dependent
on the deceased. Of relevance in that case is
when the court said,
“
The general rule
for the amendment of pleadings is that leave to amend will not be
refused unless the application has not been made
in good faith or
where it would cause an injustice to the other side which cannot be
compensated by an award of costs.
[4]
To this extent the
onus
rests on the defendant to establish that the plaintiff will not be
prejudiced by it.
[5]
An
amendment will
inter
alia
be
allowed where, as in the present matter, a new ground of defence
comes to a defendant’s knowledge for the first time after
he or
she has filed a plea.”
[6]
[17]
I now turn to consider the circumstances
that make the Fund to want to resile from the offer or the compromise
reached with the
Plaintiff. It came up from the evidence led by both
the Defendant and the Plaintiff that Ms. Mdhluli and Mr. Rachoshi
were made
to sign the statements the contents of which were not read
to them. They did not know what was contained in the documents they
signed. Contrary to what is stated in the statements, they were not
made in front of a police officer and/or at a police station.
When
asked if they have objection in taking the oath, the statements
reflect “yes” as the answer given by both witnesses.
The
witnesses however testified that they were not made to take oath.
This in my view is misrepresentation that boarders along
fraud if it
happened the way these witnesses testified. I do not have evidence by
Mr. Nkosi who is said to be the one who made
Ms. Mdhluli to singn her
statement on what happened from his side or at least the alleged
police officer who “commissioned”
the statements. The
version by the witnesses will have to be accepted as is.
[18]
As there is no version by the Plaintiff
himself on what happened on the date of the accident, the statements
that were believed
to be affidavits were the only source of
information on how the accident took place, and indeed the only
information upon which
the offer was made by the Defendant. This
means the Fund did not have affidavits by the eye witnesses by the
time it made an offer,
although it may have thought it had.
[19]
The
other cause of concern is that besides the feebleness in the
statements, the evidence presented by the Plaintiff falls far short
of establishing negligence on the part of the insured driver. T
he
onus to show whether the insured driver was negligent and to what
extent, rests on the Plaintiff, who must show on a balance
of
probabilities that the insured driver was negligent and that the
negligence was the cause of the collision from which he sustained
the
bodily injuries. Section 19(a) of the
Road
Accident Fund Act
[7]
provides
that
“the
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage for which
neither the
driver nor the owner of the motor vehicle concerned would have been
liable but for section 21…” As the
court observed in
Krawa
[8]
,
the effect of this provision is that the Act does not alter the basic
requirements for delictual liability at common law.
[20]
Negligence in section 17(1) is therefore the
culpa
of
the common law and any defence available to a defendant at common law
is also available to the Fund in terms of the Act. It
also follows
that the common law principles applicable to damages, its existence
and the assessment or determination of the extent
thereof must
equally apply to a claim for compensation in terms of the Act, save
where it is expressly stated otherwise. In
Evans v Shield
Insurance Co. Ltd,
the Supreme Court of Appeal (the SCA) held,
“
To a great extent
the Act represents an embodiment of the common law actions relating
to damages for bodily injury and loss of support
where the bodily
injury or death is caused by or arises out of the driving of a motor
vehicle insured under the Act and is due
to the negligence of the
driver of the vehicle or its owner or his servant. Then in place of,
and to the exclusion of, the common
liability of such persons is
substituted the statutory liability of the authorized insurer.
Sections 21, 23 (a) and 27 indicate
that the statutory liability of
the authorized insurer is no wider than the common law liability of
the driver or owner would have
been but for the enactment of the Act
(indeed in certain instances it is narrower – see ss 22 and 23
(b)) and that this statutory
liability is dependent upon the
existence of a state of affairs which would otherwise have given rise
to such a common law liability
(
Workmen’s Compensation
Commissioner v Santam Bpk
1949 (4) SA 732
(C) at 740;
Rohloff
v Ocean Accident and Guarantee Corporation Ltd
1960 (2) SA 291
(A) at 297 E-G). The negligence upon which liability under s21 hinges
is the
culpa
of the common law and, save in certain specified
instances, the compensation claimable under s21 is assessed in
accordance with
common law principles relating to the computation of
damages.”
[21]
In applying the law to the facts, it
means the Plaintiff should prove negligence on the part of the
insured driver before the Fund
could be liable. There is doubt in the
mind of the court if Mr. Rachoshi actually saw the impact between the
motorbike and the
white motor vehicle. The reason for this is his
failure to tell which of the two motor vehicle knocked the other, to
the extent
that he says they knocked or bumped each other or that he
could not say which of the two was at fault. Without apportioning any
blame on him, this is a far cry from what was inserted in a statement
attributed to him where he is alleged to have made a “submission
that the white motor vehicle touched the motorbike causing its rider
to lose control.” Even if it was to be accepted that
he saw a
collision, whatever he saw cannot be said to be negligence on the
part of the white motor vehicle driver. Given how the
motorbike is
said to have overtaken the said vehicle by Mr. Rachoshi, and that the
“bumping” took place on the proper
lane in which it was
traveling, the closest that one can glean from that evidence is that
it was the motorbike rider who was negligent,
not the other way
round.
[22]
The
facts above should be seen in light of the decision by the SCA
in
P M obo T M v Road Accident Fund.
[9]
In
this matter, the appellant argument was that the court had no right
to order the trial to proceed on merits irrespective of the
settlement agreement reached between the parties, merely because from
the pleadings, the court could not see any negligence on
the part of
the insured driver. The appeal was dismissed with the SCA holding
that the court could reject a settlement where it
makes no sense in
its view on why there was any settlement in the first place. This in
essence would entail that even without any
withdrawal by the
Defendant
in
casu
,
the court could still have questioned the affidavits which are no
affidavits and even order the trial to proceed on merits for
that
reason.
[23]
Although the withdrawal by the Defendant
came up by way of trial as opposed to an application to amend the
pleading, I do not see
any prejudice on the part of the Plaintiff.
This matter was set down for trial on merits and no one was taken
aback by the decision
to proceed on merits. The Plaintiff had the
full opportunity to counter the evidence presented if he wanted to.
Instead, the Plaintiff
seemed to lay a foundation for the Defendant’s
evidence in the evidence he presented through Mr. Rachoshi.
[24]
It follows therefore that the Defendant
stands to be allowed to withdraw the offer as it was based on
documents believed to be affidavits
while they were not and the said
statements were a misrepresentation of facts not given by the
witnesses, or at least, not confirmed
by them. Moreover, there is no
evidence led showing negligence on the part of the insured driver.
While I accept the argument advanced
on why the Plaintiff could not
give evidence in respect of the withdrawal of the offer, I do not
have any submission on why he
did not give evidence on merits of the
case while it was known that the trial was on the merits and that the
question of withdrawal
of the offer was just one of the aspects to be
decided in the trial. The court voiced the desire to hear the
Plaintiff and this
could not be done for reason that it was alleged
that he could not remember the incident. No evidence was however led
on his loss
of memory either by himself or by the medical experts.
[25]
The claim stands to be dismissed for the
reasons stated above. There is no reason why costs should not follow
suit.
[26]
The following order is therefore made:
[26.1] The claim is
dismissed with costs.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF
: ADV. L BOTHA
INSTRUCTED
BY
: DU TOIT-SMUTS ATTORNEYS
MBOMBELA
FOR
THE DEFENDANT : MR. S
SIBIYA
INSTRUCTED
BY
: STATE
ATTORNEY
MBOMBELA
DATE
HEARD
: 07, 09 & 10 MARCH 2022
JUDGMENT
DELIVERED : 04 APRIL 2022
[1]
1965
(3) SA 601
(A) at 608G-609B.
[2]
1947
(4) SA 715 (C)
[3]
2012
(2) SA 346 (ECG)
[4]
Erasmus
op
cit
at B1-178A.
[5]
Erasmus
op
cit
at B1-179.
[6]
Krawa
(supra)
at para 48. See
Erasmus
op
cit
at B1-178A & 179. See also and
Frenkel,
Wise & Co Ltd v Cuthbert
1947 (4) SA 715 (C).
[7]
See
section 17(1)
of the
Road Accident Fund Act, 56 of 1996
.
[8]
Supra
at para 21.
[9]
2019
(5) SA 407
(SCA).