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2022
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[2022] ZAMPMBHC 24
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Mapaile and Others v Road Accident Fund (3394/20;1167/21;1952/20; 2205/20;856/20;84/21;321/20;3975/19;311/20;759/21) [2022] ZAMPMBHC 24 (9 May 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NUMBERS:
1.
3394/20
2.
1167/21
3.
1952/20
4.
2205/20
5.
856/20
6.
84/21
7.
321/20
8.
3975/19
9.
311/20
10.
759/21
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
06
April & 09 May 2022
In
the matters between:
BABUSIYE
LINKIE MAPAILE
APPLICANT IN CASE. 1
OBREY
MATHEBULA
APPLICANT IN CASE. 2
NHLANHLA
NGWENYA
APPLICANT IN CASE. 3
MIRRIAM
THANDI NKOSI
APPLICANT IN CASE. 4
HENDRY
CHRISTOPHER MBETHE
APPLICANT IN CASE. 5
JAN
ELMON MOKOENA
APPLICANT IN CASE. 6
ROBBER
CHAUKE
APPLICANT IN CASE. 7
JAKU
HENDRY MABIZELA
APPLICANT IN CASE. 8
MANDLA
MZIMBA
APPLICANT IN CASE. 9
MILDRED
PULENI KHOZA
APPLICANT IN CASE. 10
and
ROAD
ACCIDENT FUND
RESPONDENT
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 06 April 2022. The costs order judgment is
handed down on 09 May 2022.
JUDGMENT
RATSHIBVUMO
J
[1]
The 10 applications above were consolidated for purposes of hearing
and judgment as they are identical both in nature and purpose and
they are aimed against the same Respondent. These are the
applications
to compel the Respondent to either accept or reject the
RAF 4 Serious Injury Assessment Forms submitted by each one of the
Applicants.
The applications are brought in terms of the Promotion of
Access to Justice Act, no. 3 of 2000 (PAJA).
[2]
The completion of the RAF 4 form was done in compliance with the
provisions of section 17 of The Road Accident Fund Act, no. 56 of
1996 (the Act) which provides,
(1) The Fund or agent
shall be obliged to compensate any person (the third party) for any
loss or damage which the third party has
suffered as a result of any
bodily injury to himself or herself or the death of or any bodily
injury to any other person, caused
by or arising from the driving of
a motor vehicle by any person at any place within the Republic, if
the injury or death is due
to the negligence or other wrongful act of
the driver or of the owner of the motor vehicle or of his or her
employee in the performance
of the employee's duties as employee:
Provided that the obligation of the Fund to compensate a third
party for nonpecuniary loss shall be limited to compensation for a
serious injury as contemplated in subsection (1A)
and shall be
paid by way of a lump sum.
(1A)(a) Assessment of a
serious injury shall be based on a prescribed method adopted after
consultation with medical service providers
and shall be reasonable
in ensuring that injuries are assessed in relation to the
circumstances of the third party. [My emphasis].
[3]
The provisions above should be read alongside the Regulation 3(3)
of
the Act, parts of which provide,
“
3(3)(a) A third
party whose injury has been assessed in terms of these Regulations
shall obtain from the medical practitioner concerned
a serious injury
assessment report.
…
(c) The Fund or an agent
shall only be obliged to compensate a third party for non-pecuniary
loss as provided in the Act if a claim
is supported by a serious
injury assessment report submitted in terms of the Act and these
Regulations and the Fund or an agent
is satisfied that the injury has
been correctly assessed as serious in terms of the method provided in
these Regulations
…
(dA)The Fund or an agent
must, within 90 days from the date on which the serious injury
assessment report was sent by registered
post or delivered by hand to
the Fund or to the agent who in terms of section 8 must handle the
claim, accept or reject the serious
injury assessment report or
direct that the third party submit himself or herself to a further
assessment.
(e) The Fund or an agent
must either accept the further assessment or dispute the further
assessment in the manner provided in these
Regulations.
[4]
As it
appears well in paragraph 8 below, 90 days have already lapsed in
some of these applications and the Respondent has not taken
a
decision yet. Where an aggrieved party is not happy with an
administrative decision, PAJA provides that internal remedies should
be exhausted before he/she could approach the court for judicial
review.
[1]
This however does not
appear to include failure to take a decision, although that is also
seen as a decision. In the latter scenario,
the aggrieved party would
be justified to bring the failure to take a decision on judicial
review in order to compel the administrative
body to take a decision,
provided there has been unreasonable delay in taking a decision.
[2]
In
Road
Accident Fund v Duma
[3]
the Supreme Court of Appeal (the SCA) held the following,
To recapitulate; if
the Fund rejects the RAF 4 form - with or without proper reasons - it
means that the requirement that the
Fund must be satisfied that the
injury is serious has not been met. In that event, the plaintiff
cannot continue with its claim
for general damages in court. The
court simply has no jurisdiction to entertain the claim. The
plaintiff's remedy is to take the
rejection on appeal in terms of
regulation 3(4). It follows that the rejection cannot be ignored
merely because it was not raised
within a reasonable time.
This
does not mean, as was suggested, for instance, in
Louw
v
Road
Accident
Fund
(
supra
) at paragraph
82, that the Fund can avoid and frustrate every claim against it
indefinitely by simply not taking a decision either
way. The solution
is to be found in section 6(2)(g) read with section 6(3)(a) of PAJA.
These sections provide that if an administrative
authority
unreasonably delays to take a decision in circumstances where there
is no period prescribed
for
that
decision,
an
application
can
be
brought
"for
judicial
review
of
the
failure
to
take
the
decision".
Though PAJA sees this as a "ground of
review" it is really no different from the time honoured common
law remedy of
mandamus
(see eg
Cape
Furniture
Workers'
Union
v
McGregor
NO
1930
TPD 682
at 685-686). [My emphasis].
[5]
In light of
the above, there is no doubt therefore that the applicants who have
not heard anything from the Respondent, at least
90 days after
sending the required form are entitled to the order compelling it to
take a decision. The only concern I have is
in respect of costs. The
Fund is a public entity vested with the authority to receive and
investigate the claims and in deserving
cases, settles them. It is
the public that through compulsory fuel levy, contributes to the
purse which makes over R40 billion
in a year.
[4]
It is common knowledge that the RAF is operating in deficit and that
it is strained to the extent that Fisher J recommended that
it should
be placed under liquidation.
[5]
[6]
It is for
this reason that the courts frown at reckless litigation against the
Fund that may result in it being mulcted with unnecessary
costs. It
is for this reason that the Practice Directives of this Division
encourage the litigants to settle the claims against
the Fund at
least seven clear court days, to avoid unnecessary costs.
[6]
Any settlements on the date of trial invites an inquiry as to whether
it was the practitioner’s fault and why he/she should
not be
ordered to pay costs on a punitive scale and/or out of own pocket,
including forfeiture of appearance or day fee.
[7]
[7]
In my view, it would be unfair to expect the public to foot the bill
on costs if it is proved that they were occasioned by the deliberate
act or omission on the part of an identified or known individual.
The
papers filed in these applications suggest that there were Claims
Handlers and/or Senior Claims Handlers who were sent the
communications via emails and that none of them responded. I do not
see why Claims Handlers and/or Senior Claims Handlers should
not be
subjected to a similar inquiry that the legal practitioners are
constantly subjected to if there was dereliction of duties
on their
part. It would therefore be fair in my view to afford each and every
Claims Handler and/or Senior Claims Handler involved
in these
applications, an opportunity to state their version or their
involvement in the files and explain in particular, why they
were not
able to take decisions expected from them within 90 days as provided
in the regulations. That way, they would be able
to explain why they
should not be ordered to pay the costs or a portion thereof,
personally.
[8]
Following is the summary regarding the dates on which letters to
the
Respondent were dispatched, the details of the claims handlers and
other relevant information as contained in the files:
(PLEASE
FIND TABLE IN PDF)
[9]
According
to the regulations, the forms have to be served on the Respondent by
hand or by registered mail/post.
[8]
The regulations make no provision for service by e-mail. In all these
applications, service was done by email and by registered
mail/post.
In calculating the days that lapsed from the dates on which the forms
were served on the Respondent by registered mail,
the court is guided
on the definition of a “day” from the same regulations.
The regulations define a day as
any
day
other
than a Saturday, Sunday or public holiday
.
[9]
It would appear that the Applicant’s legal representative may
not have been alive to this definition in that in the first
case, he
caused a letter to be written to the Respondent on 14 February 2022
in which a reference is made to the email sent on
03 November 2021.
In the letter, the legal representative informs the Respondent that
90 days expired on 03 February 2022.
[10]
This clearly indicates that the author of the letter mistakenly
believed that a month has 30 days which can only be so when weekends
and holidays are not excluded.
[10]
If one is guided by the definition of a day referred to above, it
becomes apparent
that as of the date the application in the first
case was launched, 90 days had not yet lapsed. In this case, an
affidavit in support
of the application was written on 17 February
2022 some 73 days after the registered mail was dispatched to the
Respondent, on
04 November 2021. For that reason, the application in
matter no. 1 cannot succeed. For the same reason, matters no. 2, 3,
6, 9
and 10 also stand to fail. The applications have to be
successful in respect of the remaining matters being cases no. 4, 5,
7 and
8.
Order
[11]
In light of the above, the following order is made:
[11.1] In matters
2205/20, 856/20, 321/20, 3975/19, the Respondent
is ordered to take a decision in terms of Reg 3(3)(c) and 3(3)(d) of
the Regulations
promulgated in terms of Act no. 56 of 1996, within 30
days from the date of this order.
[11.2] The application is
dismissed in respect of cases
3394/20, 1167/21,
1952/20, 84/21, 311/20 and 759/21 with no cost order.
[11.3] The Claims
Handlers and the Senior Claims Handlers in matters
2205/20
(
Rito
Makhubele & Natasha Coetzer)
,
856/20 (
Malvin
Khoseni & Tsholofelo Ramatlapeng)
,
321/20 (
Keith
Wakeford & Erika le Roux)
,
3975/19 (
Sandisiwe
Mgobo & Tsholofelo Ramatlapeng)
are
ordered to file affidavits with the Registrar of this Division (via
email:
imasilela@judiciary.org.za
)
by no later than 27 April 2022, explaining themselves as detailed in
paragraph 7 of this judgment.
[11.4] Costs in matters
2205/20, 856/20, 321/20, 3975/19 are reserved pending the inquiry to
be conducted on 05 May 2022.
[11.5]
The proceedings are postponed until 05 May 2022 at 09h00 for inquiry,
on which day the Claims Handlers and Senior Claims
Handlers in
matters 2205/20, 856/20, 321/20, 3975/19 are ordered to be present on
virtual platform the link of which shall be provided
by the
Registrar, failing which they risk having the punitive cost order
envisaged in paragraph 7 of this judgment being made against
them in
their absence. The Claims Handlers and Senior Claims Handlers
are entitled to be legally represented for purposes of the inquiry if
they wish.
[11.6] A copy of this
order should also be served on the Chief Executive Officer of the
Road Accident Fund.
[12]
Postea
(05 May 2022). Inquiry on costs:
In compliance with
paragraph 11.3 of the order above, various affidavits were filed by
the respective Claims Handlers who also availed
themselves on virtual
platform for purpose of costs inquiry. The Claims Handlers and the
Road Accident Fund further appointed Mpoyana
Ledwaba Inc as their
attorneys for purpose of the inquiry. Adv. Majozi was briefed to
represent them.
[13]
Matter no. 4: Nkosi v RAF
. The Applicant’s legal
representatives had identified Rito Makhubele and Natasha Coetzer as
the Claims Handlers involved
in this case. The two Claims Handlers
however disputed being involved in this case saying it was never
allocated to them. Ms Makhubela
alleged in her affidavit that she was
copied in email correspondence from the Applicant’s attorneys,
but at the time, she
was on maternity leave and the matter was not
allocated to her.
[14]
Ms. Coetzer testified that the Link Number used by the Applicant’s
attorney
was wrong. The correct link was 4928948, not 4928945. Once
she was served with judgment on merits in this case, she made efforts
to trace this file and established the correct Link Number. To do
this was a long process. Once this was done, she allocated the
file
to a Claims Handler who accepted the claim on behalf of the
Respondent. An offer was thereafter made which was accepted by
the
Applicant. The matter has since been settled.
[15]
Matter no. 5: Mbethe v RAF
. The Applicant’s legal
representatives had identified Malvin Khoseni & Tsholofelo
Ramatlapeng as the Claims Handlers
involved. These were however not
the correct Claims Handlers involved in this case. Ms. Ramatlapeng
testified that this case was
allocated to Ms. A Netshisaulu in
October 2021. In her affidavit, Ms. Netshisaulu alleges that when the
file was allocated to her,
it did not have the RAF 4 form. It was
only after the judgment in this matter that she was sent the RAF 4
form by the Applicant’s
attorneys which enabled her to accept
the claim on behalf of the Respondent and make a settlement offer to
the Applicant. The matter
has since been settled.
[16]
Matter no. 7: Chauke v RAF
. The Applicant’s legal
representatives had identified Keith Wakeford and Erika le Roux as
the Claims Handlers. It again turned
out that these parties were in
no way involved in this matter. The correct Claims Handler was Mr. L
Mukwena. From the affidavit
prepared by Mr. Mukwena testified that he
only learned that the matter was allocated to him in February 2022
when an email from
the Applicant’s attorneys was forwarded to
him by Mr. K Wakeford. The matter was however allocated to him in
October 2021
without any communication to him about that allocation.
As a Claims Handler, he and his colleagues have to deal with between
200
and 250 files at any given moment which sometimes proves to be
too much.
[17]
He further testified that when he checked the file in February 2022,
it was empty.
On 21 February he wrote an email to the Applicant’s
attorneys asking them to furnish him with all the lodgement
documents.
Unfortunately, there was no response to this request. The
Applicant’s attorneys must have known already by then that Mr.
Mukwena was the Claims Handler in this case as the email from Mr. K
Wakeford dated 18 February 2022, in which he was informed that
the
matter was allocated to him, was also copied to them.
[18]
On 13 April 2022, he again received an email from Mr. Wakeford in
which the Applicant’s
attorneys had sent to him (Mr. Wakeford)
the lodgement documents. He testified that once these were forwarded
to him, and on 19
April 2022, he accepted the claim on behalf of the
Respondent and sent a settlement offer to the Applicant’s
attorneys. This
matter has since been settled in full.
[19]
Matter no. 8: Mabizela v RAF
. The Applicant’s legal
representatives had identified Sandisiwe Mgobo & Tsholofelo
Ramatlapeng as the Claims Handlers.
These were again wrong parties as
Mr. L Mbonane was the one to whom the case was allocated. It is not
clear as to what Mr. Mbonane
did with the case, but he has since been
transferred to East London branch of the RAF. No affidavit was filed
by him as he was
not identified in the judgment and no one from the
RAF thought he should be invited to do so as he has been transferred
to another
branch. This matter was settled in full in April 2022 and
the Claims Handler who attended to its settlement is Mr. Seopela who
has since left the RAF.
[20]
From the submissions above, it became clear that the fingers of the
Claims Handlers
were pointed at the Applicants’ legal
representatives for various reasons: Picking up Claims Handlers “at
a whim”
and sending emails to them without ascertaining first
if they were indeed the correct Claims Handlers for such files.
Sending files
without all the required lodgement documents. Failure
to respond to emails from the RAF and rushing to commence motion
proceedings
ignoring the escalation avenue provided to them by the
Respondent in terms of which non-compliance can be escalated to
certain
senior officers within the RAF.
[21]
The Applicants’ attorneys responded through an affidavit
deposed to by Ms.
E Van Heerden, a correspondent attorney for the
Applicants. In it she denies most of the accusations levelled against
them. The
source of the names of the Claims Handlers was a
spreadsheet that was sent to her by Cindy Ntsiyene, an employee of
the Respondent,
on 02 October 2020. The spreadsheet was meant to
inform various legal representatives as to the identities of the
Claims Handlers
to whom files were allocated following the
termination of the panel of attorneys’ mandate by the RAF.
[22]
Ms. Van Heerden further asserts that in matter no. 4 above, Ms.
Coetzer could have
undertaken the efforts she finally put in place
after the judgment, much earlier in order to establish the correct
link number
if she wanted to, but she chose not to do so. She
admitted that in matter no. 7, there was an email sent from the
Claims Handler
to which a candidate attorney from her office did not
respond. She explained that such was an administrative error on his
part.
An affidavit by him confirming this position was also filed.
[23]
It is common cause that the Applicants’ legal representatives
relied on a spreadsheet
that had been sent to them about a year
earlier to identify the Claims Handlers involved in their claims.
This was done without
ascertaining again if the said officers were
still involved in the particular claims. It turned out that the
Claims Handlers in
all these cases had changes. The spreadsheet
cannot be the only source of information for the Applicants as at
least one of the
Claims Handler’s name (Mr. Wakenford) was not
in it. Mr. Wakenford was not even working for the RAF at the time the
spreadsheet
was developed and sent to the Applicants’
attorneys. It appears he was regarded as a Claims Handler simply
because at one
stage, he attended to the file and communicated to the
attorneys over it. But attending to a file does not make one a Claims
Handler.
More was needed to be done by the attorneys to establish the
identity of a Claims Handler.
[24]
Failure to establish the identity of Claims Handler may be indicative
of haste in
which the claim and the application was launched, paying
little attention to exactitude. The same can be said of the claim in
which
the link number was wrong (see matter no. 4). I am not
persuaded that Ms. Coetzer should have established the correct number
earlier
as argued. It is not her responsibility to correct the errors
of the Applicants. She also made it clear that it took her a long
process to find out the correct number. Although counsel for the
Respondent started his submission favouring the award of costs
in
favour of the Applicants, the unmasking of these errors led him to
alter his submissions, arguing rather that the Applicants
should be
denied the costs.
[25]
Counsel for the Applicants argued that this would be unfair as the
Respondent did
not show that the escalation process was communicated
to them. Failure to respond to request for lodgement documents was a
once
off error for which the attorneys should not be punished. It was
only one email that they did not respond to.
[26]
I agree that a diligent legal representative would have done more
than just rely
on a year-old document, to establish the identity of
the Claims Handlers. I also agree that in not escalating the
predicaments
of the Claims Handlers not responding to the
correspondence, the legal representatives displayed a rushed approach
that creates
an impression that the application that followed may not
have been aimed only at compliance, but the costs that come with the
order.
[27]
What the Applicants’ legal representative refers to as an
administrative error
resulted from paying no particularity to the
matter. This blunder is however diminished by the fact that the
documents that gave
rise to the application were sent by registered
post as required by the regulation. The correct claim or link number
was quoted
in the registered mail sent to the Respondent. Escalation
of non-compliance by Claims Handler could be a less expensive
approach,
but it does not bar the attorneys from approaching the
court for relief once the ninety days’ period expires.
Moreover, there
is no proof that the avenue of escalating
non-compliance was communicated to the Applicants’ legal
representatives. This
I say mindful of the natural expectations that
a diligent attorney should be able to escalate any non-compliance
before rushing
to court so as to exhaust internal remedies.
[28]
Having said that, I do not find any justification in not responding
and thereby not
providing the Claims Handler with the documents he
asked for in matter no. 7. This was the only one email sent by the
Respondent
that was not responded to, but the Respondent did not have
to send many emails to elicit a response. While errors like these
happen,
the attorneys have to justify why they would still be
entitled to costs. Once the documents were made available, it took
the Respondent
nine days to make an offer. From the date the email
was dispatched requesting the documents, more than nine days lapsed
from the
day the request was made and not responded to, to the date
of the application. A response to this email would have rendered the
application unnecessary as it would have been acted upon and possibly
settled as it was when documents were availed. I am therefore
of a
view that the Applicant in this case is not entitled to costs.
[29]
The Applicants are entitled to costs in respect of the rest of the
case. There is
however no justification in ordering the Claims
Handlers to pay the costs from own pockets as they were able to
demonstrate that
the problem is within the Respondent’s system
than with them (the Claims Handlers).
In casu
, wrong Claims
Handlers were also identified. For these reasons, it is recommended
that the Respondent looks into the following
measures that can help
avoid unnecessary expenses on costs by the RAF.
a)
Choosing not to defend and/or oppose matters before courts could save
legal costs
but may also result in even more costs being paid
especially in matters that the RAF was supposed to be defending or
opposing.
The blanket practice of not defending and/or opposing
matters should as such be reconsidered.
b)
When both parties are represented, it helps the courts to focus on
their judicial
responsibilities without appearing to descend into the
arena.
c)
The RAF should investigate a number of files the Claims Handlers deal
with at
any given moment, and if necessary, the workload should be
reduced, spread or shared so they (Claims Handlers) can focus and pay
more attention on the matters allocated to them.
d)
Claims Handlers should be allowed to deal with their files for the
duration from
first allocation to their finality and avoid quick and
unnecessary re-allocation to new Claims Handlers. Where a
re-allocation
is necessary, it should be clearly communicated to the
legal representatives and the Claims Handlers themselves.
e)
Claims Handlers need to be informed in writing whenever files are
allocated to
them. The legal representatives should also be informed
of the allocation at the same time.
f)
Upon allocation, all the documentation already in the file should be
made
available to a Claims Handler upon allocation.
[30]
For the reasons above, the following order is made
[31.1] The Respondent is
ordered to pay party and party costs in respect of matters no. 4, 5 &
8.
[31.2] No costs order is
made in respect of matter no. 7.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANTS : ADV. KW VAN
HEERDEN (merits)
:
ADV. MS JANSE VAN RENSBURG (costs)
INSTRUCTED
BY
: FRANS SCHUTTE &
MATTHEWS
PHOSA
INC
C/O
SDJ INC
MBOMBELA
FOR
THE RESPONDENT : NO APPEARANCE (merits)
:
ADV M MAJOZI (costs)
INSTRUCTED
BY
: MPOYANA LEDWABA
INC
C/O
TP RADEBE ATTORNEYS
MBOMBELA
DATE
HEARD
: 04 MARCH 2022 (merits)
JUDGMENT
ON MERITS
DELIVERED
: 06 APRIL 2022
DATE
HEARD
: 05 MAY 2022 (costs)
JUDGMENT
ON COSTS
DELIVERED
: 09 MAY 2022
[1]
See
section 7(2) of PAJA. See also
Koyabe
and
others
v
Minister
for
Home
Affairs
and
others
(
Lawyers
for
Human
Rights
as
amicus
curiae
)
2010 (4) SA 327
(CC) at paragraphs 35-37
[2]
See
Mlatsheni
v
Road
Accident
Fund
2009 (2) SA 401 (E)
[3]
2013 (6) SA 9
(SCA) at para 20
[4]
See
TM
v Road Accident Fund
2021
(2) SA 618
(GJ)
at
para 6.
[5]
Auret
N.O obo Kieser v Road Accident Fund
(14206/2014)
[2020] ZAWCHC 192
(28 April 2020) at para 62 and
TM
v Road Accident Fund (supra)
at
para 133
.
[6]
See
Directives 13 & 14 of this Division.
[7]
See
Directive no. 14.5 of this Division.
[8]
See Reg 3
supra
.
[9]
See
Reg 1 of the regulations.
[10]
See
An
nexure
E1 on p. 66 of the paginated bundle in case 3394/2020.