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[2022] ZAMPMBHC 38
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Noortman v Road Accident Fund (517 / 2019) [2022] ZAMPMBHC 38 (1 June 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 517 / 2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
01
June 2022
In
the matter between:
JACOBUS
KARMEN NOORTMAN
APPLICANT
AKA
KARMANN
NOORTMAN
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 01 June 2022.
JUDGMENT
RATSHIBVUMO
J
[1]
In this application, the Applicant seeks an order
in the following terms: (1) That the Respondent rectify the claimant
details captured
in the RAF system to reflect the correct identity
number of the Applicant to read [....]. (2) That the Respondent
rectify, alternatively
replace link no 4456301 to reflect the
claimant’s correct details as Karmann Noortman Identity number
[....].
[2]
The application is unopposed as it seems to be the
trend lately that matters against the RAF are largely unopposed. At
first glance,
this appears to be an innocent application to rectify
some typos entered into the RAF digital system that are making it
difficult
for the claim to be processed. Upon perusal of the file, it
turns out to have been a planned misrepresentation meant to defraud
RAF which is not working out the way it was planned. The courts are
now called upon to help in legitimising the misrepresentations
made
with a view to still have a claim against the RAF processed. It is
for this reason that the names of the applicant reflected
on the
front page of this judgment are two being Jacobus Karmen Noortman and
Karmann Noortman. This is not one and the same person.
As illustrated
below, these are brothers who were born on different dates, with
different names and have different identity numbers.
How the two
brothers feature in one file held in this division and also by the
Respondent is the subject of this application.
[3]
The
following is the brief history that led to the current application.
As a commencement of a claim against the Respondent, the
Applicant’s
attorneys completed the RAF 1 Form
[1]
and lodged it on 31 July 2018. Part 1 of the form that requires the
details of the claimant was completed as follows: SURNAME:
NOORTMAN.
NAME: JACOBUS KARMEN. DATE OF BIRTH: [....]. ID NUMBER: [....].
[2]
This form must have been lodged together with a copy of the identity
document reflecting these details as part 1 of the form requires
“a
certified legible copy of the identity document” to be attached
to the claim form. Further details in the form reflect
that the
claimant was involved in an accident on 20 February 2017.
[3]
The details of the other driver involved in an accident with the
claimant were reflected as “unknown” and that the
said
driver was “deceased.”
[4]
According
to the founding affidavit, it was after the Claims Handler of the
Respondent put in the identity number in the RAF 1 Form
that the
system reflected the details that did not match the information in
one of the expert reports.
[4]
In
this report, the claimant had indicated that he had not been in a
motor vehicle accident in the past. The information at the
Respondent
disposal was that the bearer of the ID number as per RAF 1 Form had
been in at least three motor vehicle accidents prior
to the current
one. The system also reflected that he lodged the claims with the
Respondent in all of these accidents with one
of them having been
settled. One of those accidents had apparently taken place only about
two months before the date of the accident
reflected in the RAF 1
Form.
[5]
[5]
The discovery of conflict in the information was
relayed to the claimant by the Respondent. This prompted the claimant
to give new
details different to those provided initially in the RAF
1 which he claims to be his and it is these details that the
Respondent
was asked to substitute as the correct details of the
claimant. The particulars of claim were also amended to reflect the
“correct”
details of the plaintiff. When further
correspondence from the Respondent to the Applicant’s attorneys
continued to reflect
the names that should have been amended as
requested, this application was launched as reflected in paragraph 1
above.
[6]
It turns out from the founding affidavit that the
claimant’s details furnished in the RAF 1 Form (the first
claimant) are
those of a brother to the man whose “correct”
details are sought to be reflected in the Respondent’ system as
per paragraph 1 above (the second claimant). In the application, two
copies of identity document were attached. One of these reflects
ID
number [....] as belonging to Noortman Johannes Gerhardus (the first
claimant). The other one reflects ID number [....] as belonging
to
Noortman Karmann (the second claimant). It is clear that this claim
was lodged under a different name or person (the first claimant)
to
that of the Applicant (the second claimant). I do not understand how
such a misrepresentation can just be “amended”
with a
stroke of a pen as if it is nothing serious. It also brings a
question on whether the Applicant has
locus
standi
to amend the first claimant’s
claim
[7]
Further details in the file are concerning. It is
common cause that the first claimant was involved in a motor vehicle
accident
on 24 December 2016 of which he even lodged a claim with the
Respondent. The first claimant is alleged to have died on 14
September
2020. It is a great concern to the court that the identity
of the person examined by the different experts who compiled the
reports
remains unknown. The said experts compiled the reports
indicating the details of a person they saw by writing his identity
numbers
and his dates of birth therein. The person examined by the
Orthopaedic Surgeon for example, is the first claimant. If the
details
of the claimant are switched to those of the Applicant (the
second claimant) as requested, what will happen to the reports in the
file that do not belong to him?
[8]
The
Applicant’s attorney trivializes the discrepancies by offering
an explanation that I find to be highly improbable. As
to why the
details of the first claimant such as his identity number were
written in the Life Med Ambulance Services (apparently
also submitted
with the lodgement documents to the Respondent), he blames this on
the paramedics who attended to the Applicant
at the scene of the
accident who also knew him personally. They are said to have
completed the form using the details from the
identity card that they
found in the motor vehicle driven by the Applicant.
[6]
[9]
This version however fails to answer why the
paramedics choose to insert only the identity numbers and not the
names as per the
same identity card they had in their hands. The
names reflected as those of the Applicant are not identical to those
reflected
in the identity card with the identity number they wrote.
This is very unlikely especially in the totality of the evidence in
which
the Applicant always presented himself as the first claimant.
It is not clear as to where the Applicant’s attorneys got this
version from as no confirmatory affidavit by the person who completed
this form was attached to the application.
[10]
He
further explains that the Orthopaedic Surgeon, Dr. Mncina, wrote the
wrong names and identity numbers in the report because he
used the
lodgements papers to complete it.
[7]
It is not clear where he acquired this information as there is no
affidavit by Dr. Mncina confirming this. It would be very
irresponsible
and abdication of duties for Dr. Mncina to do this.
Contrary to this submission, Dr. Mncina in his report recorded the
documents
that were made available to him when completing it as
including a copy of ID.
[8]
This
entails that whoever was seen by this doctor (between the two
brothers), he was in possession of an identity document of the
first
claimant.
[11]
The
court’s reservations should be seen in light of the following
other aspects. The Applicant, claims to have been admitted
at Rob
Ferreira Hospital after the accident. Rob Ferreira however later told
him that they could not find a record or file in his
names.
[9]
He attested to this in his affidavit dated 26 July 2018. It is as
such not surprising that no hospital records were attached to
the
pleadings. However, the Occupational Therapist, Ms. EN Ngobeni, who
examined the Applicant on 15 August 2017 (11 months earlier)
recorded
that amongst the documents availed to her when assessing the
claimant, were the hospital records from Rob Ferreira Hospital.
[10]
One cannot tell where these came from or whose details are in these
records between the two brothers as they have not been attached
to
the pleadings. In fact, 11 months after they were made available to
the Occupational Therapist, the first claimant deposed to
an
affidavit (albeit signed by the Applicant) in which he stated that
the file with the hospital records could not be located.
[12]
Moreover, according to RAF 1 Form, and in this
application, the Applicant was said to have been employed as a tow
truck driver at
the time of the accident. It is very worrying that
from the report compiled by the Industrial Psychologist, the
Applicant claimed
to have been an Electrician who earned R20 000.00
per fortnight at the same time. The Industrial Psychologist was
however
able to pick up the discrepancies as she had the applicant’s
salary proof that reflected his salary to have been around R14 000
per month, way below half of what he claimed to earn. The Applicant
also informed the Industrial Psychologist that he started working
as
a Police Constable in 1982. In 1982 the Applicant was only 17, four
years short of being an adult according to the law of the
time.
[13]
The court also noted that at the time summons was
issued, the details of the other motor vehicle were written as BT 85
MS GP. No
indication was made as to where this information came from
as in RAF 1 Form, these details were recorded as unknown.
[14]
The
court also has reservations on whether the attorneys on record have a
valid mandate to act on behalf of the Applicant as the
power of
attorney they have was issued in the identity of the first claimant
and not the Applicant.
[11]
The
more one reads this file, the more one is confronted with questions
for which there are no answers. With further investigations,
a lot
could be unmasked.
[15]
With the limited information made available in
this application, it is clear that misrepresentations were made to
the Respondent
which can cause it prejudice or potential prejudice.
Whether the experts were made to be part of the misrepresentations
unconsciously
so may require further investigations. As it stands, it
is unknown as to who of the two brothers was seen by the Orthopaedic
Surgeon
and the other experts, in particular, those with whom
consultation took place before the death of the first claimant. For
example,
the patient whose X-rays were taken by Drs. Van Rensburg &
Partners on 16 March 2017, gave his date of birth as 21 April 1967.
This is the date of birth of the first claimant who has since died
who was in an accident himself in December 2016.
[16]
This appears to have been a fully planned fraud
which needs to be investigated further by the police. The Director of
Public Prosecutions
should direct these investigations and take the
decisions he deems necessary in line with the National Prosecution
Authority Act,
No. 32 of 1998. The conduct by the Applicant’s
attorneys needs to be investigated by the Legal Practice Council.
[17]
In light of the above, the following order is
made:
[17.1] The application is
dismissed.
[17.2] The Registrar
should make this judgment together with the file to the following
institutions for investigations envisaged
in paragraph 16 of this
judgment:
[17.2.1] The Legal
Practice Council – Mpumalanga.
[17.2.2] The Director of
Public Prosecutions – Mpumalanga.
[17.2.3] The Station
Commissioner – Nelspruit Police Station.
[17.2.4] The Chief
Executive Officer – Road Accident Fund.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF
: MR. MEINTJIES
INSTRUCTED
BY
:
MEINTJIES & KHOZA ATTORNEYS
:
NELSPRUIT
FOR
THE DEFENDANT
:
NO APPEARANCE
DATE
HEARD
: 27 MAY 2022
JUDGMENT
DELIVERED
:
: 01 JUNE
2022
[1]
See
para 7.2 (p. 7) and 8.4 (p. 11) of the founding affidavit deposed to
by William Petrus Mentjies, the Applicant’s attorney.
[2]
See
p. 111 of the paginated bundle.
[3]
See
part 5 of the form on p. 112 of the paginated bundle.
[4]
See
the Orthopaedic Surgeon’s report compiled by Dr, Mncina on p.
99 of the paginated bundle.
[5]
See the Respondent’s
email dated 17 August 2020 on p. 27 of this application.
[6]
See para 8.3 of the
founding affidavit on p. 10.
[7]
See para 8.6 of the
founding affidavit on p. 11.
[8]
See p. 101 of the
paginated bundle.
[9]
See
Applicant’s affidavit on p. 135.
[10]
See para 1.3 of the
Occupational Therapist report on p. 77 of the paginated bundle.
[11]
See the Special power of
attorney signed by Jacobus Karmann Noortman with ID no. 670421 5078
081 on p. 24 of the paginated bundle.