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[2022] ZANCHC 80
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Voss v Road Accident Fund (2091/2019) [2022] ZANCHC 80 (13 September 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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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2091/2019
Heard
on: 25/08/2022
Delivered
on: 13/09/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
SIYAMTHANDA
VAUGHAN VOSS
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MAMOSEBO
J
[1]
At the heart of this application is whether the defendant should be
held liable to
the plaintiff for damages that he suffered as a result
of the collision that occurred on 22 June 2018 at approximately 23:00
in
Quinn Street, Kimberley, in the Northern Cape. The plaintiff
was the driver of a Nissan Almera with registration numbers CA
[....]
and the driver of a white Corsa utility bakkie who is unknown and of
which the registration particulars of his vehicle are
also unknown.
[2]
The plaintiff issued summons out of this Court on 18 September 2019.
The plaintiff’s
version is that the collision occurred
when the driver of the utility bakkie who was driving in front of his
vehicle abruptly and
without warning applied the
brakes of his
vehicle resulting in the Corsa utility being brought to a complete
halt in front of his vehicle
. Resultantly, the plaintiff’s
vehicle veered to the right and collided with a tree. According
to the plaintiff,
the collision was caused by the negligence of the
other driver in one or more of the following ways:
2.1
He failed to keep a proper lookout;
2.2
He drove at a speed that was excessive having regard to the
circumstances prevailing at the time of the collision;
2.3
He failed to apply the brakes of the insured motor vehicle
timeously
or at all, at a stage and/or time when he could and/or
should have done so;
2.4
He failed to take evasive action or to keep the vehicle under proper
control at a stage when he could and
should have done so;
2.5
He failed to avoid a collision when by exercising reasonable care he
could and should have done so.
[3]
In his particulars of claim the plaintiff pleaded that he suffered
the following serious
bodily injuries as a result of the collision:
3.1
Left comminute midshaft femur fracture requiring open reduction and
internal fixation;
3.2
A head and possible brain injury;
3.3
Injury to the left of the jaw;
3.4
Soft tissue injury of the left knee;
3.5
Various bruises, abrasions and cuts;
3.6
Emotional shock and trauma.
[4]
The plaintiff now claims damages in the amount of R900,000.00 (Nine
Hundred Thousand
Rand) calculated as follows:
4.1
Past hospital, medical and other associated costs
R200,000.00
4.2
The plaintiff is entitled to an undertaking in terms of s
17(4)(1) of the Act which a defendant usually
tenders as a matter of
course
4.3
Loss of income and earning capacity
R700,000.00
TOTAL
R900,000.00
[5]
The defendant’s pleaded case is that the plaintiff was the sole
cause of the
collision in that:
5.1
He failed to keep a proper lookout;
5.2
He drove at an excessive speed;
5.3
He failed to apply the brakes of his motor vehicle timeously or at
all, at any stage and/or time when he could
and/or should have done
so;
5.4
He failed to take evasive action or failed to keep the vehicle under
proper control at any stage when he could
and should have done so;
5.5
He failed to avoid a collision when by exercising of reasonable care
he could or and should have done so;
5.6
He was intoxicated at the time of the collision;
5.7
He failed to keep a proper, safe and or adequate distance between
himself and the insured vehicle.
[6]
On 01 December 2021, the plaintiff represented by Mr S Greyling and
the defendant
represented by Ms B Rabie attended my chambers with a
draft order to be made an order of Court. The parties had
agreed on
the apportionment of damages. I asked the following
pertinent questions on aspects that caused me discomfort:
6.1
Was the plaintiff a licenced driver when the collision occurred?
6.2
Was the plaintiff unrestrained (without a fastened seatbelt) when he
drove the said motor vehicle?
6.3
Since the hospital records bear an inscription that the plaintiff was
intoxicated on the day of the incident
and at the time of examination
by the medical doctor what the effect thereof on this claim is.
[7]
Consequently, the parties sought a postponement by agreement to 25
August 2022 and
the plaintiff tendered costs occasioned by the
postponement.
[8]
On 15 August 2022, 10 days before the date of the hearing, I was
handed the plaintiff’s
heads of argument without the
Registrar’s stamp but dated 12 August 2022 and served on the
State Attorney on the same date.
The State Attorney served and
filed the defendant’s heads of argument on 23 August 2022. The
practice of filing
directly with the Judge’s registrar is
deprecated, as the rules require documents to be served and filed
with the office
of the registrar.
[9]
On 25 August 2022 the plaintiff, on this occasion assisted by Adv.
C.R. Van Onselen,
and the defendant, this time represented by Mr MA
Mogano from the State Attorney’s office, attended my chambers
with a revised
draft order. From the reading of para 1 of the
draft, it is clear that prior to this date, there was no application
made
to Court for separation of the merits and quantum in terms of
Rule 33(4) of the Uniform Rules of Court. I will revert to this
aspect later in the judgment. The revised draft reads:
“
1.
Merits (liability) and quantum are separated in terms of the
provisions of Rule 33(4);
2.
The quantum portion of the plaintiff’s action is postponed sine
die with costs in the
cause;
3.
The defendant is declared to be liable for 20% (TWENTY PERCENT) of
the plaintiff’s
proven or agreed damages arising from injuries
which were sustained by the plaintiff in the accident which occurred
on 22 June
2018;
4.
The defendant is ordered to pay the plaintiff’s taxed or agreed
costs with respect
to the merits of the plaintiff’s claim on
the party and party High Court scale, subject to the discretion of
[the] Taxing
Master inclusive of, but not limited to:
4.1
The fees of counsel on the High Court scale, inclusive of counsel’s
reasonable day fee for 25 August 2022;
4.2
The costs of consultation between the plaintiff and his legal
representatives to discuss the terms of the order;
4.3
The reasonable taxable accommodation and transportation costs
(including Toll and E-Toll charges) incurred by or on behalf
of the
plaintiff in attending the court and in respect of consultations with
the plaintiff’s legal representatives;
4.4
The above costs shall be paid into the trust account of the
plaintiff’s attorneys of record, Adams & Adams,
details of
which are as follows
[1]
:
4.5
It is recorded that the plaintiff’s instructing attorneys do
not act on a contingency fee basis.
5.
The following provisions will apply with regards to the determination
of the aforementioned
taxed or agreed costs:-
5.1
The plaintiff shall serve the notice of taxation on the defendant;
5.2
The plaintiff shall allow the defendant 180 (ONE HUNDRED AND EIGHTY)
court days to make payment of the taxed costs from
date of settlement
or taxation thereof;
5.3
Should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the applicable interest
rate on the
taxed or agreed costs from the date of allocator to date of final
payment.
5.4
The plaintiff shall not issue a writ prior to the expiry of the
180-day periods.”
[10]
Mr Van Onselen raised two issues:
10.1
The jurisdiction of a Court regarding an
inter partes
settlement
of a matter; and
10.2
The issues that I raised as already referred to at para 6 (above).
The
Court’s
Jurisdiction
[11]
The starting point for me is to reiterate the principle enunciated by
the Constitutional Court
in
Matatiele
Municipality and Others v President of the RSA and others
[2]
where
Ngcobo J pronounced:
“
[67]
Here, we are concerned with a legal concession. It is trite
that this Court is not bound by a legal concession
if it considers
the concession to be wrong in law. Indeed, in Azanian Peoples
Organisation (AZAPO) and Others v President
of the Republic of South
Africa and Others
[1996] ZACC 16
;
[1996 (4) SA 671
(CC)], this Court firmly rejected
the proposition that it is bound by an incorrect legal concession,
holding that, ‘if that
concession was wrong in law [it], would
have no hesitation whatsoever in rejecting it.”
[12]
Mr Van Onselen pressed that unless this Court grants the order as per
the draft order then a
ruling on its jurisdiction is necessary. Mr
Mogano submitted that his instructions are to leave it in the Court’s
hands.
[13]
In the case of
Maswanganyi
[3]
a
settlement agreement was placed before Mokgohloa DJP, who was asked
to make the settlement agreement an order of court, which
was
refused. From her reading of the file, the Judge had noted that
there was no indication that the insured driver was negligent
and
directed that evidence be led to state how the collision occurred.
The evidence of one witness was heard but was not
completed.
The matter was then postponed to 12 October 2016. On 07
October 2016 an application was made to call off
the part heard
matter, nullify the trial, declare that the
lis
between
the parties to have been fully and finally settled and make the draft
order an order of court.
[14]
The remarks by the Supreme Court of Appeal in
Maswanganyi
[4]
are
instructive:
“
[13]
Litigants do not mandate courts to decide disputes, and the language
of agency or mandate is inappropriate to describe
the judicial
function. Nor should the jurisdiction of courts be conflated
with the concept of mandate. Courts are the judicial
arm of the
State. They are charged, inter alia, with the determination of
civil disputes that arise in the ordinary course
of events. Their
jurisdiction to do so is founded in Chapter 8 of the Constitution of
the Republic of South Africa, 1996
(“the Constitution”)
and defined in various statutes and the common law. In the case
of the High Court, the relevant
statute is the
Superior Courts Act 10
of 2013
.
[15]
[T]he jurisdiction of the court to resolve the pleaded issues does
not terminate when the parties arrive at a settlement
of those
issues. If it did, the court would have no power to grant an
order in terms of the settlement agreement.
[32]
Our courts have a duty to ensure that they do not grant orders that
are contra bonos mores, or that amount to an
abuse of process.
Section 173 of the Constitution specifically empowers the court to
prevent any such abuses.
[33]
[A] court cannot act as a mere rubber stamp of the parties.
[35]
In cases involving the disbursements of public funds, judicial
scrutiny may be essential.
[36]
When a Judge expresses concern over the terms of a settlement, the
court must ensure that those concerns are addressed
by the parties to
prevent an abuse of process and the unjustified disbursements of
public funds.”
[15]
The Constitutional Court in
Eke
v Parsons
[5]
made
these resounding remarks:
“
[25]
This in no way means that anything agreed to by the parties should be
accepted by a court and made an order of court.
The order can
only be one that is competent and proper. A court must thus not
be mechanical in its adoption of the
terms of a settlement
agreement.”
[16]
I have already alluded to the fact that the application to separate
merits and quantum was not
before me or any other court. On 01
December 2021 the application was not made. The matter of
separation appears in
the revised settlement agreement. Rule
33(4) stipulates:
“
If,
in any pending action, it appears to the court mero motu that there
is a question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question, the
court may make an order directing the disposal of
such question in
such manner as it may deem fit and may order that all further
proceedings be stayed until such question
has been disposed of, and
the court shall on the application of any party make such order
unless it appears that the questions
cannot conveniently be decided
separately.”
[17]
In
Denel
(Edms) Bpk V Vorster
[6]
Nugent
JA made the following informative remarks:
“
[3]
Rule 33(4) of the Uniform Rules – which entitles a Court to try
issues in appropriate circumstances
– is aimed at facilitating
the convenient and expeditious disposal of litigation. It
should not be assumed that the
result is always achieved by
separating the issues. In many cases, once properly considered,
the issues will be found to
be inextricably linked, even though, at
first sight, they might appear to be discrete. And even where
the issues are discrete,
the expeditious disposal of the litigation
is often best served by ventilating all the issues at one hearing,
particularly where
there is more than one issue that might be readily
dispositive of the matter. It is only after careful thought has
been given
to the anticipated course of the litigation as a whole
that it will be possible properly to determine whether it is
convenient
to try an issue separately. But where the trial
Court is satisfied that it is proper to make such an order –
and, in
all cases, it must be so satisfied before it does so –
it is the duty of that Court to ensure that the issues to be tried
are clearly circumscribed in its order so as to avoid confusion. The
ambit of terms like the ‘merits’ and the
‘quantum’
is often thought by all the parties to be self-evident at the outset
of a trial, but, in my experience, it
is only in the simplest of
cases that the initial consensus survives. Both when making
rulings in terms of Rule 33(4) and
when issuing its orders, a trial
Court should ensure that the issues are circumscribed with clarity
and precision.”
[18]
Needless to say, it was imperative for me to consider the entire
file. Since the issue
of separation was not brought before me I
did not confine my reading to the aspect of merits only. Regard
being had to the
authorities by the ConCourt and the SCA referred to
above, it follows that the jurisdiction of this Court remains extant,
as I
am not bound by the settlement agreement. In the exercise
of my discretion I find the agreement to be an abuse of process.
In
the absence of any evidence led there may therefore be unjustified
disbursements of public funds.
The
issues raised by this Court
[19]
It remains incomprehensible for counsel for the plaintiff to maintain
in his submission that
there is no authority to the effect that if
one is not licenced to drive you are not disentitled by statute to
claim. He
submitted that the test should be “
are you
competent to drive?”
I do not agree. If this
was the case, there would not be legislation prescribing the age at
which to obtain a learner and
driver’s licence.
[20]
The National Road Traffic Act
[7]
stipulates:
“
Driver
of motor vehicle to be licensed
12.
No person shall drive a motor vehicle on a public road-
(a)
except under the authority and in accordance with the conditions of a
licence issued to him or her in
terms of this Chapter or of any
document deemed to be a licence for the purposes of this Chapter; and
(b)
unless he or she keeps such licence or document or any other
prescribed authorisation with him or her
in the vehicle.
Licence
to drive, either learner's or driving licence
13.
A licence authorising the driving of a motor vehicle shall be issued
by a driving licence testing centre in
accordance with this Chapter
and shall be either-
(a)
a provisional licence, to be known as a learner's licence; or
(b)
a licence, to be known as a driving licence,
and,
except as otherwise provided in this Chapter, no person shall be
examined or tested for the purpose of the issue to him or
her of a
driving licence unless he or she is the holder of a learner's
licence.”
[21]
The plaintiff was a minor as indicated in the cited identity number
[....]. Rightfully
he should not have been behind the steering
wheel of the motor vehicle. He does not possess a learner or
driver’s licence
and that is common cause. Despite this,
he was in the company of a friend who was a year younger than him.
So it can
be safely deduced that he too did not possess any
learner or driver’s license.
[22]
Holmes JA succinctly set out the test for liability in
Kruger
v Coetzee
[8]
as
follows:
“
For
the purposes of liability culpa arises if –
(a)
a
diligens paterfamilias in the position of the defendant –
(i)
would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)
would
take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.”
[23]
Mr Van Onselen has referred me to this Court’s Full Bench
judgment of
Trencor
Services (Edms) Bpk v Loots en Andere
[9]
.
This
case involved a collision between two vehicles in which evidence was
led. The driver moved slightly over the yellow
line after being
blinded by the lights of oncoming traffic. A collision then
occurred between his vehicle and a stationary
vehicle on the side of
the yellow line (the shoulder of the road). These facts are
clearly distinguishable from the facts
before me. The
applicable principle in
Trencor
is
that a driver should at all times maintain a proper lookout and
regulate his/her speed in such a manner that he/she is able to
stop
timeously.
[24]
Mr Van Onselen also invoked the unreported judgment of Mabesele J in
the matter of
Prinsloo
v Road Accident Fund
[10]
.
Counsel contended that because the plaintiff in the
Prinsloo
matter was awarded damages even though she does not possess a
driver’s license this Court should follow that precedent.
What immediately distinguishes the
Prinsloo
case from the present is that the plaintiff testified unlike
in
casu
.
Prinsloo
had been a motorcyclist for the past four years even though she did
not possess a license. The driving experience of the
plaintiff
in
casu
is
not explained. The RAF in the
Prinsloo
case elected not to call any witnesses and the decision was based on
the evidence of the plaintiff.
[25]
The plaintiff in this case was, according to his version, following a
white Corsa utility. It
abruptly stopped. He swerved the
vehicle to his right and collided with a tree in an island separating
the four lanes, two
in each direction. The following distance
between the two vehicles is important but not mentioned. It is
unclear whether
at the speed he claims to have been driving, 60km per
hour, in the circumstances he described he would, as a reasonable
driver,
have been able to stop the vehicle before it collided with
the tree. The accident report by the police only refers to
driver
A and there is no mention of driver B. Under the head
“brief description of the accident”, this is what is
recorded:
“
Driver
A allege that he lost control of the vehicle and drove into a tree.”
[26]
Dr Bezuidenhout at the Kimberley Hospital Emergency Centre treated
the plaintiff around 01:20
in the early hours of the morning. The
accident occurred the previous day around 23:00 on 22 June 2018. The
following
are the doctor’s notes found in the hospital records:
“
22 June 2018 MVA driver unrestrained intoxicated”.
[27]
The cumulative effect of the shortcomings in this matter, namely, not
having a driver’s
licence; driving on a public road at night
and under the influence of
liquor and unrestrained,
all point towards evidence being required to
be heard. It is therefore necessary for the matter to go on
trial. I am not
persuaded that the plaintiff is entitled to the
suggested apportionment of 20/80. The
onus
is on the
plaintiff to satisfy the court that he took reasonable steps under
the circumstances. Rewarding him for an apparent
wrong cannot
be justified.
[28]
In the premises I do not accept the settlement agreement and make no
order as to costs.
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the plaintiff:
Adv. C
R
van Onselen
Instructed
by:
Adams
&
Adams Attorneys
Stefan
Greyling Inc
For
the defendant: Mr.
M Mogano
Instructed
by:
Office
of the
State Attorney
[1]
I
deem it unnecessary to include the attorney’s bank
details
[2]
2006 (5) SA 47
(CC) at 69 para 67
[3]
Maswanganyi obo Machimane v Road Accident Fund [2019] JOL 44965
(SCA)
[4]
Ibid fn 3 at paras 13
[5]
2016 (3) SA 37
(CC) at para 25
[6]
2004 (4) SA 481
(SCA) at para 3
[7]
93 of 1996
[8]
1966 (2) SA 428
(A) at 430E - F
[9]
2001 (1) SA 324 (NCK)
[10]
[2019] JOL 43955
(GP)