About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2022
>>
[2022] ZAECELLC 3
|
|
Kojana v Road Accident Fund (EL482/2021) [2022] ZAECELLC 3 (8 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO: EL482/2021
In
the matter between:
SANDISIWE
KOJANA
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
STRETCH
J.:
[1]
This matter was set down before me on 25 November 2021 on the default
judgment roll.
When the matter was first called I was requested to
stand it down as the plaintiff’s counsel was not in court. When
the matter
resumed I recorded that there was no appearance for the
defendant. Thereafter the plaintiff’s counsel advised me that
he
would be calling the plaintiff in pursuit of general damages for
injuries which she had suffered in a motor vehicle accident.
[2]
The plaintiff’s evidence in chief was brief. She said that on 3
July 2018 she
was travelling on the N2 motorway between Cambridge and
Hemingways Hotel. She was involved in an accident and taken to
hospital
because she had sustained injuries. She described the
sequelae of the accident as follows:
‘
I broke my upper
right thigh and my lower thigh and I fractured my left ankle. And I
got an injury on the right-hand side of my
head. … I had an
operation on my right thigh because it was broken. … I was
hospitalised for two weeks. …
I work at the hotel so most of
the day I sit so my left ankle gets swollen and it gets difficult to
walk after a long shift. And
I can’t sit for long periods of
time. And there are certain duties that I can no longer do like
walkabouts because I can’t
walk long distances. And even when I
sleep at night I need to take pain tablets because the pain is
constantly there on my left
ankle. … I was 21 weeks pregnant.
… It affected me because I thought I was going to lose my
baby. And I was not aware
of how I was supposed to take care of a
baby because I was on crutches when I gave birth. And I could not
walk by myself. …
.. There were duties that were taken away
from me which is the walkabouts. … So now I do the office work
and sometimes I
need to stand at reception and work at reception
because I have no disability that states that I am disabled. I have
to work because
– and then that’s where the pain starts
after the shift.’
[3]
It was only thereafter that counsel asked her how the accident came
about. This account
too, was brief. She said the following:
‘
I was driving to
work and a car in from of me with a trailer, a bakkie, made a U-turn
without indicating on the freeway, on the
N2. That’s how the
accident happened.’
[4]
As I result of questioning from the court it transpired that she had
been driving
in the fast lane behind the insured vehicle, which was
towing a trailer. She went on to say the following:
‘
Yes, and then the
vehicle suddenly made a U-turn. … To its right. The fast lane
is on the right-hand side so it made a U-turn
in the right patch
where there’s grass. And then it left the trailer in the road.
… And then I collided into the trailer.
… The trailer
was left on the road yes.’
[5]
I asked the plaintiff whether she could not have avoided the
collision by veering
towards her left. She said that she had tried.
She was not examined in chief any further. She was merely asked how
she felt about
the conduct of the insured driver, and how much money
she was claiming. I was accordingly constrained to question her
further to
obtain clarification. She said that the insured driver
admitted that he was in the wrong, that the foetus she was carrying
was
not injured, and that her income and her earning potential were
not affected as a result of the injuries which she had sustained,
until the intervention of the Covid 19 pandemic, when her working
hours were reduced because of the duties she was no longer able
to
perform.
[6]
Her legal representative thereafter briefly submitted that the
quantum of her claim
for general damages was reasonable and that he
was relying on the principle set forth in the unreported judgment of
Mbolo v Road Accident Fund
CA 283/2011, but that he had not
updated the damages. In response to this court’s
questions he stated that the general
damages in that case were less
than R500 000,00. He did not have a copy of the unreported
judgment with him, but provided
the citation as ‘ZAECGHC 24,
9
th
June 2011,’ stating that the plaintiff in that
matter also suffered an ankle injury. In response to a direct
question he
first intimated that the plaintiff in that matter had
been awarded R500 000,00 in general damages. He then added that
it was
less than R500 000,00, but was unable to say how much
less, adding that he would find out.
[7]
He submitted that the plaintiff was only claiming R482 000,00
for general
damages, and that “quantum will be determined
later”. He was unable to address me on why the issue of damages
should
be dealt with in a piecemeal fashion, save to say that those
were his instructions. I once again stood the matter down in order
for counsel to prepare himself for productive engagement on the
issue, and to afford him the opportunity to obtain a copy of the
case
which he was purportedly relying on.
[8]
When the
matter was re-called for the third time, it was contended on the
plaintiff’s behalf that she was only pressing for
general
damages, as a report on loss of income had not been forthcoming. When
I asked counsel whether this approach was in line
with that taken by
the full court of this Division in
Maqhutyana
and Another v RAF
[1]
counsel conceded that it was not, but then clarified that he was not
sure which judgment I was referring to. He referred to the
medical
practitioner’s serious injury assessment report (the RAF4 form)
before me, evaluating the plaintiff’s total
combined long term
whole person impairment at 14 per cent. I stood the matter down for
the third time for counsel to familiarise
himself with the principles
set forth in
Maqhutyana
and to
address me after the long adjournment. I did this in particular
because counsel had also been briefed in another Road Accident
Fund
(“the Fund”) matter which was also standing down, and in
which matter he also intended seeking relief in respect
of liability
as well as general damages.
[9]
When the matter was mentioned for the fourth time, counsel referred
me to
Maqhutyana
paragraph 123 which reads as follows:
‘
If the Fund has
made an offer to a third party in respect of general damages, can
this offer stand as proof that the Fund has accepted
that the third
party’s injury has been correctly assessed as serious? In my
view it would not be an unreasonable inference
to draw in all the
circumstances that in such a scenario the relevant jurisdictional
fact for the court to adjudicate a claim for
general damages in a
default judgment application has been established, otherwise a court
should leave the resolve of this aspect
of the plaintiff’s
claim where it belongs, namely in the administrative realm, reserving
the right of the plaintiff to pursue
it in court again at the
appropriate time.’
[10]
Hartle J’s footnote to this passage says the following:
‘
It needs to be
emphasized that the fact that the Fund has not filed a notice to
defend should not entitle a plaintiff to claim default
judgment in
respect of his/her claim for general damages unless the plaintiff can
make the essential allegation that the Fund has
in fact accepted the
injury to be a serious one.’
[11]
Counsel before me further contended that because the Fund had “made
an
offer” in the matter before me (which I had not previously
been made aware of) I was at liberty to infer that the Fund had
accepted that the plaintiff’s injury had been correctly
assessed as serious. In this respect it was added that an offer had
been made as recently as 16 November [2021] but that “they
stated that because of apportionment they will give us half of
what
we claimed in general damages”.
[12]
I advised counsel that I would disabuse my mind from what had just
been submitted
to me with respect to the quantum of general damages,
and sought confirmation of his undertaking from the bar that the Fund
had
in fact made an offer in settlement of general damages, as
envisaged at paragraph 123 of
Maqhutyana.
Counsel once again
gave this court the undertaking that the offer had been in respect of
general damages, but was unable to address
me on the Fund’s
attitude in respect of the balance claimed.
[13]
Counsel thereafter, persisting with the relief sought from the bar,
referred
me to another unreported judgment (of which a copy was also
not at hand), contending that in that case the award for general
damages
was adjusted to R482 000,000 in respect of a four-year
old who had sustained an ankle injury. It was on that note that I was
constrained to reserve judgment, not only due to the lateness of the
hour, but because I had to take time to find the unreported
judgments
referred to.
[14]
In the course of my preparation of this judgment, I made three
undisclosed
discoveries. The first was that the plaintiff had
delivered a checklist reflecting that she intended seeking judgment
on
liability only. This was on 22 October 2021. The second was that
on the same day, the defendant also delivered a request for default
judgment on liability seeking judgment in the following terms:
a.
That the issues relating to liability are hereby separated from those
issues relating to
quantum in terms of Rule 33(4) of the Uniform
Rules of Court.
b.
The defendant be held liable for the agreed damages arising from the
accident which occurred on
3 July 2018 along the N2 Highway,
Cambridge, East London.
c.
That the issue of quantum be postponed for later determination.
d.
That the defendant pays the costs of the application for default
judgment on liability.
The third was that the
document which counsel purportedly relied on to support his
contention that the Fund had impliedly accepted
the plaintiff’s
serious injury assessment, and which was only placed on the court
file during the course of argument, is
a letter drafted on the
letterhead of the plaintiff’s attorneys, which was emailed to
the Fund on 16 November 2021, and which
reads as follows:
‘
We confirm receipt
of offer dated 16 November 2021.
We wish to advise that
our client was not 50% negligent for the accident that occurred along
the N2 Highway, Cambridge, East London.
The accident was solely
caused by the negligent driving of Mr S Njokweni, who made a u-turn
on the freeway. The accident report
is annexed hereto for easy
reference.
You are kindly requested
to advise us as to why there is 50% apportionment in the offer. The
offer dated 16 November 2021 is the
same offer that is dated 17
December 2020 which was rejected by our client. The offer and the
letter rejecting the offer is annexed
hereto for easy reference.
[2]
You are therefore requested to revise this offer and revert back to
us as soon as possible as this matter has been set-down for
hearing
on
25
November 2021
to
avoid incurring further costs.’
[15]
The upshot of this is likewise threefold: Firstly, the issue of
general damages
is not before me, and should not have been argued.
The effect of arguing general damages, when notice has been given
that relief
would be sought on the issue of liability only, is to
steal a march on the Fund. The fact that the Fund rarely if ever
pleads or
makes a court appearance these days, is, to my mind
irrelevant. A litigant cannot be seen to ask for, and be awarded,
over and
above that which is reflected in his/her notice. The reason
is obvious. The litigant to whom notice has been given, is entitled
to make an informed decision as to whether to abandon or pursue
opposition to the relief sought (at any stage), based on accurate
foreknowledge of the nature and extent of that relief.
[16]
Secondly,
an apportionment offer does not necessarily accurately and finally
determine the quantum of general damages. The Apportionment
of
Damages Act 34 of 1956 contemplates a
determination
of the
liability
of more
than one wrongdoer, and the
apportionment
of that
liability
between
them or amongst them in a single action. That is why a defendant may,
for example, request apportionment of damages based
on the
contributory negligence of the plaintiff.
[3]
[17]
Thirdly, in the light of the fact that the Fund was notified that the
trial
would proceed on the issue of liability only, it is not certain
whether the offer was only in respect of negligence, or with respect
to the quantum of damages as well. If it was only in respect of
negligence, this court cannot infer that the Fund has had
sight of
and has considered the serious injury report. I say this because
there is no evidence before me to suggest that the serious
injury
report was served on the Fund. Acknowledgment of receipt of an index
does not necessarily mean that the Fund received the
entire bundle
which has made its way into the court file. The plaintiff’s
letter rejecting the Fund’s apportionment
offer, predates the
Fund’s acknowledgment of receipt of the index by three days in
any event.
[18]
It is for all these reasons that this court is not inclined to make
an award
for general damages. On the other hand, the Fund was given
notice of the relief the plaintiff intended seeking at the hearing of
the matter, and that the plaintiff would be called to give evidence.
Her evidence, although not a model of clarity, stands unchallenged.
I
am satisfied that she has demonstrated that the insured driver’s
negligence was the sole cause of the collision, and that
the Fund is
accordingly 100 per cent liable for the proven or agreed damages
which the plaintiff sustained, flowing from the collision,
as
reflected in the plaintiff’s request for default judgment on
liability.
ORDER:
a.
The issues relating to liability are separated from those relating to
quantum in terms of rule
33(4) of the Uniform Rules of Court.
b.
The defendant is held liable to compensate the plaintiff for 100 per
cent of the plaintiff’s proven
or agreed damages arising from
the collision which occurred on 3 July 2018 on the N2 motorway,
Cambridge, East London, during which
collision the plaintiff
sustained injuries.
c.
The issue of quantum is postponed
sine die.
d.
The defendant is ordered to pay the costs of this application.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date
heard: 25
November 2021
Date
handed down by way of electronic mail to the plaintiff’s
attorneys and to the RAF: 8 February 2022
Counsel
for the plaintiff/applicant:
Mr
M.E. Bishoti, instructed by Maseti Incorporated, EAST LONDON.
Telephone 043 726 7442.
Email
plcmaseti@live.com
. Reference
PLCM/msb/MEL 4142 (A)
For
the respondent/defendant: no appearance.
Email
address for purposes of electronic delivery of judgment:
SiyandaMf@raf.co.za
[1]
CA 17/2020 [2021] ZAECMHC 30 (17 August 2021)
[2]
The offer dated 17 December 2020, the letter rejecting it and the
offer dated 16 November 2021 were not handed up by counsel.
[3]
See the leading case of
ABSA
Brokers (Pty) Ltd v RMB Financial Services
2009
(6) SA 549
(SCA).