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[2021] ZAMPMBHC 26
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Prudence v RAF (2703/17) [2021] ZAMPMBHC 26 (12 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION
(MAIN SEAT)
Case
Number: 2703/17
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED
DATE: 12 July 2021
SIGNATURE [SIGNED]
In the matter between:
MOKOENA
PRUDENCE Plaintiff
and
RAF Defendant
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and will be released
to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 12 July 2021.
JUDGMENT
Roelofse AJ:
[1]
On
12 June 2016 at Shishila on the Pienaar Main Road in Mpumlanga, the
plaintiff, Ms. Prudence Mokoena was involved in a motor vehicle
accident. She was a passenger. As a result of the accident Ms.
Mokoena suffered a fracture of the right femur midshaft and facial
injuries. Ms. Mokoena was taken to the Themba hospital where she
received emergency treatment which included an open reduction
and
internal fixation of her right leg. Ms. Mokoena lodged a claim with
the RAF
[1]
.
Course of the
litigation
[2]
I dedicate some time in this judgment on
the course of the litigation so that the way the trial unfolded (and
ended) - the RAF first
being represented then being unrepresented and
later again being represented, all be it wholly inadequately, and the
result thereof
be better understood.
[3]
This
situation was most probably being brought about by the dire situation
the RAF finds itself now after it has resolved to sever
its ties with
its panel attorneys.
[2]
The dire
situation in which the RAF finds itself does not only impact upon
itself but also, as will be demonstrated below, severely
affects the
proper and timeous administration of justice. This is even more
alarming because it affects not only the public purse
but also
vulnerable members of our society who must wait for a long time to
get the redress they are entitled to and, as this judgment
demonstrates, receives less than they may have been entitled to due
to a disregard of the rules of this court.
[4]
Ms.
Mokoena issued summons against the RAF
[3]
on 22 November 2017. The summons was served upon the RAF on 8
December 2017.
[5]
In Ms. Mokoena’s particulars of claim
she alleges that she has suffered damages because of the accident as
follows: future
medical expenses; past loss of earnings; past medical
expenses; future loss of earnings; and general damages. The total
amount
Ms. Mokoena claim amounts to R 1 000 000.00. Of the amount
claimed, R 600 000.00 represents a claim for loss of income.
[6]
A
notice of intention to defend was delivered on behalf of the RAF on
10 January 2018 by Mboweni and Partners Incorporated. Subsequent
thereto, the RAF delivered its plea. Ms. Mokoena also filed and
delivered a replication.
[4]
[7]
A
judicial pre-trial was conducted on 16 August 2019. Form A which is a
“CIVIL TRIAL CASE MANAGEMENT DIRECTIVE/ORDER”
prescribed
by the Practice Directive (“
the
case management directive”
)
[5]
was made an order of court
on 16 August 2019. In paragraph 2.2 of the case management directive,
it is recorded that Ms. Mokoena
was a passenger, and that the RAF
conceded the “merits”. The case management
directive furthermore set out time
frames in respect of the filing of
the parties’ reports and joint minutes of their experts, for
the conducting of a further
pre-trial conference and the filing of
the minutes thereof. The case management directive was signed by Mr.
Mokoena and the RAF’s
legal practitioners.
[8]
It appears from the papers that the last
time the RAF’s attorneys participated in the action was on 29
November 2019 when
they delivered a notice in terms of Rule 36(9)(a).
[9]
On 20 April 2021, a second Form A was
filed. According to the second Form A, the matter was enrolled for
trial for the week of 7
June 2021. The second Form A provided for the
filing of joint minutes of experts and the holding of a pre-trial
conference by the
parties. The second Form A was only signed by Ms.
Mokoena’s attorney. The RAF’s attorneys did not take part
in this
pre-trial proceeding. On 20 April 2020, a certificate of
trial readiness was issued by the Registrar.
[10]
The trial bundle contains a “NOTICE
OF INTENTION TO AMEND IN TERMS OF THE PROVISIONS OF RULE 28”
(“
the notice”
),
dated 17 May 2021. The notice reads:
“
BE
PLEASED TO NOTICE THAT
the Plaintiff
intends to amend its particulars of claim to the Summons as follows:
8.1
Future Medical Expenses section 17(4)(a)
Undertaking
8.2
Past and future Loss of Earnings R1 300 000.00
8.3
General Damages R600 000
TOTAL
R 1 900 000.00
”
[11]
Rule 28(1) of the Uniform Rules (“
the
Rule
”
or “
the
Rules
”
)
provides that any party desiring to amend any pleading or document
filed in connection with any proceedings, shall notify all
other
parties of his intention to amend and shall furnish particulars of
the amendment. Sub-rule 28(2) refers to “delivery”
of the
notice. Therefore, copies of a notice of intention to amend must be
delivered to all parties and the original filed with
the Registrar.
[12]
The notice does not bear the Registrar’s
stamp and was delivered at the RAF’s Menlyn offices according
to a stamp that
appears on the last page of the notice. The notice
was not directed to the defendant’s attorneys. No objection to
the proposed
amendment was raised as contemplated in Rule 28(3) by
the RAF.
[13]
The
notice does not set out what is required by sub-rule 28(2) of the
Rules.
[6]
The notice therefore
constitutes a nullity in that it does not comply with the provisions
of Rule 28(2). Even if I am wrong in
this regard, the notice was not
properly delivered
[7]
and the
amendment was never effected as contemplated in Sub-Rule 28(7).
[8]
I am therefore confined to the original paragraph 8 of Ms. Mokoena’s
particulars of claim.
[14]
On
13 April 2021, the plaintiff’s attorneys delivered a notice of
set down for trial for Monday 7 June 2021. The notice of
set down was
not directed nor delivered to the RAF’s attorneys but was
delivered to the RAF’s Menlyn offices. The notice
of set down
was also sent as an attachment to an email that was sent to officials
of the RAF.
[9]
The trial proceedings
[15]
When the matter was called before me
on 7 June 2021, only the plaintiff’s counsel, Mr.
Thabethe appeared. There was
no appearance for the RAF. I was
informed by Mr Thabethe that there would be no appearance for the RAF
but that the notice of set
down of the trial for 7 June 2021 was
delivered by email to the RAF's claims handlers and also delivered by
hand at the RAF's Menlyn
office. I was also informed that the
attorneys that had acted for the RAF have not yet withdrawn.
[16]
At issue therefore was whether the delivery
of the notice of set-down by email and delivery thereof to the RAF’s
offices.
[17]
Before I proceed, I deal with service
initiating proceedings and the service of documents and notices in
the pursuant litigation
process for this is important for the
determination of this matter and may also be important for other
litigants against the RAF
under the present circumstances.
[18]
The notice of set-down and constitutes a
“notice” given in the course of the litigation and in the
context of this matter,
a very important notice.
[19]
There is a difference between the manner of
service of process commencing proceedings and service of subsequent
documents and notices
during the proceedings. Rule 4 of the Rules
provide for service of process commencing proceedings. Rule 4A of the
Rules provides
for service of all subsequent documents and notices,
not falling under rule 4(1)(a).
[20]
Rule 4(1)(a) provides for service of any
process of the court directed to the sheriff. The rule reads as
follows:
“
Service
of any process of the court directed to the sheriff and subject to
the provisions of paragraph (aA)
[10]
any
document initiating application proceedings shall be effected by the
sheriff in one or other of the following manners:….
[21]
The following are processes directed to the
sheriff: a summons for provisional sentence (Form 3), a simple
summons (Form 9), a combined
summons (Form 10), a subpoena (Form 16),
a writ of execution (Form 18, Form A, Form B), a writ of attachment —
immovable
property (Form 20), a writ of commitment for contempt of
court (Form F), a writ of attachment
ad
fundandam jurisdictionem
(Form H).
[22]
Service
of all subsequent documents and notices, not falling under Sub-rule
4(1)(a), in any proceedings on any other party to the
litigation may
be effected in any manner laid down by Rule 4A.
[11]
[23]
Rule 4A(1) specifically refers to all
subsequent documents and notices, not falling under rule 4(1)(a).
Rules 6(5)(b), 6(5)(d)(i),
17(3), 19(3) or 34(8) all provide for the
appointment of an address at which the parties will accept service of
all documents in
the course of the litigation that was already
initiated. What Rule 4A(1) therefore contemplates is that, once
litigation is commenced
by service of process in terms of Rule
4(1)(a), all subsequent documents and notices must be delivered to
the addresses appointed
by the parties in terms of Rules 6(5)(b),
6(5)(d)(i), 17(3), 19(3) or 34(8).
[24]
It is commonplace that many notices and
documents are often exchanged between the parties during litigation
before the matter reach
the court. What cannot be done without is the
appointment of an address for the delivery of all subsequent
documents and notices.
Any delivery to an address not so appointed
will not be proper delivery of same.
[25]
Rule
4A
[12]
provides:
“
Delivery
of documents and notices
(1)
Service of all subsequent documents and
notices, not falling under rule 4(1)(a), in any proceedings on any
other party to the litigation
may be effected by one or more of the
following manners to the address or addresses provided by that party
under rules 6(5)(b),
6(5)(d)(i), 17(3), 19(3) or 34(8), by—
(a)
hand at the physical address for service
provided, or
(b)
registered post to the postal address provided,
or
(c) facsimile or
electronic mail to the respective addresses provided.
(2) An address for
service, postal address, facsimile address or electronic address
mentioned in subrule (1) may be changed by the
delivery of notice of
a new address and thereafter service may be effected as provided for
in that subrule at such new address.
(3) Chapter III, Part
2 of the Electronic Communications and Transactions Act, 2002 (Act 25
of 2002) is applicable to service by
facsimile or electronic mail.
(4) Service under this
rule need not be effected through the Sheriff.
(5) The filing with
the registrar of originals of documents and notices referred to in
this rule shall not be done by way of facsimile
or electronic mail.”
[26]
Rule
4A specifically refers to the Electronic Communications and
Transactions Act 25 of 2002 (“
the
Electronic Communications Act”
).
The Communications Act, amongst other objectives, provides for the
facilitation and regulation of electronic communications and
transactions and the development of a national e-strategy for the
Republic.
[13]
[27]
Section
19(2) of the Communications act brings certain expressions in law
within the ambit of the Act. This section provides:
“
An
expression in a law, whether used as a noun or verb, including the
terms “document”, “record”, “file”,
“submit”, “lodge”, “deliver”,
“issue”, “publish”, “write in”,
“print” or words or expressions of similar effect, must
be interpreted so as to include or permit such form, format
or action
in relation to a data message unless otherwise provided for in this
Act.”
[28]
In Section 1 of the Communications Act, a
data message is defined as:
“
data
message” means data generated, sent, received or stored by
electronic means and includes—
(a) voice, where the
voice is used in an automated transaction; and
(b) a stored record;
[29]
Section 19(2) therefore authorises
“delivery” by way of a data message. Simply put, the
section authorises an email
which includes a notice of set-down (or
other notice required to be sent) or an email to which such notice is
attached.
[30]
Rule
4A specifically incorporates Chapter III, Part 2 of the Electronic
Communications and Transactions Act 25 of 2002 (“
the
Communication Act
”
)
as being applicable to effecting service by facsimile or electronic
mail. Sections 23 and 26 of the Communication Act are relevant.
Section 23 provides for the time and place of communications,
dispatch and receipt of a data message. Section 26 deals with the
acknowledgement of a data message. Of importance however is that
sections 23 and 26 of the Communications Act only applies where
the
parties involved in generating, sending, receiving, storing or
otherwise processing data messages have not reached agreement
on the
issues provided for therein.
[14]
Sections 23 and 26 of the Communications Act reads as follows:
“
23.
Time and place of communications, dispatch and
receipt.-A data message:
(a)
used in the conclusion or performance of an agreement must be
regarded as having been sent
by the originator when it enters an
information system outside the control of the originator or, if the
originator and addressee
are in the same information system, when it
is capable of being retrieved by the addressee;
(b)
must be regarded as having been received by the addressee when the
complete data message enters
an information system designated or used
for that purpose by the addressee and is capable of being retrieved
and processed by the
addressee; and
(c)
must be regarded as having been sent from the originator’s
usual place of business or residence
and as having been received at
the addressee’s usual place of business or residence.”
“
26.
Acknowledgement of receipt of
data message.-
(1)
An acknowledgment of receipt of a data message is not necessary to
give legal effect to that
message.
(2)
An acknowledgement of receipt may be given by
(a)
any communication by the addressee, whether automated or otherwise;
or
(b)
any conduct of the addressee, sufficient to indicate to the
originator that the data message
has been received.”
[31]
Within the context of Rule 4A, section
23(a) of the Communication Act must mean the delivery of a subsequent
document or notice
contemplated in Rule 4A(1) being sent by
electronic mail as provided for in Rule 4A(1)(c). Therefore, the time
and place of communications,
dispatch and receipt of the subsequent
document or notice by electronic mail and proof of delivery of same
is regulated by the
provisions of sections 23 and 26 of the
Communication Act. In terms of section 20 of the Communications Act,
only where there is
no agreement between the parties. The point is
this, there is no need for agreement between the parties as far as
subsequent documents
and notices not falling under rule 4(1)(a). The
parties must appoint or set out an address for the delivery of
subsequent documents
and notices not falling under rule 4(1)(a).
Delivery must be effected to the address so appointed which may
include an email address
or a physical address. What manner sections
23 and 26 of the Communications Act assists is to determine, in the
event of email
delivery, it to determine the delivery of the email
communication and the acknowledgement of receipt of the email.
[32]
Rule 16 provides for the representation of
parties. It regulates situations where legal practitioners are
appointed to act on behalf
of a party, when such practitioner then
ceases to act as such. Central to this rule is that the address for
service of all further
documents subsequent to the withdrawal of the
practitioner. This is the address where proper service of all further
document must
be effected.
[33]
Having set out the service and delivery of
process, subsequent notices and documents, I return to the matter at
hand.
[34]
I
was not prepared to hear the matter when it was first called in the
absence of the RAF although I was fully entitled to do so
in
accordance with the provisions of Rule 39(1)
[15]
I was concerned about two issues. Firstly, I was concerned because
the RAF did not appear even though its attorneys have not withdrawn.
Secondly, I was not satisfied that there was proper service of the
notice of set down as contemplated in Rule 4A upon the RAF.
I
contemplated striking the matter from the roll due no non-compliance
with Rule 4A. I decided not to do so because, having regard
that the
accident had already taken place almost 5 years ago and that Ms.
Mokoena was ready to proceed to trial. Striking the matter
from the
roll would only have caused further delay and pressure on this
court’s trial rolls.
[35]
For
that reason, and in terms of the power the court possess to regulate
its own process
[16]
, I issued
the following order:
1.
The matter is postponed to Wednesday 9 June 2021.
2.
The Chief Executive Officer of the defendant is hereby directed to
notify this
court whether the defendant intends to participate in the
action ("the notification”). If the defendant intends to
further
participate in the action, the defend and is directed to
disclose the nature of its further participation in the notice.
3.
The notice must be delivered by no later than 16:00 on Tuesday, 8
June 2021 by
email to this court’s Registrar at
M[__________]@judiciary.org.za
/
m[___________]@yahoo.com, failing which the court shall accept
that the defendant no longer wishes to participate in the
action in
which event the court shall dispose of the action in a manner it
deems meet.
4.
The plaintiff’s attorneys are directed to deliver a copy of
this order
to the Chief Executive Officer of the defendant personally
as well as the defendant's claims handlers of claim number 4177943,
such delivery to take place by no later than 16:00 on Monday, 7 June
2021.”
[The email addresses have
been redacted]
[36]
The purpose of the order was to ensure that
the RAF was aware of the trial being enrolled and about to be heard.
I wanted to prevent
a situation where the RAF could later seek to
rescind the order if same was given in its absence.
[37]
The plaintiff’s attorneys directed a
letter to which the order and the notice of set down was attached to
the RAF’s
Chief Executive Officer. The letter was delivered at
the RAF’s offices.
[38]
The matter was called on 9 June 2021.
Mr. Thabethe appeared for the plaintiff. The order apparently had an
effect because
Ms. Mahlalela appeared for the RAF. I enquired from
Ms. Mahlalela what the position was. Ms. Mahlalela informed me that
she was
only instructed the previous evening to attend to the trial.
Ms. Mahlalela told me that she was not ready to proceed with the
trial
and that the RAF wanted a postponement. I directed that the
formal application for a postponement be brought and determined time
periods for the parties to exchange papers and to deliver same to the
court. I postponed the matter to 10 June 2021 for purposes
of hearing
of the postponement application and, depending on the outcome of the
application for a postponement, for the trial of
the matter.
[39]
The parties send the postponement
application through to my registrar. The RAF’s new attorney
deposed to the founding affidavit
in the postponement application. He
alleged as follows:
“
2.5
On the 08th June 2021 whilst travelling to East London I received
instructions to represent the ROAD ACCIDENT
FUND (“The Fund”)
herein. I then proceeded to engage counsel on the matter and briefed
her accordingly to proceed with
the matter. It is noteworthy that I
only received all documentation pertaining to this matter at 7:30 on
the 9th June 2021, which
is the date of trial, hence the application
for a postponement.
2.6.
It is therefore my submission that, based on the above, it is
self-evident that the Applicant is not
ready to proceed in respect of
quantum at this stage and therefore requests that the matter be
postponed sine die, alternatively
that it be removed from the roll to
afford the parties an opportunity to engage with their experts with a
view to getting them
to reach a meaningful settlement. The matter
would then be re-enrolled on the Judicial Pre-Trial Conference roll
to enable the
parties to obtain further directives from the
Honourable Court with regards to further prosecution of the action.”
[40]
This was met by an opposition by the
plaintiff that the RAF had not made out a good cause for a
postponement to be granted. It is
trite that good cause must be
established by a party requesting a postponement. Having regard to
the course of the litigation set
out above, the RAF cannot possibly
at the eleventh hour request a postponement just because it only
instructed another attorney
to appear a day after the matter was set
down for trial. I therefore refused the application for a
postponement and ordered that
the trial proceed.
[41]
Ms. Mokoena presented no oral evidence and
solely relied upon her own affidavit and the affidavits of certain of
her experts. After
having admitted the affidavits into evidence, Ms.
Mokoena closed her case.
[42]
The RAF did not present any evidence and
closed its case.
[43]
I directed the parties to deliver heads of
argument and gave them time prescripts for doing so. Only the
plaintiff delivered heads
of argument.
COMPENSATION FOR MS.
MOKOENA
[44]
I now must consider the evidence before me
to determine what compensation in respect of her claim for loss of
income as a result
of the accident.
[45]
Ms. Mokoena complains of pain in her right
leg which is exacerbated by prolonged standing and walking. Ms.
Mokoena takes pain medication
upon occasion when she experiences pain
in her leg.
[46]
MS. Mokena was born on 14 April 1996.
Presently therefore, she is 25 years old. She passed grade 10. Ms.
Mokoena was unemployed
before the accident. After the accident she
was employed for two short periods as a cleaner and cook. Pain to her
leg mad it difficult
for her to cope with the employment. Having
regard to Ms. Mokoena’s education, she would have to rely upon
her physical skills
to be employed. Ms. Mokoena’s physical
skills have been compromised because of the accident and leave her in
an unequal position
to compete in the labour market. Employers have a
wide choice amongst work seekers who are not physically challenged.
In my view
these are major contributing circumstances to take into
account in determining compensation that is just and fair for Ms.
Mokoena.
[47]
Ms. Mokoena’s Industrial Psychologist
sets out as follows over Ms. Mokoena’s post-morbid
circumstances:
“
Ms.
Mokoena
dead indeed incur loss of earning potential due
to injury she sustained in this accident in question which will still
have a negative
impact on her future earnings
.
Thus, it is reasonable
to point out that Ms. Mokoena will have difficulties functioning in
the open labor market. The aforementioned
limitations would prevent
her from competing with her peers should the opportunity be awarded.
She is likely to remain disadvantaged
in the open labor market and
their productivity will also be negatively affected. The writer is
therefore of the opinion, accepting
that because of her physical
limitations, she has been negatively affected by this accident in
question and is therefore unemployable
in the open labor market.”
[48]
Ms. Mokoena’s past- and future loss
of earnings was calculated by Munro Forensic Actuaries. The total
loss of earnings is
calculated to be R 1 881 100. To this amount
contingencies still had to be applied.
[49]
The determination of just compensation is
within the discretion of the court. The court must have regard to all
the relevant circumstances
and then determine what will be a just
compensation. I accept that the accident affected Ms. Mokoena’s
ability to earn an
income because of the accident. I am however not
of the view that Ms. Mokoena is finally unemployable.
[50]
In Ms. Mokoena’s heads of argument,
an amount of R 1 349 020.00 is proposed as compensation for her loss
of income.
[51]
Ms. Mokoena’s actuaries’ report
where the amount of actual loss of income was calculated, was already
delivered to the
defendant’s attorneys of record on 29 January
2020. Notwithstanding, Ms. Mokoena only furnished her notice of
intention to
amend on 18 May 2021 by delivery to the RAF’s
Menlyn office.
[52]
Ms. Mokoena’s notice of amendment
dated 17 May 2021 constitutes a notice contemplated in Rule 4A. The
notice of amendment
was not delivered to the defendant’s
attorneys of record although they have not yet withdrawn. Thus, the
address for delivery
of notices (such as the notice of amendment)
remained the address of the defendant’s attorneys of record for
purposes of
Rule 4A. Nowhere in the papers is there any indication
that the address for purposes of the delivery of notices was changed
to
the defendant’s place of administration. In addition, no new
address for the delivery of notices and documents was appointed
by
the RAF.
[53]
As set out above, Ms. Mokoena’s
notice of amendment of her particulars of claim was not in compliance
with the provisions
of Rule 28(2). In addition, the amendment was not
effected. There was therefore no amendment and Ms. Mokoena’s
original particulars
of claim stands. In the original particulars of
claim, an aggregate amount of R 600 000.00 was claimed for past- and
future loss
of earnings. This is the amount I shall award.
CONCLUSION
[54]
In conclusion, I say the following. The RAF
is a litigant for purposes of the court and its rules and procedures.
The fact that
the RAF is the litigant with the largest number of
cases before the courts make no difference. The RAF remains entitled
to its
procedural rights just as any other litigant - represented or
unrepresented.
[55]
On my roll of 7 June 2021, eight other RAF
matters were enrolled for trial. In all of them as well, either the
RAF’s attorneys
withdrew or have vanished from the scene at
some stage during the litigation process. I have heard from the
plaintiffs’ legal
practitioners that since the RAF has resolved
to sever its ties with its panel attorneys, this has become common
place.
[56]
This is where a serious dilemma presents
itself. After having gone through the whole of the pre-trial
procedures and ultimately
when a RAF trial is called nowadays, only
the plaintiff’s legal practitioners usually appear. I was
told, and I am
sure other courts are also told, that there will not
be an appearance by the RAF at the trial. Plaintiffs’ legal
practitioners
often rely on emails that are sent to the RAF’s
claim handlers or the delivery at the offices of the RAF of important
issues
such as notices of set down and practice notes. Worst, in this
matter, the Rule 28 Notice of Amendment was emailed and delivered
in
this manner. In not one of the matters before me was the notices and
documents delivered as contemplated in Rule 4A at an appointed
address.
[57]
There are two serious problems with this
approach: Firstly, such delivery is not in terms of Rule 4A and,
secondly, who says that
the RAF’s claims handlers have
authority to accept subsequent documents and notices in the
litigation. That they do have
authority cannot simply be accepted.
[58]
I
appreciate the plaintiffs in RAF matters’ predicament. However,
the rights and interests of the RAF must also be considered.
After
all, the RAF is all about public funds. The only appropriate thing to
do in circumstances where it becomes clear to a plaintiff’s
legal representative that the RAF’s attorneys do not act
anymore and have not formally withdrawn is to formally determine
the
address and manner of further delivery of documents and notices.
Where the RAF’s attorneys have formally withdrawn, the
provisions of Sub-Rule 16(4)
[17]
are there to follow.
[59]
Of course, in the absence of the proper
delivery of documents and notices in terms of the Rules and in
instance where judgment is
granted against the RAF, it might well be
that the RAF may be tempted to convince a court that the order
against them was sought
and granted erroneously. This will certainly
not be in the interest of the proper administration of justice.
[60]
Let this matter be an example of what can
go wrong if the procedures of court are not followed or if corners
are cut either because
of ignorance of the Rules or to steal a march
upon the RAF because of its present predicament.
[61]
Costs must follow the result.
[62]
In the premises, I order as follows:
a.
The defendant is ordered to provide the plaintiff
with an undertaking in terms of Section 17(4)(a) of Act 56 of 1996,
and based
on the expert reports on behalf of the Plaintiff, wherein
the Defendant undertakes to pay 100% of the Plaintiff’s costs
in
respect of for future accommodation of the Plaintiff in a hospital
or nursing home, or treatment of, or rendering of a service,
or
supplying of goods to the Plaintiff arising out of the injuries
sustained in the motor vehicle collision that occurred on 12
JUNE
2016 , after such costs have been incurred and upon proof thereof;
b.
The defendant is ordered to pay the sum of R 600
000.00 to the plaintiff;
c.
The defendant is ordered to effect payment of
the capital amount within 180 days of the date of this court order,
failing which,
the Defendant shall become liable for interest tempore
morae
on
the capital amount at a rate of 7% per annum.
d.
The defendant is ordered to pay the plaintiff's
party and party costs
which costs shall
further include the reasonable costs and expenses of the plaintiff’s
attorney, correspondent attorney, which
costs and shall also include
all necessary travelling costs and/or expenses, if any, such costs
further to include time spent and
kilometers travelled concerning
attendance to Court and preparation for trial.
e.
In the event the defendant fails to pay the
plaintiff’s costs as taxed or agreed with 14 (fourteen) days
from the date of
taxation, alternatively date of settlement of such
costs, the defendant shall be liable to pay interest at a rate of 7%
per annum,
such costs as from and including the date of taxation,
alternatively the date of settlement of such costs up to and
including the
date of final payment thereof.
f.
The taxed or agreed costs, as referred to above,
shall be paid into the trust account as follows:
ACCOUNT HOLDER: MPHOKANE
ATTORNEYS
BANK NAME: ABSA BANK
ACCOUNT
NUMBER: 4[...]
BRANCH CODE: 6[...]
REF:
B[...] M[...]
Roelofse AJ
Acting Judge of the High
Court
DATE
OF HEARING: 7,
9 and 10 June 2021
DATE
OF JUDGMENT: 12 July 2021
APPEARANCES
FOR
THE PLAINTIFF:
ADV
THABETHE
INSTRUCTED
BY:
MPOKANE
ATTORNEYS
FOR
THE DEFENDANT:
ADV.
K MAHLALELA
INSTRUCTED
BY:
AMMM
ATTORNEYS
[1]
The Road Accident Fund established in terms of the
Road Accident
Fund Act, 1996
.
[2]
On
18 February 2020 the RAF notified its attorneys by letter that they
were required to return all open files to the RAF. The
way the
situation with the RAF’s panel attorneys unfolded, reference
an also be made to: Road Accident Fund and Others
v Mabunda and
Others
[2021] 1 All SA 255
(GP); Fourie Fismer Inc and Others v Road
Accident Fund
[2020] 3 All SA 460
(GP);
2020 (5) SA 465
(GP); Road
Accident Fund v Legal Practice Council and Others [2021] 2 All SA
886 (GP).
[3]
The Road Accident Fund established in terms of the
Road Accident
Fund Act, 1996
.
[4]
The replication dealt with the RAF’s special pleas which is
not relevant fir purposes of this trial.
[5]
In
terms of paragraph 2.8 of the Court’s Practice Directive of 9
January 2020.
[6]
Sub-rule 2 reads as follows:
“
The
notice referred to in subrule (1) shall state that unless written
objection to the proposed amendment is delivered within
10 days of
delivery of the notice, the amendment will be effected.”
[7]
I return to this aspect later in this judgment.
[8]
Sub-rule 28(7) provides as follows:
“
Unless
the court otherwise directs, a party who is entitled to amend shall
effect the amendment by delivering each relevant page
in its amended
form.”
[9]
It appears to be the RAF’s claims handlers in the claim. See
the part in this judgment where I deal with the provisions
of
Rule
4A.
[10]
Sub-rule (aA) provides:
“
Where
the person to be served with any document initiating application
proceedings is already represented by an attorney of record,
such
document may be served upon such attorney by the party initiating
such proceedings.”
[11]
See Erasmus: Superior Court Practice RS 10, 2019, D1-30A.
[12]
Rule
4A
inserted into the Rules by GN R464 of 22 June 2012.
[13]
Preamble to the Communications Act.
[14]
Section 20 of the Communications Act.
[15]
Sub-rule 39(1) reads as follows:
“
(1)
If, when a trial is called, the plaintiff appears and the defendant
does not appear, the plaintiff may prove his claim so
far as the
burden of proof lies upon him and judgment shall be given
accordingly, in so far as he has discharged such burden.
Provided
that where the claim is for a debt or liquidated demand no evidence
shall be necessary unless the court otherwise orders.”
[16]
Through section 173 of the Constitution, 1996, which provides as
follows:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
[17]
Sub-Rule
16(4) provides as follows:
“
(4)
(a) Where an attorney acting in any proceedings for a party ceases
so to act, he shall forthwith deliver notice thereof to
such party,
the registrar and all other parties: Provided that notice to the
party for whom he acted may be given by registered
post.
(b) After such
notice, unless the party formerly represented within 10 days after
the notice, himself notifies all other parties
of a new address for
service as contemplated in subrule (2), it shall not, be necessary
to serve any documents upon such party
unless the court otherwise
orders: Provided that any of the other parties may before receipt of
the notice of his new address
for service of documents, serve any
documents upon the party who was formerly represented.
(c) The notice to the
registrar shall state the names and addresses of the parties
notified and the date on which and the manner
in which the notice
was sent to them.
(d) The notice to the
party formerly represented shall inform the said party of the
provisions of paragraph (b).”