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[2021] ZANCHC 36
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Lottering v Chief Executive Officer of the Road Accident Fund N.O and Another (1541/2018) [2021] ZANCHC 36 (13 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1541/2018
Date heard: 11-09-2020
Date delivered:
13-08-2021
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
Katrina
Lennet
Lottering
Plaintiff
and
Chief Executive
Officer of the Road Accident Fund N.O
1
st
Defendant
The Road Accident
Fund
2
nd
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
The plaintiff, Ms Katrina Lennet Lottering,
issued summons on 3 July 2018 against the 2
nd
defendant, the Road Accident Fund (RAF), for damages incurred as a
result of a motor vehicle accident which occurred while the
plaintiff
was a passenger in the insured vehicle.
2.
In the alternative to the above mentioned
claim, the plaintiff claimed as against the defendants, the CEO of
the RAF and the RAF
– in the event that the court finds that
the plaintiff’s claim was not validly and/or duly and/or
timeously lodged,
damages against the 1
st
defendant and/or the RAF for breach of a duty of care.
3.
In response the defendants have raised
three special pleas.
3.1
The 1
st
defendant’s special plea refers to s15 (3)
of the Road Accident Fund Act 56 of 1996 (the Act) which provides as
follows:
“
No
member of the Board or officer or employee of the Fund, or other
person performing work for the Fund, shall be liable for anything
done in good faith in the exercise of his for her powers or the
performance of his or her functions or duties or in terms of this
Act.”
They plead accordingly
that the 1
st
defendant cannot be held liable for the
conduct of the RAF’s employees and that therefore the plaintiff
has no claim in law
against the 1
st
defendant.
3.2
The RAF raised two special pleas of prescription in that:
3.2.1
The plaintiff has failed to submit a valid claim to the RAF within 3
years from
the date upon which her cause of action arose; and
3.2.2
The plaintiff has failed to issue and serve
the summons in respect of the claim within 5 years from the date upon
which her cause
of action arose.
4.
In her replication to the special pleas
raised by the defendants, the plaintiffs pleads waiver by the RAF of
its right to raise
failure to substantially complete the claim form
and prescription as defences to the plaintiff’s claim.
Alternatively she
pleads that the RAF is estopped from relying on its
said rights. Further alternatively the plaintiff relies on the
provisions of
s12
(3) of the
Prescription Act 68 of 1969
in that the
plaintiff only became aware of the full particulars of her claim
against the defendants on or about 27 November 2017
and issued
summons on 4 July 2018 for damages suffered as a result of the RAF
and/or its employees allowing her claim to become
prescribed within
the 3 year period as prescribed by the
Prescription Act. The
plaintiff pleads furthermore that her claim against the 1
st
defendant is in his or her representative capacity.
5.
At the hearing of the special plea, the
defendants were absent from court, but I was informed by Mr Nortier,
plaintiff’s counsel,
that the defendants maintain the attitude
expressed in an e-mail dated 8 September 2020 and addressed to the
plaintiff’s
attorney Ms Denise de Jongh, that the RAF will
abide by the ruling of the court in respect of the special pleas.
6.
The plaintiff and her attorney Ms de Jongh
were called as witnesses.
7.
The plaintiff testified that she was 39 years old. On 5 August 2009
she was a
passenger in the motor vehicle driven by her sister when
there was an accident which resulted in her being hospitalised in the
Kimberley Hospital.
8.
Whilst in hospital she was approached by a
certain Mr Clive Orto who informed her that he was employed by the
RAF and that he was
there to assist her in an application for
compensation for her injuries sustained in the motor vehicle
accident. At Mr Orto’s
request she also signed the RAF1, Third
Party Claim form giving the RAF consent to obtain copies of any
records to access any information
relating to the claim for
compensation and to contact any person or entity for purposes of
obtaining or verifying such information
and/or documentation.
9.
Mr Orto requested the plaintiff to obtain
from the police station where the accident was reported, the accident
report and the case
number, she was also asked to depose to a short
affidavit, make a copy of her identity document, obtain her hospital
records and
provide her banking details. After the plaintiff was
discharged from hospital and whilst still on crutches, she obtained
the above
documents and delivered it to Mr Orto at the RAF offices at
the Kimberley Hospital Complex.
10.
When the plaintiff started recovering from
her injuries she called the offices of the RAF on numerous occasions,
where she spoke
to either Mr Orto or a receptionist, and enquired
about the progress on her claim. She was told that everything was in
order and
that they would revert to her. This situation continued for
some years.
11.
She testified that at some stage she spoke
to a neighbour who had also been involved in a motor vehicle accident
and enquired from
her as to the status of her claim. The neighbour
told her that she had instructed private attorneys, P Joubert Inc. to
handle her
claim. The plaintiff thereafter met with one of P Joubert
Inc’s investigators and decided to instruct the attorneys to
pursue
her claim.
12.
Ms De Jongh of Joubert Inc investigated the
plaintiff’s claim and informed her that the medical certificate
had not been signed
by the medical practitioner and that the RAF
maintained that the plaintiff’s claim had prescribed.
13.
The plaintiff testified that she only saw
Mr Orto while she was in hospital and thereafter communicated with
him telephonically.
Her evidence was that she was never informed by
Mr Orto or any other employee of the RAF that her claim was about to
prescribe
and that she could instruct an attorney. She was also not
informed that the RAF was experiencing difficulties in obtaining the
signed medical certificate.
14.
Ms de Jongh testified that she is an
attorney and an associate at P Joubert Inc, Cape Town. She had
started working there during
2016 and was given the plaintiff’s
file. She compiled a time line with regard to the steps taken by P
Joubert Inc. on behalf
of the plaintiff as follows:
14.1
The plaintiff had signed a mandate
instructing P Joubert Inc. on 31 July 2014;
14.2
Ms de Jongh requested the relevant
documentation from P Joubert’s Kimberley office during August
2016;
14.3
On 12 September 2017 she inquired from the
RAF whether a claim was lodged and what the status thereof was;
14.4
On 13 September 2017 she received an e-mail from the RAF that they
could not divulge any
information for security reason;
14.5
On 12 October 2017 Ms de Jongh commenced with an application in terms
of the Promotion
of Access to Information Act 2 of 2000 (PAIA), to
obtain the contents of the RAF file;
14.6
On 23 October 2017 she received the file;
14.7
On 27 November 2017 she consulted with the plaintiff regarding the
contents of the file;
14.8
After informing the plaintiff that the claim had prescribed, she
subsequently received
instructions to proceed with issuing summons;
and
14.9
Counsel was instructed and summons was issued during July 2018.
15.
Ms de Jongh also compiled a bundle of documents which she received
from the RAF after the
PAIA application. The information gleaned from
the RAF file relating to this matter is as follows:
15.1
The plaintiffs short affidavit dated 11 February 2010 referred to in
her evidence, her
bank details with ABSA Bank, dated 11 February
2010, her hospital records, accident report and a copy of the
plaintiff’s
identity report were included in the RAF’s
file.
15.2
The RAF third party claim form signed by the plaintiff was in the
file. Significantly,
the portion of this form relating to the medical
report was only signed by the medical practitioner Dr Walid Bonaicha
on 9 January
2014.
15.3
A merits assessment form, undated, with the plaintiff’s
details, date of accident,
date of prescription entered as 4 August
2012 and a note that the claim was lodged on 20 January 2014 with the
word “
PRESCRIBED”
entered. The merits assessment
forms contains boxes to be ticked marked “
yes”
and
“
no”
. In response to the question “
Repudiate
claim?”
the “
no”
box is ticked. In
response to the question “
could you assess merits”
,
the “
yes”
box is ticked. Next to “
amount
claimed”
R1 is entered and next to “
1
st
estimate amount”
the amount of R75 000 (GD) –
presumably for general damages - is entered.
15.4
On 15 January 2014 Ms Claudia Griffiths of the Kimberley Hospital
Complex office of the
RAF dispatched a memorandum to Ms Lydia
Malandzi, team leader of the Origination Department of the RAF (the
Direct Claims Department)
in Johannesburg stating that:
“
1.
Claimant
(plaintiff)
ID
copy, Claimant affidavit and BIF is within prescription.
2.
The delay was the completion of the SMR
(Statutory
Medical Report)
which was only
done 09/01/2014.”
(explanations in brackets
are own insertions)
16.
That concluded the evidence led in this
matter. Mr Nortier undertook to provide me with written heads of
argument which I received
in due course.
17.
I deal first with the special pleas raised
by the RAF. Since the identity of the driver is known, the special
pleas are based on
the provisions of sections 23 (1) and 23 (4) of
the Act. For the sake of convenience, I quote the relevant and
related sections
of the Act as follows.
“
17.
Liability of Fund and agents
(1)
The Fund or an agent shall-
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle
where the
identity of the owner or the driver thereof has been established;
(b)
. . . . . . . . .
19.
Liability excluded in certain cases
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage-
(a)
. . . . . . . . . . .
(b)
. . . . . . . . . .
(c)
. . . . . . . . . .
(d)
. . . . . . . . . .
(e)
. . . . . . . . . .
(f)
if the third party refuses or fails-
(i)
to submit to the Fund or such agent, together with his or her claim
form as prescribed or within a reasonable period thereafter
and if he
or she is in a position to do so, an affidavit in which particulars
of the accident that gave rise to the claim concerned
are fully set
out; or
(ii)
to furnish the Fund or such agent with copies of all statements and
documents relating to the accident that gave rise to the
claim
concerned, within a reasonable period after having come into
possession thereof.
23.
Prescription of claim
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections (2) and (3), the right to claim compensation
under section 17 from the Fund or an agent in respect of loss or
damage arising from the driving of a motor vehicle in the case
where
the identity of either the driver or the owner thereof has been
established, shall become prescribed upon the expiry of a
period of
three years from the date upon which the cause of action arose.
(2)
. . . . . . . . . .
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 24 shall prescribe before the expiry of a
period of
five years from the date on which the cause of action arose.
(4)
. . . . . . . . . .
(5)
. . . . . . . . .
24
Procedure
24.
(1) A claim for compensation and accompanying medical report under
section 17 (1) shall-
(a)
be set out in the prescribed form, which shall be completed in all
its particulars;
(b)
be sent by registered post or delivered by hand to the Fund at its
principal, branch or regional office, or to the agent who
in terms of
section 8 must handle the claim, at the agent's registered office or
local branch office, and the Fund or such agent
shall at the time of
delivery by hand acknowledge receipt thereof and the date of such
receipt in writing.
(2)
(a) The medical report shall be completed on the prescribed form by
the medical practitioner who treated the deceased or injured
person
for the bodily injuries sustained in the accident from which the
claim arises, or by the superintendent (or his or her representative)
of the hospital where the deceased or injured person was treated for
such bodily injuries: Provided that, if the medical practitioner
or
superintendent (or his or her representative) concerned fails to
complete the medical report on request within a reasonable
time and
it appears that as a result of the passage of time the claim
concerned may become prescribed, the medical report may be
completed
by another medical practitioner who has fully satisfied himself or
herself regarding the cause of the death or the nature
and treatment
of the bodily injuries in respect of which the claim is made.
(b)
. . . . . . . . . . . .
(3)
. . . . . . . . . . .
(4)
(a) Any form referred to in this section which is not completed in
all its particulars shall not be acceptable as a claim under
this
Act.
(b)
A clear reply shall be given to each question contained in the form
referred to in subsection (1), and if a question is not
applicable,
the words "not applicable" shall be inserted.
(c)
A form on which ticks, dashes, deletions and alterations have been
made that are not confirmed by a signature shall not be regarded
as
properly completed.
(d)
Precise details shall be given in respect of each item under the
heading "Compensation claimed" and shall, where applicable,
be accompanied by supporting vouchers.
(5)
If the Fund or the agent does not, within 60 days from the date on
which a claim was sent by registered post or delivered by
hand to the
Fund or such agent as contemplated in subsection (1), object to the
validity thereof, the claim shall be deemed to
be valid in law in all
respects.
(6)
No claim shall be enforceable by legal proceedings commenced by a
summons served on the Fund or an agent-
(a)
before the expiry of a period of 120 days from the date on which the
claim was sent or delivered by hand to the Fund or the
agent as
contemplated in subsection (1); and
(b)
before all requirements contemplated in section 19(f) have been
complied with:
Provided
that if the Fund or the agent repudiates in writing liability for the
claim before the expiry of the said period, the third
party may at
any time after such repudiation serve summons on the Fund or the
agent, as the case may be.”
The
RAF’s first special plea
18.
It stands undisputed that the plaintiff had
delivered by hand to the RAF offices at the Kimberley Hospital, the
claim form and all
the accompanying documents as requested by the
RAF’s Mr Orto within a few months of the accident. It is also
undisputed that
the plaintiff had on several occasions over the years
telephonically followed up on the progress of her claim and was not
informed
that the statutory medical report, which is a peremptory
requirement in terms of s 24 had not been completed by the medical
practitioner.
19.
In Pithey v RAF 2014(4) SA 112 (SCA) the
SCA reiterated at paragraph 19 thereof that:
“
It
has been held in a long line of cases that the requirement relating
to the submission of the claim form is peremptory and that
the
prescribed requirements, concerning the completeness of the form are
directory, meaning that substantial compliance with such
requirements
suffices. As to the latter requirement this court in SA Eagle
Insurance Co Ltd v Pretorius reiterated that the test
for substantial
compliance is an objective one”
20.
See also
Busuku
v Road Accident Fund
2017 (1) SA 71
(ECM) where a similar situation to the one
in
casu
arose. The RAF had raised a
special plea claiming that the plaintiff had failed to send or
deliver to it a medical report as contemplated
by s 24 (1) read with
s 24 (2)(a) of the Act, resulting in the claim becoming prescribed.
The
court held that at paragraph 23 thereof that:
“
(23)
As stated at the outset of this judgment, the medical report attached
to the Third Party Claim Form
served on the Fund on 30 April 2014,
was left in blank and no particularity was supplied at all. It lacks
any or all compliance
with any or all of the provisions under the Act
or regulations. Due to its total lack of compliance, the issue of
‘substantial
compliance’ with the Act or Regulations does
not arise. In my view it cannot even be termed as partial compliance;
it can
best be described as non-compliance with the Act and
Regulations.”
The
special plea of prescription was upheld.
21.
In
Busuku
,
unlike the matter at hand, the plaintiff was represented by an
attorney who personally delivered the completed claim form and
incomplete medical report to the offices of the RAF. The issue
in
casu
is whether, in the case where the
RAF’s Direct Claims Department had taken it upon itself to
approach the plaintiff and invite
her to rely on its assistance in
the proper investigation and lodgement of her claim, it can be
allowed to rely on the invalidity
of the claim and its subsequent
prescription. I turn to the case law in this regard.
22.
In
Madzunye
and Another v Road Accident Fund
2007(1)
SA 165 (SCA), Maya JA, had the following to say with reference to the
responsibilities of the RAF, at paragraph 17 thereof:
“
17.
In an unreported judgment
of this court, Road Accident Fund v Roman Klisiewicz, Case
No. 192/2001, handed down on 29 May
2002, Howie JA set out the extent
of the respondent’s responsibilities saying at para 42:
‘
The
[Road Accident Fund] exists to administer, in the interests of road
accident victims, the funds it collects from the public.
It has the
duty to effect that administration with integrity and efficiency.
This entails the thorough investigation of claims
and, where
litigation is responsibly contestable, the adoption of reasonable and
timeous steps in advancing its defence. These
are not exacting
requirements. They must be observed.”
23.
The RAF’s responsibility to
investigate claims with efficiency and integrity was restated in
Pithey,
supra
where the RAF raised a special plea of invalidly of the claim where
there was some confusion as to whether the claim was one in
terms of
s17 (1) (a) (where the driver is known) or s 17(1) (b) of the Act
(where the driver is unknown). Petse JA at paragraph
25 stated that
the RAF ought “
not
to benefit from its own failure to
clarify, with minimal time, effort and expense, whatever confusion
the claim form and attached
documentation revealed.”
The
special plea was dismissed with costs on appeal.
24.
In an unreported judgment of the Gauteng
Local Division, Johannesburg, the matter of
Johannesen
Ralph v The Road Accident Fund,
case no
2014/03112, delivered on 5 May 2016, which Mr Nortier referred me to
after delivering his heads of argument, a similar
scenario to the one
in casu
arose. The plaintiff was also assisted by an employee of the RAF’s
Direct Claims Department in lodging his claim after being
injured in
a motor vehicle accident. The claim was timeously lodged but
thereafter the plaintiff received no responses from the
RAF regarding
the progress of his claim despite several telephone calls and
attendances at the RAF’s offices. Some years
later the
plaintiff consulted with attorneys and was advised that his claim had
lapsed. A new set of attorneys were however willing
to assist. At
that stage so much time had passed that his summons was served on the
RAF five years after the prescribed period
envisaged in s 23 (3) of
the Act. The RAF raised a special plea of prescription which was
dismissed by Siwendu AJ.
25.
The court held in
Johannesen
that where the RAF represents to a claimant that it will assist in
settling a claim without external legal advice, a greater duty
of
care rests on the RAF to take all reasonable steps to prevent claims
prescribing in its hands – which steps would include
responding
to the claimant’s enquiries, bringing the matter to finality,
and informing the claimant about the rejection or
prescription of the
claim. In the absence of evidence by the RAF of the reasonable steps
taken to contact the plaintiff or to properly
process the claim, it
would be unjust for the RAF to benefit from inaction on its part.
26.
I agree with the responsibilities and
duties of the RAF expressed in the above-mentioned matters. In
addition Mr Nortier has referred
to s 24(5) of the Act as being the
nail in the coffin for the RAF. S 24 (5) provides the RAF with 60
days in which to object to
the validity of a claim, failing which it
shall be deemed to be valid in law in all respects. The position is
set out in
Thugwana v Padongelukfonds
2005(2) SA 217 (TPA) at paragraph 7,
where Els J held the following:
“
7.)
Indien daar wesenlike gebreke in die eisvorm en/of die mediese
verslag voorkom welke
gebreke sodanig was dat die eis onregsgeldig
was sou die verweerder in afwesigheid van die bepalings van art 24(5)
bloot kon stilsit,
wag dat die eiser dagvaar en dan die punt neem dat
die voltooiing van sodanige vorm en/of verslag so wesenlik gebrekkig
is dat
die eis ongeldig is. Dit sou duidelik onbillik wees teenoor
die eiser.
Artikel 24 (5) is
derhalwe in die Wet ingevoeg om die onbillikheid teen te werk. Waar
daar gebreke in die eisvorm of mediese verslag
voorkom wat so
wesenlik van aard is dat dit nie regsgeldig is nie, plaas art 24 (5)
nou ‘n regsverpligting op verweerder
om binne 60 dae beswaar
teen die regsgeldigheid daarvan te maak wat die eiser die geleentheid
gee om die gebreke reg te stel. Sou
verweerder nie binne 60 dae
beswaar teen die regsgeldigheid daarvan maak nie, kan hy ingevolge
art 24 (5) nie meer op die gebreke
in die eisvorm of mediese verslag
steun nie. Sou hy wel beswaar maak en eiser stel nie die gebreke reg
nie, bly die eisvorm en/of
mediese verslag onregsgeldig.
Artikel 24 het nie
ten doel om met enige ander prosedurele aangeleenthede behalwe die
daarin uiteengesit, of dit nou artikels van
die Wet en/of regulasies
is wat prosesregtelik van aard is, te handel nie.”
This
position was confirmed on appeal in
Thugwana
v Road
Accident Fund
2006(2) SA 616 (SCA).
27.
In casu,
it
is not just that the RAF did not object to the validity of the claim
due to the medical report being incomplete, it clearly undertook
to
obtain such medical report on behalf of the plaintiff. I say this,
since it was the RAF, and not the plaintiff, who eventually
during
2014 attended to the completion of the medical report. In such an
instance it is in my view even more egregious of the RAF
to seek to
benefit from their own tardiness.
28.
In my view the RAF’s first special
plea should be dismissed.
The
RAF’s second special plea
29.
The above remarks with regard to the duties
and obligations of the RAF and its employees (with the exception of s
24 (5)) apply
equally to the second special plea of the RAF.
30.
The plaintiff’s evidence stands
uncontested that she was never informed by any employee of the RAF
over the course of a period
of years of making telephonic enquiries
regarding her claims, that her claim would be rejected and/or that
she would not be compensated
or that the claim would prescribe and
that she would be best advised to consult an attorney. There can be
no doubt that the RAF
has breached it legal duty of care towards the
plaintiff in this regard. As Mr Nortier has correctly contended the
RAF should not
be allowed to hide behind its own negligence.
31.
In her replication to the special pleas of
the RAF the claimant has pleaded that the RAF has waived the right to
take defences such
as the invalidity of the claim and/or
prescription. It is by now settled that a statutory provision enacted
for the special benefit
of any individual or body may be waived by
that individual or body, provided that no public interests are
involved (See
SA Eagle Insurance Co Ltd
v Bavama
1985(3) SA 42 (A) at 49 G-H;
Road Accident Fund v Mothupi
:
2004 (4) SA 38
SCA 49 F-G;
Road Accident
Fund v Ngubane
2008 (1) SA 432
(SCA)
paragraph 11).
32.
There is a presumption against waiver and
the onus to prove it rests upon the party asserting it. It has been
held that clear proof
is required, especially in the case of a tacit
waiver, as is alleged
in casu
.
33.
The uncontroverted evidence of the
plaintiff is that until she had instructed her attorneys of record
during 2014 to attend to her
claim, she had received reassurances
from the RAF’s employees that her claim was in order and that
they will revert to her.
She was never informed that the claim was
about to or has prescribed. It is significant in this respect that
the RAF 1 Claim Form
does not indicate at all the date of
prescription of the claim. The only time the date of prescription
appears in the file of the
RAF is in the RAF’s internal
correspondence after the plaintiff’s attorneys were instructed
to pursue the claim.
34.
This conduct of the RAF is in my view
unequivocal and consistent with no other hypothesis that that it has
waived its right to raise
or rely on prescription (See
Mothupi
supra
at paragraph 19).
35.
Having found that the RAF has waived its
right to rely on prescription, I do not intend to deal with the issue
of estoppel.
36.
The RAF’s second special plea relates
only to prescription in terms of s 23 (1) and s 23 (4) of the Act. It
does not deal
with prescription of the plaintiff’s alternative
delictual claim against the RAF based on vicarious liability. I
therefore
do not deal with Mr Nortier’s submissions relating to
the
Prescription Act 68 of 1969
.
37.
The RAF’s second special plea also
stands to be dismissed.
1
st
Defendant’s special plea
38.
This special plea is based on s (15) 3 of
the Act which in effect exempts
inter
alia
a Board member or officer of the
RAF from liability from “
anything
done in good faith in the exercise of his or her powers or the
performance of his or her functions or duties under or in
terms of
this Act”
.
39.
The claim is however not brought against
the CEO of the RAF in his or her personal capacity, but is based on
the vicarious liability
of a state organ for the negligence of its
employees. Therefore, it was argued by counsel, it was necessary to
sue or join the
nominal head of the RAF in the plaintiff’s
action, in his or her
nomino
officio
capacity,
as the person ultimately responsible for the conduct of the employees
of the RAF.
40.
I agree with the contention of Mr Nortier
and in my view the 1
st
defendants’ special plea also stands to be dismissed.
41.
There is no reason why costs in this matter
should not follow the result. Mr Nortier has however also asked that
the plaintiff and
Ms de Jongh be declared necessary witnesses and
that the defendants pay the wasted costs of the postponement of the
trial on 27
May 2020. I however have no information regarding the
circumstances of that postponement except for a note on the court
file that
the matter was postponed
in
absentia
. The costs of 27 May 2020
should therefore best stand over for later determination
In
the circumstances the following order is made:
a)
The 1
st
and 2
nd
defendants’ special pleas
are dismissed with costs, the one paying, the other to be absolved;
b)
Ms Denise de Jong and Ms Katrina Lottering are declared to have been
necessary witnesses
and their reasonable expenses should be allowed;
c)
The costs of 27 May 2020 are to stand over for later determination.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv. L Nortier
P
Joubert Inc.
For
Defendants: No
appearance