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2020
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[2020] ZALMPPHC 77
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Mabye v Road Accident Fund (4677/2017) [2020] ZALMPPHC 77 (21 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO
/YES
(3)
REVISED.
CASE
NO: 4677/2017
In
the matter between:
REBECCA
MOKGADI MABYE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MG
PHATUDI J
Summary
:
Civil procedure- a defendant who participated in litigation- filing a
plea but fail to
appear
in court to proceed with his/her defence, and absent himself/herself
from the remainder, of trial must be accounted a defaulter
– if
by withdrawal of or termination of attorney’s mandate without
substitution of a new attorneys of record –
such party in
default if on trial date there is no appearance at all on the
defendant’s behalf –
in casu,
there was no consent
by parties that the matter be either removed or postponed.
Held
-
defendant in default – plaintiff awarded general damages and
claim for loss of earnings
with
costs.
[1]
The plaintiff in this matter issued a combined summons against the
defendant on 28 June 2017. The claim
arises from a motor
vehicle accident that occurred on 26 September 2015 along Ga-Mushi
public road, Limpopo Province.
At the time of the
collision, the plaintiff was a passenger in a motor vehicle driven by
one Mr.Mabula, (the insured driver) which
collided against a motor
vehicle with an unknown plate registration numbers (the insured motor
vehicle).
1.1
The Plaintiff in this action claims damages against the defendant for
the bodily injuries incurred as a result
of the accident. The
said injuries were medically described as head injury, multiple scalp
lacerations and chest pains.
1.2
In her particulars of claim, the plaintiff alleged that the collision
referred to was caused by negligence
on the part of the insured
driver whose details were to her unknown. The particulars of
the alleged negligence were set out
in paragraph 5 of the particulars
of claim
[1]
1.3
It was further alleged that as a result of the aforestated collision,
the plaintiff’s damages includes
past and future medical
expenses, loss of earnings and general damages being for pain and
suffering, loss of amenities of life,
permanent disability and
disfigurement, the total whereof amounted to R5 Million. This
figure, however, was a mere estimation
prior to involvement of the
experts’ report.
[2]
I remark at this point that the defendant in resisting the action
filed a Special Plea and a Plea which
was delivered on 18 August 2017
on plaintiff’s attorneys. Subsequent thereto and on 27
September 2017, the parties’
legal representatives held a pre
trial meeting in Polokwane the minutes whereof were jointly signed on
even date.
[3]
Notice of set down was delivered on 05 March 2020. Prior to the
delivery thereof, Muller J certified
the matter trial ready on 07
February 2020 both on merits and quantum. In the same breath,
the learned Judge directed the
parties to submit the signed joint
minutes (“JM”) by 28 February 2020.
[4]
The plaintiff on 16 April 2019 brought an interlocutory application
in terms of which she sought an
order directing the defendant to
deliver its discovery affidavit within ten (10) days from the date on
which the order granted
is served on the plaintiff’s
attorneys. In the same breath, an order was sought that failing
compliance with the said
order, the plaintiff (applicant) shall be
entitled to approach the court on the same papers, for the striking
out of the defendant’s
plea and the granting of judgment
by default in the main action. The relevant application was set
down for hearing
before Ledwaba AJ on 20 June 2019, at which
occasion, the relief sought was granted by default.
[5]
Subsequent thereto, and after passage of some 4 months down the line,
Kganyago J granted absolutely
an order on 12 November 2019 that the
defandant’s plea (respondent) in the main action be struck
out. Additionally,
an order was granted that the main plea be
dismissed as “
the matter is undefended”.
The
said order was issued pursuant to a second interlocutory application
launched on 09 September 2019.
[6]
I must point out early in this judgment that, Counsel for the
plaintiff, adv. Mojamabu informed
this court at the
hearing of the matter seeking default judgment that the defendant has
to date made no effort either to
seek a rescission of the latter
order/s nor sought to appeal against the same.
[7]
The present proceedings were as already shown enrolled for hearing on
01 June 2020 as per notice of
set down delivered on 05 March 2020.
When the matter was called on 01 June 2020 it was rolled over to 05
June 2020. There
was no appearance for the defendant on the two
days on which trial was due to commence. In other words, the
defendant remained
in default and no written explanation was advanced
for its default. The claim was therefore heard on uncontested
basis.
[8]
As directed and in compliance with the court order made on 01 June
2020, plaintiff’s counsel,
Mr. Mojamabu, submitted written
concise heads of argument to substantiate the plaintiff’s
claim. This document was
identified and marked exhibit “C”.
In it, he submitted that the issues for determination are general
damages and loss
of earnings or earning capacity.
[9]
At the hearing, the plaintiff’s counsel submitted an
Ophthalmologist’s report dated 23 Janaury
2019 (annexure “A”)
for consideration by the court. This document, in my view, does
not take the plaintiff‘s
claim any further. It merely
restates the nature and extent of the injuries sustained as recorded
in medical records.
What matters, of course, is that
according to this annexure, “there is no significant change in
general function (sic) as
vision is concerned. In addition,
“there was no significant ocular injuries sustained” from
the accident, so
concluded the eye specialist, Dr H.L Letsoalo in
her/his report.
[10]
From a reading of the papers before court, including all expert’s
report, it cannot be said that the plaintiff
did not establish or
quantify her claim. The notice in terms of Rule 36 (9) (b)
[2]
with regard to expert notices was dispatched and threw light on the
actuarial calculations made as at 07 February 2020. This
report, was not negated by other evidence to the contrary.
C:
THE ISSUE:
[11] The
issue at stake is whether the Plaintiff succeeded to establish her
claim against the defendant on a balance
of probabilities.
D-
LEGAL FRAMEWORK:
[12] The
general principle applicable in claims of this nature is that the
court is bestowed with a judicial discretion
to determine the amount
of compensation to be awarded as damages if, of course, the
plaintiff’s claim has merit.
[13] In
the present case, the defendant had initially entered an appearance
to defend and thereafter formulated a special
plea, accompanied by a
plea proper. The pleadings having closed, save for discoveries,
and the matter being certified trial
ready on both merits and
quantum, the matter was heard on 05 June 2020. As already
shown, (para7: supra) the defendant was
despite service of the set
down, in default.
[14] The
reasons for the default were not advanced in court on behalf of the
defendant. However, it is common
cause that the defendant had
previously withdrawn the mandate of its panel attorneys,
in casu
,
the firm Hamman- Moosa Incorporated. Of importance is that the
said firm did not formally file with the Registrar a notice
of
withdrawal as attorneys of record in this matter. Similarly, no
formal written request was received from the defendant,
Its claim
handlers or functionaries, seeking a postponement of the matter
pursuant to the ongoing impasse between or among the
panel of
attorneys and the defendant (Road Accident Fund) which, in event,
should not in anyway be attributable to the present
litigants,
particularly, the plaintiff and her attorneys.
[15] The
view I took of the matter therefore was that a defendant who
participated in the litigation from inception
and delivered a
defence, but thereafter fails to appear in court to proceed with
his/her defence without any explanation proferred
for non-appearance,
thereby absenting himself/herself from the remainder of the
proceedings must, in my view, be accounted a defaulter.
Vide:
KATRISIS v DE MACEDO
[3]
[16] If
by withdrawal or termination of his/her attorney’s mandate
without substitution by introducing a new firm
of attorneys such a
party is thus in default if on trial date, there is no appearance at
all on his/her behalf.
[17] In
the present case, there was no indication whatsoever if the parties
ever agreed or consented that the matter
be either removed or
postponed beyond the appointed hearing date. What therefore can
safely be said as guided by the old
authorities was that the
defendant was in default (“verstek”- in Afrikaans,
“abzentie of afwezen-“in Dutch)
[4]
[18]
That said, the court received only one side of the facts and the
evidence in support of the plaintiff’s claim.
There was
no countervailing evidence to negate the plaintiff’s claim,
either. In the premise, I held that the plaintiff
succeeded to
establish its case on a balance of probabilities.
[19]
What remains to be considered therefore is the determination of the
amount of compensation to be awarded.
It is trite that an
inquiry into damages for general damages resides in the court’s
discretion, while the quantum in relation
to loss of earnings is, by
and large, of its nature speculative. This is because is like
one venturing in conjecture without
the benefit of one being a
soothsayer, of which courts of law are none. All that the court
can embark on is to make an estimate,
which is usually very rough,
and seek to present value for the loss.
[20] All
that is crucial is for the court to make an award based on fairness
and equity to both parties, and above all,
be reasonable in a given
case. What the court may certainly not do for this reason, is
to adopt a
non possumus
attitude and refrain from making an
award at all.
[21] On
a conspectus of the facts herein, I am satisfied that the plaintiff
has on the evidence presented, at least
suffered some monetary
damage, which I am by law obliged to assess and make an award that
fits the claim.
See
also, HERSMAN v SHAPIRO & COMPANY
[5]
[22] In
the circumstances, I make an order as follows:
E.
ORDER
(a)
The defendant is ordered to pay an amount of R3 684 278.00
to the plaintiff, being for general
damages and loss of earnings or
earning capacity;
(b)
The defendant is liable to pay the costs of suit.
(c)
The draft order handed up and marked “X”, is made an
order of court.
MG PHATUDI
JUDGE OF THE HIGH
COURT
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATIONS:
Counsel
for the Plaintiff :
Adv S.K Mojamabu
On
brief by
: Chueu Inc, Lephalale
Counsel
for defendant :
No appearance
Date
Heard
: 05 June 2020
Date
delivered
: 21 August 2020
[1]
Index to pleadings – P5-6
[2]
Uniform rules of the court, expert notices attached actuarial
Report, exhibit “B”, by Dr. Robert Koch.
[3]
1966 (1) 613 (A-D)
[4]
Ibid. P618, A-B
[5]
1926 (TPD) 367 at 379 – Stratford J