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[2019] ZAGPPHC 240
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Morolong v Leketi and Another (58767/15) [2019] ZAGPPHC 240 (28 June 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO: 58767/15
In
the matter between:
TSHIAMO KGOSI
MOROLONG
PLAINTIFF
And
MMUSO OSCAR
LEKETI
FIRST DEFENDANT
ROAD
ACCIDENT FUND
SECOND
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This is an
action wherein the Plaintiff claims damages arising from injuries
sustained by him in a collision which occurred on or
about 13 October
2007. At the time of the collision the plaintiff was a passenger in a
motor vehicle (
insured
vehicle
)
travelling on the Mahobieskraal /Bapong Road, North West Province.
The driver of the insured vehicle lost control and capsized
as a
result of which the plaintiff sustained severe bodily injuries which
has left the plaintiff in a quadriplegic state.
2.
As against
the first defendant the plaintiff claims damages based on a breach of
contract and against the second defendant, the
plaintiff’s
claim is based on a breach of a delictual duty of care after the
plaintiff’s statutory claim in terms of
the
Road Accident Fund
Act 56 of 1996
has become prescribed.
3.
At the
commencement of the proceedings the plaintiff withdrew his claim
against the first defendant and tendered the wasted costs
occasioned
by such a withdrawal. He elected to proceed only against the second
defendant and in this regard the court was called
upon to determine
the
liability
of the Road Accident Fund separate from the quantum of the matter. In
terms of
Rule 33(4)
the Court accordingly ordered such a separation.
ISSUES
TO BE DETERMINED
4.
In essence
this court was called upon to determine two issues: Firstly whether a
valid claim has been submitted to the second defendant
and secondly,
whether the second defendant has a duty of care towards the plaintiff
where the plaintiff ostensibly still had an
attorney on record.
5.
As per the
particulars of claim, the plaintiff’s claim against the second
defendant is formulated as follows:
“
10. The Plaintiff
upon the express invitation of the Second Defendant lodged his claim
directly with the Second Defendant on 30
October 2008, where after
the Second Defendant acknowledged receipt of all necessary claim
documents.
16. The Plaintiff having
lodged his claim directly with the Second Defendant on 30 October
2008, the Second Defendant’s statutory
duties and obligations
(as set out in the RAF Act) and as indicated on the Second
Defendant’s public communications) expressly
and/or tacitly
included inter alia the following:
16.1 That the Second
Defendant would conduct all investigations and take all steps
necessary and do all things ancillary to and
in pursuance of the
finalization of the Plaintiff’s claim against the Second
Defendant;
16.2 The Second Defendant
would keep the Plaintiff informed and in particular advise the
Plaintiff of the most suitable options
available to him in respect of
the amounts that the plaintiff may claim from the Second Defendant;
16.3 That the Second
Defendant would inform and keep the Plaintiff informed of amendments
to the
Road Accident Fund Act alternatively
case law relevant to the
Plaintiff’s claim against the Second Defendant.
17. The Second Defendant
aforesaid in breach of its duties and obligations and duty of care
arising therefrom:
17.1……………………………………………..
17.2……………………………………………..
17.3……………………………………………..
17.4 Failed to inform the
Plaintiff of when the Plaintiff’s claim against the Second
Defendant will prescribe as determined
by the
Road Accident Fund Act;
17.5 Failed
to settle the
Plaintiff’s claim with the Plaintiff before prescription
thereof.”
[1]
6.
In response
to the above pleaded case by the plaintiff, the second defendant
responded as follows:
6.1
Save
to admit that the Plaintiff lodged a claim with the Second Defendant
on 30 October 2008, that the Plaintiff demanded payment
witch the
Second Defendant failed and/or refuse to pay, the Second Defendant
has no knowledge of the remainder of the contents
of these paragraphs
and puts the plaintiff to proof thereof.
[2]
6.2
The
Second Defendant denies the contents of these paragraphs and pleads
specifically that:
6.2.1
During
or about 22 June 2009 the Plaintiff duly authorised Leketi Attorneys
to act on the Plaintiff’s behalf, which attorneys
informed the
Second Defendant that they are acting on behalf of the Plaintiff and
filed a Special Power of Attorney and Letter
of Authority with the
Defendant. Copies of these documents are attached hereto as Annexure
‘A’ to ‘C’,
respectively, to which this
Honourable is respectively referred.
6.2.2
By virtue
of having so instructed and authorised Leketi Attorneys, the
existence of statutory duty or obligation which may have
emanated
from the Act or otherwise between the Plaintiff and the Second
Defendant came to an end. The remainder of the allegations
in these
paragraphs are, by virtue of the above, denied.
EVIDENCE
7.
Mr. Oscar
Leketi was the first witness to testify on behalf of the plaintiff.
It was his testimony that he was an attorney by profession
and that
he had been practicing for his own account for the last ten years. On
22 June 2009, he first obtained a mandate from the
plaintiff to
institute a claim against the second defendant for damages as a
result of personal injuries sustained in a collision.
At the time
when he received an instruction, the plaintiff already had lodge a
claim with the Road Accident Fund directly. On this
day he handed to
him copies of his identity document, a copy of his submitted RAF 1
claim form and copies of his medical records.
On the same day
the plaintiff also gave him the details of the driver of the vehicle
in which he was a passenger at the time
when the collision occurred.
Following this initial meeting with the plaintiff, he then made
telephonic contact with Mr. Selanga,
an official employed at the Road
Accident Fund during which conversation he had informed him that
henceforth that he will be acting
as the attorney of the plaintiff.
Pursuant thereto a letter and his power of attorney was then
forwarded to the second defendant.
[3]
In the days which
followed, he then consulted with the driver in which the plaintiff
was a passenger and he obtained his account
of how the collision
occurred. Given the version obtained he then advised the plaintiff
that his claim would be limited to R 25 000.00.
It was then that
a mutual agreement was reached for his mandate to be terminated. He
then informed the second defendant
via
letter dated 17 August 2009 and returned to the plaintiff his
documents accordingly. It was also the testimony of Mr. Leketi that
he had further advised the plaintiff in future to liaise with the
second defendant directly.
During cross-examination,
the witness reiterated his initial mandate to act on behalf of the
plaintiff, which mandate was shortly
thereafter terminated. He
furthermore, confirmed that following the sending of his letter of
termination that he never received
an acknowledgment from the second
defendant neither could he recall as to whether he at any point had
made enquiries as to whether
his termination of mandate was at all
received by the second defendant.
8.
Mr. Tshiamo
Morolong testified that on 13 October 2007 he was involved on an
accident wherein he sustained injuries to his spine
and neck and that
he was left a quadriplegic following the collision. Soon after the
collision, he with the assistance of his mother,
submitted his RAF 1
claim form and an affidavit as to how the collision occurred. He
confirmed the contents of the affidavit,
[4]
and testified that
because he was injured that the affidavit was deposed to by his
mother. This was the same position with the completion
and signing of
the RAF 1 claim form appearing on Exhibit B pages 318-321, which form
was submitted to the Road Accident Fund on
30 October 2008. Mr
Morolong further confirmed having instructed Mr Leketi during June
2009 but soon thereafter having terminated
his services. From around
September 2009 and during the years which followed, he made several
telephonic enquires directly with
the Road Accident Fund during which
time he had established that on their system that Mr Leketi was still
listed as his attorney.
On occasion he made telephonic contact with
Mr Leketi and informed him that according to the system of the Road
Accident Fund,
that he was still listed as his attorney. Around
December 2013, he then instructed Jerry Nkeli to represent him and
assist him
with his claim. Not much was done by this attorney and he
then terminated this attorneys mandate on 9 January 2014.
[5]
Eventually during July
2015 he then instructed his current attorneys to represent him with
his claim.
During cross-examination
the witness confirmed that following the collision that he was unable
to write for a while and was hospitalised
for a period of two weeks
and that he had spent 3 months in a rehabilitation centre. He only
was able to write again during late
2009. He further confirmed that
almost a year following the collision that he with the assistance of
his mother submitted his claim
to the Road Accident Fund. He once
again confirmed not having signed the claim form before it was
submitted to the Road Accident
Fund. During cross examination he also
confirmed that at the time when he instructed Mr. Leketi, around June
2009 that he was unable
to sign the special power of attorney and
that his mother was responsible for signing same. Mr Morolong also
confirmed that following
the termination of his mandate to Mr. Leketi
that he was never given a letter of termination by Mr. Leketi. In
relation to Exhibit
A page 9, he also confirmed that he confronted
Mr. Leketi with the contents of the letter but that Mr Leketi had
advised him, not
to complete the letter nor take it to the bank.
9.
Ms Thabitha
Morolong testified that she is the mother of the plaintiff and
following her son’s collision that he was left
wheelchair
bound. It was her testimony that on occasion when her son was too
deposed to an affidavit as to how the collision had
occurred that her
son was unable to write and with the permission of the police
official attending to them, she was permitted to
sign his affidavit
which was later submitted to the Road Accident Fund. She
further testified that this was also the position
with the completion
of the RAF claim form, which was also signed by her as if she was the
claimant.
During cross-examination,
Ms Morolong confirmed that she and the plaintiff have the same
initials and that she had signed the forms
as her son at that point
in time was unable to write is own name. In relation to the affidavit
deposed to by her, she equally conceded
that prior to the signing of
the affidavit, that she had been remiss to read the affidavit as it
was written in English.
10.
This then
concluded the
viva
voce
evidence
presented on behalf of the Plaintiff.
11.
The
Defendant also then closed its case without presenting any evidence
to rebut the viva vice evidence presented by the plaintiff.
THE
LAW
12.
Section 24
of Act 56 of 1996 provides as follows:
‘
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;
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.”
13.
In addition
to this, Section 19(f) of Act 56 of 1996 provides as follows:
“
The Fund or an
agent shall not be obliged to compensate any person in terms of
section 17 for any loss or damage-
(f) If the third party
fails-
to submit to the Fund or
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
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.”
EVALUATION
14.
Mr Coetzee
on behalf of the second defendant had argued that the claim form in
the present instance was not signed by either the
claimant/plaintiff
or his attorney, but instead it was signed by his mother. In addition
to this, he had submitted that the claim
form specifically provides
that where it is not signed by the claimant personally, the person
who signs the form in a representative
capacity is required to
stipulate the capacity in which the claimant is acting, the full name
and address of the claimant, the
identity number of the person and
the relationship to the claimant. In the present instance having
regard to the form itself, it
was not stipulated and it is on this
basis that counsel had argued, no valid claim form was submitted to
the Road Accident Fund
for consideration.
In addition to the above,
counsel had argued that the failure by the plaintiff to have signed
the claim form, only came to the knowledge
of the Road Accident Fund
during the trial and as such this failure of non-compliance with the
provisions of section 24(1) (a),
section 24(4) (a) and section 19(f)
of Act 56 of 1996 could not have been raised on the pleadings.
In contrast counsel
appearing on behalf of plaintiff had argued, that this court must
remain mindful of the provisions of Uniform
Rule 18(4) which
requires of a pleader to set out “ a clear and concise
statement of the material facts upon which the
pleader relies for
his claim, defence or answer to any pleading….With sufficient
particularity to enable the opposite
party to reply thereto”.
Furthermore, that where a concession on the merits have been made by
a party that party cannot
at a later stage place any issue conceded
in dispute. In this regard specifically, counsel referred this court
to the pre-trial
minute
[6]
produce of a pre-trial
meeting conducted on 24 October 2018, where at such meeting, the
second defendant admitted the negligence
on the part of the insured
driver, the date, time and place of the accident and that the
plaintiff was conveyed as a passenger.
At such meeting it was
further recorded that when the matter goes on trial the only triable
issues that were recorded were to
be the issue of prescription on
behalf of the first defendant and whether the second defendant was
notified of the termination
of the mandate of the attorney on record
for the plaintiff. It is therefore on this basis that Mr. Van Tonder
had argued that
the merits was not a disputed issue and as such
non-compliance with any of the provisions of the Road Accident Fund
cannot at
trial stage be raised as a defence.
This Court having
considered the submissions made by counsel for the second defendant,
cannot agree with the submission made by
counsel that the Road
Accident Fund was precluded from amending its plea to bring such
plea in line with the tendered evidence.
It stands to reason
therefore, that if the second defendant was of the opinion that this
court should favourably have considered
the provisions of section 24
and 19 respectively, its plea ought to have been amended to allege
such non-compliance. In the presence
instance this was not done and
as such cannot now be considered by the Court as the plaintiff was
not forewarned of such and
cannot be expected to answer to a trial
by ambush.
17.
In addition
to this, the concessions made by the second defendant during the
pre-trial meetings as far as the merits are concerned,
remains
unqualified and as such this Court cannot just merely disregard same.
18.
In the
decision Gusha v Road Accident Fund
2012 (2) SA 371
(SCA) support for
the above contention is found. In the cited decision, the court had
found that the unqualified concession of
the Road Accident Fund of
liability renders it both impermissible and opportunistic for it now
to attempt to introduce the claimant’s
contributory negligence
in order to seek a reduction in the extent of its liability. The same
reasoning can and should be applied
in the present instance.
19.
As for the
triable issue raised during the pre-trial meeting conducted on 24
October 2018, the triable issue raised was the question
whether the
second defendant was informed of the termination of mandate of Mr.
Leketi. His uncontroverted evidence on point was
that he indeed had
sent a letter to the fund informing them of his termination of
mandate dated 17 August 2009. As no evidence
in rebuttal was
presented by the second defendant in this regard, this court must
accept his evidence and consequently no merit
could be found on this
point.
ORDER
20.
In the
result, the following order is made:
20.1
In terms of
Rule 33(4) the Court orders a separation of the merits to be
determined separately from that of the
quantum
;
20.2
The Second
Defendant is held 100% liable for the agreed or proven damages of the
Plaintiff.
20.3
The
Plaintiff is awarded costs, including wasted costs of the proceedings
of 21 August 2018.
20.4
The trial
on
quantum
is postponed sine die.
COLLIS J
JUDGE
OF THE HIGH COURT OF
SOUTH AFRICA
Appearances
:
For
the Plaintiff
: Adv. H. Van Tonder
Attorney
of the Plaintiff
: Edeling Van Niekerk Inc.
For
the Second Defendant
: Adv. F. Brand SC & Adv. L.Coetzee
Attorney
for the Defendant
: Tau Palane Inc.
Date
of Hearing
: 15 November 2018
Date
of Judgment
: 28 June 2019
[1]
Exhibit B p 3-14
[2]
Amended Plea para 6 p 44
[3]
Exhibit B pg 10,11,& 12
[4]
Exhibit B p 312
[5]
Exhibit C p 1
[6]
Index to Pre-Trial Minute pg 44