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[2019] ZAGPPHC 470
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Horn obo Mokoena v Road Accident Fund (915/2017) [2019] ZAGPPHC 470 (4 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
Reportable: Yes
(2)
Of Interest to other Judges: Yes
CASE NO: 915/2017
4/7/2019
In
the matter between:
ADVOCATE
NICO HORN
(on
behalf of LEPHETHISANG ALPHJOS
MOKOENA)
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Reasons
for order
MAKHUVELE J
Introduction
[1]
The plaintiff is the
curator
ad litem
duly
appointed and clothed with amongst others, powers to conduct
litigation and related functions to prosecute a claim against
the
Road Accident Fund (defendant) on behalf of Lephithisang Alpheos
Mokoena (who I shall henceforth refer to as 'Mokoena'), an
adult
male, to recover damages resulting from injuries that he sustained
when he was knocked down by a motor vehicle on or about
07 October
2015.
[2]
On 18 October 2016 the defendant made an
offer of settlement on the basis that the accident was caused by the
joint negligence of
both the insured driver and Molmena and that the
latter's contribution thereof was 30%. This offer was duly accepted
by Mokoena's
attorneys and the acceptance was subsequently ratified
by the plaintiff.
[3]
The trial before me was only with regard
to the issue of quantum, specifically on loss of earnings and general
damages. At the commencement
of the trial I was Informed that the
parties had agreed to settle the claim for future medical expenses on
the basis that the defendant
would provide an undertaking certificate
in terms of
Section 17(4)
of the
Road Accident Fund Act, No. 56 of
1996
.
[4]
This matter was allocated for a two (2) hour argument before me on
what was Indicated
in chambers to be a dispute relating to the
appropriate contingencies to be applied on the agreed calculation for
loss of earnings.
With regard to the general damages, there was no
real dispute but merely a measly amount differential
[5]
The plaintiff’s counsel proceeded
to address me on the common cause issues arising from the filed
expert medical reports.
He also referred to the joint minutes of the
Orthopaedic surgeons, Clinical psychologists, Neurosurgeons,
Occupational therapists
and Industrial Psychologists. There were
other medical expert reports that were not contested. I was advised
that there was no
need for me to interrogate the agreements between
the joint medical experts because none of the parties has timeously
disputed
their findings and that this was ln line with the SCA
decision in the matter of Glenn
Mare
Bee v Road Accident Fund
[1]
.
[6]
According to the medical expert reports
Mokoena has suffered a traumatic brain injury with serious sequeale,
a chest injury, left
tibial injury with and injury to the knee , lung
contusion, grade 4 renal failure, multiple facial, hands, knees, and
right hip
abrasions, right shoulder injury , dental injury with loss
of teeth and lumber spine fractures. He has a permanent neurological
disability.
[7]
The medical experts were in agreement
with regard to the extent of the injuries, sequelae, prognosis and
bleak prospects regarding
future employability and personal care to
such an extent that there was a need for appointment of a
curator
bonis
for Mokoena at a later stage.
According
to the plaintiff
(curator
ad /item),
Mokoena
cannot communicate meaningfully as he is severely dysphasic. He can
only give hand gestures and nodding. The defendant did
not raise any
disputes with regard to the plaintiff's entitlement to the assessed
damages as well as the basis for and the actuarial
calculations of
loss of earnings.
[8]
The plaintiff's actuaries were guided by the agreements between the
respective Industrial
Psychologists for the basis of calculation of
the loss of earnings. The defendant did not file any actuarial
calculations.
The
Issue for determination
[9]
In a surprise move, the alleged contingency dispute was not raised in
court. As counsel
for the plaintiff was wrapping up his submissions
with regard to the common cause issues and confirming that no
disputes were raised
on any one of them, I then enquired if there is
any remaining dispute at all. That is when I was advised that the
defendant's counsel
had indicated that she intended to argue for a
reduction of the agreed nett loss of income with the value of the
disability grant
that Mokoena is or was receiving.
[10]
The two (2) hour allocation ended up being a full blown trial lasting
one and a half days on
an issue that was not pleaded, or raised In
any of the pre trial conferences.
[11]
I agree with the sentiments expressed by counsel for the plaintiff
that this was a classic trial
by ambush because this issue was only
communicated to him as he was addressing the court on issues that
were common cause to enable
me to apply my mind on the question of
appropriate contingencies.
[12]
At the end of the first day of trial, counsel for the defendant
indicated that she had not considered
the Constitutional Court
judgment that the plaintiffs counsel had referred to although she had
read a bit during the proceedings.
She asked for an indulgence and my
copy as she wanted to read it overnight. When I adjourned the
proceedings, I requested her to
reflect on the issue of costs and
whether, under the circumstances, the representatives of the
defendant should be entitled to
costs beyond the two hour allocation
or at most one day trial fees
[13]
I heard the parties' respective argument and considered the relevant
authorities that were occasionally
handed up, thanks to the
technological advancements that allow for a quick access to legal
reports. I rejected the defendant's
contentions on this issue and
proceeded to make an order that was by consensus , save for this
issue and a difference of R200 000.00
In general damages. Due to time
constraints, I was unable to give an
ex
tempore
judgment
on the disputed issue, but undertook to issue written
reasons
on it as well as the cost order on 'attorney and client scale' as
indicated in paragraph 10 of the order.
[14]
I made an order that is attached to
these reasons
as 'XY'.
It
makes provision for amongst others, an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act and
payment of an
amount of R1 531 934.00 which comprises of 70% of the proven loss of
earnings and general damages in the respective
amounts of R551 934.00
and R980 000.00.
[15]
The purpose of these written reasons is
to restate the legal position with regard to the question of
deductability of Social Assistance
grants from damages awarded to
claimants in Road Accident claims. The second issue is about costs
for the extended trial under
circumstances where the issues were not
raised in pleadings.
Submissions
Plaintiff
[16]
The argument was based on case law. The
contest being which of the cases are relevant and binding on me.
[17]
Counsel for the plaintiff referred to
the following cases;
[17.1]
Nxele
v President Insurance CO LTD (WLD) Case No. 8652/92
[2]
at
C4-6 per Blieden J
"As far as the disability
grant
of
R293
per month is concerned, this amount has nothing to
do
with the plaintiffs
former employment. It is an amount paid
to
any person who
proves his disability even if he at
no
stage had a
job
at all. It Is
nothing but a gratuitous payment made by the State
to
those who cannot
fend for themselves because of
a
physical or mental
disability and who have no source of income. The law in this country
is that payments made
as
gratuities
are
not deductable from
any awards for loss of
earning
capacity. This has
been authoritaitvely settled by our courts, Santam
Versekeringsmaatskappy v Byleveldt 1973 (2) SA 146 (A) at
150F, where
Rumpff JA (es he lf)(,n
was)
quoted with approval
Lord RE/D's dictum In Parry v Cleaver 1970 AC 1 at p 14, which is to
the following effect:
It would be revolting
to
the ordinary
man's sense of justice, and therefore contrary to public policy, that
the sufferer should have his damages reduced
so that he would gain
nothing from the benovolence of his friends or relatives, or
of
the public at
large, and that the only gainer would be the wrongdoer''
[17.2]
Masipa J in the matter of
Mabunda
Johannes v Road Accident Fund (WLD)
[3]
outlined
the procedures for applying and suspension of a grant in terms of the
Social Assistance Act 13 of 2004. A person qualifies
for the grant if
he/she satisfies the applicable means test and it may be suspended or
cancelled when the applicant's financial
situation improves to such
an extent that he/she no longer qualifies. At paragraph [47] she
stated the following,
"Counsel for the plaintiff
correctly submitted, In my view, that the enquiry
as
to whether or not
the grant ought to be suspended is not one for this Court to decide.
However, the court was urged to make an order
compelling the parties
to disclose the
award
granted to the South African Social Security Agency to protect its
interess.
[17.3] The suggested court
order was however not made. The plaintiff's counsel also suggested an
order along these lines,
however, in my view these are administrative
matters that the defendant should have dealt with and can still
attend to at any time
in terms of its role and mandate. A disability
grant is subject to periodic reviews and such entail an obligation to
make certain
disclosures.
[17.4]
Mavundla J in this division was faced with a simi
lar
issue in the matter of
Sello
Marks Moroane v Road Accident Fund
[4]
.
He relied on the Constitutional Court judgment in the matter of
Coughlan
NO v Road Accident Fund
[5]
where the issue was whether foster care grants are deductable when
calculating future loss of support for the children. The High
Court
had held that it was not deductable because it was
res
alios acta.
This
decision was overturned by the Supreme Court of Appeal. The
Constitutional Court disagreed with the SCA's decision that the
grants amounted to double compensation because the grant is not paid
as damages but in terms of the State's constitutional obligations.
The grant is paid on the basis of need of care and there is no causal
link with the death of a parent. It also took into account
the fact
that the RAF Act is silent on the matter.
[17.5] The Constitutional
Court mentioned one exception specifically provided for in the RAF
Act, namely, if the claimant
is entitled to claim under the
Compensation For Occupational Injuries and Diseases Act, Act No.130
of 1993.
[17.6]
In this judgment, the Constitutional Court was also asked to decide
whether the SCA decision in the matter of
Road
Accident Fund v NF Timis
[6]
was correct where it was stated that:
'The Slate assumed
responsibility for the support of the children
as
a
result of the
breadwinner's death. The moneys paid out in terms of the
Road
Accident Fund Act and
the
Social Assistance
Act are
funded
by the public through two State organs. Not to deduct the child grant
would amount to double recovery by the respondent [the
mother] at the
expense of the taxpayer and this is incapable of justification. In my
view it was not the intention of the Legislature
to compensate the
dependants twice.'
[17.7] The answer to
this was as follows:
[57]
That reasoning is not sustainable . It fails
to
acknowledge the
different roles that the state assumes when it makes the payments. In
cases
of
child support grants,
the
state assumes the role of
a
caregiver
as
enjoined by the
Constitution. When it pays compensation for loss of support through
the RAF it steps into the shoes of the wrongdoer.
It is irrelevant
that the money is paid by two state
organs
because its
objectives are completely different and the
state,
when it makes the
payment does
so
to
fulfil a myriad of obligations. Thus the fact that child support
grants, foster child grants and damages from the RAF are paid
from
National Treasury is of no moment.
[58]
Like foster child grants, child support grants
are
not predicated on
the death of a parent The fact that the
state
assumed
responsibility for the support of the children after the death of the
breadwinner should not have been held lo
be
a
determining factor
on whether the caregiver qualified for tf1e chiId support grontor
nor.
[59]
The purpose of the RAF is to give the greatest possible protection to
clalmants
.
[27]
A
deduction
of either foster child or child support grants would undermine that
purpose. A reading of the RAF Act suggests that those
grants should
not be deductible. The RAF Act expressly provides that
[28]
double
compensation for persons who are entitled to claim under the
Compensation for Occupational Injuries and Disease Act
[29]
should be
deducted from compensation by the RAF but there Is no equivalent
reference lo social grants.
[60]
I conclude that the outcome in Timis was incorrect. Ch/Id support
grants are for
the reasons stated above on the
same
footing
with foster child grants and should not be taken into account when an
award of damages for loss of support is made."
[7]
Defendant
[18]
In
addition to the Timis judgment, the defendant's counsel referred to
the Supreme Court of Appeal decision in the matter of
RAF
v Lechner
[8]
.
[19]
With regard to the Timis judgment, her argument is similar to the
passage that I have quoted
above, which , after consideration, the
Constitutional Court has ruled that the reasoning was not
sustainable, efectively overuling
this SCA decision.
[20]
The argument and
reliance on the Lechner judgment is that this matter addresses the
same issue as the one before me, and as such,
it is relevant and
binding.
[21]
Counsel also sought to distinguish the
issues in the Lechner and the Constitutional Court judgments on the
basis that the latter
deals with foster care grants whereas the
Mavundla J jugment dealt with disability grants. The Lechner judgment
dealt with benefits
paid from insurance.
She
referred to paragraphs 12 and 14 of the Lechner judgment which reads
as f
ollows:
[12]
The approach to the deductibility of benefits has been restated on
several occasions in this
court and can now be considered settled
Benefits resulting from the damage causing event are generally
deducted. Collateral benefits
such as those deriving from private
Insurance contracts or the benevolence of third parties
are
not. There is
no clear jurisprudential basis
for
deciding what
benefits are collateral; the Inquiry mainly Involves considerations
of public policy and equity. In this regard
a
court will
weigh two conflicting considerations. the plaintiff should not
receive double compensation and the wrongdoer or his insurer
should
not be able to avoid the full extent of his liability. What
a
court
considers just and equitable will inevitably depend on the
circumstances of each case.
1
[14]
Although
a
similar case
to Hodgson has not arisen in South Africa, this court in Bane v
D'Ambrosini
5
appears to /lave
accepted, at least implicitly, that benefits from
social
insurance or
national health schemes similar to those in
a
European
context' would be deductible in this country. This follows from the
fact that Hurt AJA distinguished such schemes from
privately run
medical schemes regulated by the
Medical
Schemes Act 131 of 1998
in this
country.
6
In two cases, South African courts had to consider the deductibility
of 'social-security benefits' received in foreign countries.
[22]
On how much according to her should be
deducted in the matter before me, counsel for the defendant conceded
that there was no readily
available answer because the RAF has not
done calculations. She however referred to the report of an
Industrial Psychologist wherein
it was stated that Mokoena was
receiving Disability Grant in an amount of R1 700.00 per month from
February 2016. She then suggested
that I should calculate the amount
to be deducted from this date to date of trial. On her calculations,
the amount to be deducted
would be R66 300 00. She was however not
certain when he was last paid and challenged the plaintiff's counsel
to come up with the
information.
Discussion
[23]
As I was preparing this judgment I came
across the judgment of Muller J in the matter of
Kapa
v RAF
[9]
at the Polokwane High Court In which he disagreed with Mavundala J in
the matter that I have referred to above. He stated the following:
[6]
In Coughlan NO v Road Accident
Fund
[10]
the Constitutional Court did not consider what the effect is on
a
claim for loss of earnings if the
plaintiff is the recipient
of
a
disability grant from the state. It held, with reference to the
nature and purpose of foster care grants, that those grants which
arose from the constitutional obligation of the state
to
provide for children in need of care
are different from compensation. It was held that foster care grants
are not paid to the children
and is furthermore not predicated on the
death of
a
parent.
[11]
Interpose momentarily, to
point out that, In my respectful view, the judgment Is not authority
to hold that disability grants should
be regarded as similar to
foster care grants. Different considerations apply to disability
grants.
[7]
However, to determine whether payment of a disability grant amounts
to double compensation,
a similar approach adopted by the
Constitutional Court In Coughlan NO will be followed:
[12]
(a)
What
fs
the constitutional obligation
of
the state in terms of section 27 of
the Constitution;
(b)
The nature and purpose of
disability grants vis-a-vis that of compensation for loss of
earnings;
(c)
Whether there is any
causal link between a disability grant and compensation for loss of
earnings.
[8]
It is acknowledged in section 27(1){c) of the Constitution that the
state has an obligation
to make social security available to everyone
and if they are unable to support themselves and their dependents
appropriate social
assistance must be provided. The Constitution
Is
not prescriptive as
how the state should make grants available within the available
recourses. It was left lo Parliament to decide.
The
Social
Assistance Act 13 of 2004
provides for the
provision and administration of social assistance and the
qualification requirements for such assistance
.[13]
The eligibility of a person to apply for a disability grant Is set
out In
section
9
of
the
Social
Assistance Act
which
reads as follows:
“
A
person is subject
to
section 5
eligible far
a
disability grant if
he or she
-
(a)...
(b) Is owing to a physical or
mental disability unfit to obtain by virtue of any service,
employment or profession the means needed
to enable him or her to
provide for his or her maintenance."
[9]
The RAF Act is silent on
whether
a
disability
grant, in particular, should be included or excluded from
compensation.
[14]
It does not follow, merely,
from such silence that social grants which are available In terms of
the
Social Assistance Act
should
simply to be
Ignored, even if it leads to double compensation.
[15]
[10]
The nature and purpose of a.
disability grant is clearly intended to give financial assistance to
anyone who as a result of physical
or mental disability irrespective
of the reason Is unfit to obtain the means to provide for his/her
maintenance I do not understand
this to mean that a person is only
eligible if he/she Is totally disabled. All that Is required is that
the disability should be
of such a degree that it renders a person
unable to maintain him/herself by means of employment. Put
differently, a person who
Is meaningfully employed but his/her
remuneration as a result of his/her disability is so meagre that
he/she is unable to maintain
himself/herself should qualify.
[11]
In casu the disability grant Is paid to the plaintiff as a direct
result of her disability which
was caused by the injuries she
sustained in the motor vehicle collision. The plaintiff is regarded
as unemployable and damages
are claimed for loss of earnings due to
injuries sustained the result of which is a total loss of lncome.
[16]
The
physical Injuries which she sustained rendered her totally unfit for
employment and unable to maintain herself It comes as no
surprise
that she qualified for
a
disability grant.
[12]
The grant Is not paid to the plaintiff
a
result of the
generosity, benevolence or charily
of
the state, but
as
financial assistance
by the state due to the injuries sustained which caused
a
loss
of income , but
also
in
terms of the constitutional obligation to render social security to
everyone in need of such assistance. That, is of course,
what her
claim for compensation is all about.
[17]
Thus,
there is very close causal link between the reason for the disability
grant and the claim for loss at income.
[18]
There is
no
doubt
in my mind that the payment of the disability grant leads to double
compensation.
[13]
In addition, it must be taken Into consideration that the public
carries a heavy financial burden
towards the state. The ongoing
financial woes
of
the RAF is notorious
and well known The funds utilised by the RAF and the funds allocated
for social grants originates from public
by means fuel levies on the
one side, and taxes, on the other. Pub/le policy, fairness and
justice demands that overcompensating
motor vehicle accident victims
from public funds should be avoided.[1fil Fairness and Justice
demands that the disability grant
be deducted from the award to be
made.
[14]
Finally, I respectfully disagree, for the reasons set out above, with
the judgment in Moropane
[10]
v RAF which held that a disability grant paid by the state should be
Ignored and not be deducted.
[15]
The RAF
is
successful with
regard
to
the
separated issue and is entitled to its costs.
[24]
I do not think that
the criticism or disagreement expressed by Muller J with Mavundla J's
judgment Is justified because he (Mavundla)
relied on the one
execption in the RAF Act that the Constitutional Court pointed out as
justifying a deduction from claimant's
award on the basis of double
compensation. The Constitutional Court was alive to the fact that the
RAF was silent on whether foster
grants should be deducted or not.
[25]
It is common cause that foster care grants, old age pensions,
disability grants and other social
assistance grants in South Africa
are administered in terms of the
Social Assistance Act as
indicated
in the judgment of Masipa J in the Johannes Mabunda matter. The
Constitutional Court would have addressed this issue
if it felt that
it required separate mentioning. In my view,
the purpose of the enabling
Act and the constitutional Imperatives are the same.
[26]
In my view, Muller J had before him
sufficient evidence to make factual assessment regarding the causal
link between the disability
grant and the accident. However, even so,
as Masipa J has pointed out, there are procedures for terminating
social grants, and
the courts have no jurisdiction in that regard
because these are administrative issues and courts cannot sit as
tribunals of first
instance. As I have pointed out above, the
defendant may take steps, if it so wish, to deal with the matter
administratively to
cancel or recoup the money that has already been
dispensed, which is unknown to me because there is no such evidence.
[27]
Similarly, the defendant's reliance on
the Lechner judgment was not clearly articulated save for the
argument that if the accident
is removed, Mokoena would not have
received the disability grant.
[28]
The issue before court in the Lechner
matter was the correct characterisation of the benefit that the
claimant received from a foreign
insurance company, and it was found
to be one that would not constitute double compensation. The SCA
decided as follows:
[19]
I accept that the premiums paid by Ms Lechner bore no direct
relationship to the risk insured.
In this sense the scheme to which
she belonged differed from the usual private medical schemes But
ii
Is beyond dispute
that she enjoyed benefits as
a
voluntary member at
the time of her accident. The fact that she later at times became a
compulsory member after her accident, which
was forced upon her
because of the injuries she sustained in the accident, cannot in my
view change the situation. Crucially, as
I have mentioned, she
received her benefits in return for her contributions, Had she ceased
paying contributions, her benefits
would also have
ceased,
or later been
suspended. In my view this is sufficient
to
render the benefits
received from the KKH res inter alias acta as far
as
the Fund Is
concerned.
[20]
Moreover, as Mr Potgieter accepted on behalf of the Fund. there
is
no question of Ms
Lechner receiving double compensation by virtue of the German
legislation referred to earlier. Instead
he
submitted that the
ultimate question in this matter is whether the Ms Lachner's expenses
are
to
be paid for by the South African or German taxpayer. He further
submitted that It
would be contrary to public policy for this country's taxpayers to
reimburse the KKH for expenses Incurred in
the execution of
its
statutory mandate
[21]
In my view, Mr. Potgieter misstated the position By virtue
of
the provisions of
the 5GB referred to In para 4 above, Ms Lechner is obliged to repay
the KKH.
So
she
will not receive more than she
was
entitled to receive.
The South African taxpayers will pay no
more than they would have
had
to
pay
because
Ms
Lechner
is obliged by the German legislation
to
repay the KKH
-
it
is
not
as
though the Fund has
to
pay
the KKH as well
as
Ms
Lechner. The KKH
(not the German fiscus), which is out of pocket, will be reimbursed·
and the KKH needs the reimbursement
in order
to
continue to fund
claims by Its members.
13
This outcome is, in my view, neither unfair nor troublesome from a
public policy perspective. The appeal must therefore fail.
[29]
Applying this to the
present matter, the defendant's argument appears to be that the
disability grant is deductable because Mokoena
wilt not repay
(refund) the Social Security Assistance Agency the amounts that he
has already received which then will be a double
compensation for
him.
[30]
Does this mean that the c
ourts will act as collection agents
for the Social Security Assistance Agency (SASSA)?. If that is so.
then the defendant will have
to do better In its presentation for a
deduction of RAF awards to cater for this kind of situations. I have
already highlighted
the deficiencies In the present matter such as
the calculations relating to the amount to be deducted. The defendant
would fail
on the facts even if I am wrong on the analysis of the
relevant authorities.
Costs
[31]
If this issue had been properly
ventilated in the pleadings, I am certain that both parties would
have been better prepared and
that it would not have proceeded to
trial. The manner in which it was raised, argued and persisted with
even in the face of the
judgment of Mavundla J, which is binding on
this division until it is set aside clearly shows lack of preparation
and understanding
of the stare decisis principles on the part of the
defendant's counsel and her legal team. There was no attempt to
distinguish
or argue for a deviation from Mavundla J's judgment
except as I have indicated. A concession was ultimately made, after a
long
exchange where I was almost accused of stifling the defendant's
submissions.
[32]
The trial was allocated for two (2)
hours only and only on the issues of contingencies and general
damages. No argument was advanced
with regard to the former and only
a moment's mention of the latter to the effect that an amount of
between R1 200 00.00 and R1
250 000.00 was reasonable. The basis
thereof was because in a 'similar'
[11]
matter where there was an
apportionment
of 70-30% general damages were awarded on that amount.
[34]
I initially thought of calling on the
legal representatives of the defendant to give reasons why they
should be entitled to fees
for the second day of trial when the
matter was allocated for 2 hours. The counsel argued that the 2 hours
were wasted by the plaintiff's
counsel when he addressed the court on
Issues that were common cause and that she only got to address long
after the expiry of
the allocated time.
[35]
This submission is disingenous because
as I have already stated above, the defendant raised an issue that
was not anticipated. It
required proper ventilation and quick
research of the authorities.
[36]
I abandoned the idea of seeking an
explanation from the representatives of the defendant because it was
clear and it is common cause
that instructions from RAF rarely come
In time. leaving representatives 1n a state of uncertainty and often
embarrassment.
[37]
Counsel for the plaintiff referred me to
various authorities on the mandate of legal practitioners to settle
matters where there
are no real disputes. Whilst I agree with this
submission, it is problematic because these kind of claims often
involve millions
of rands per claim, which if practitioners were
allowed to settle without Instructions would have serious negative
consequences
not only for the RAF, but for the entire country's
economy.
[38]
On the other hand, plaintiffs should not
be exposed to the risk of incurring unnecessary costs whilst the
matter is standing down
for instructions or when the defendant's
representatives drag out the proceedings by raising disputes that
have not been properly
ventilated in the pleadings.
[39]
A cost order on an attorney and client
scale is not an easy one to make, moreso when the money comes from
the public purse. However,
it is the only way to ensure that the
defendant gets actively involved in the litigation because as I have
stated a million times,
the RAF instructions rarely come in time.
Cases are settled at the doorstep of court rooms. If it is the
competency of the legal
practitioners that resulted in the situation
where matters are not properly ventilated in pleadings, the defendant
must take steps
to ensure that its cases are presented in an
effective and efficient manner.
[40]
In the matter of
S
v Mafua and Others
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W).
the appeal court, per C.J Claassen J discussed amonst others the
question of effective legal representation. It is the litigant's
rights to effective legal representation that are at stake as it
appears from an extract from the following passages in this judgment.
[23]
In para [14} of his judgement In
S
v
Halgryn
2002 2 SACR 211
(SCA), Harms JA illuminated
the constitutional right to legal representation as follows:
"The constitutional right
to counsel must be real and
not
Illusory and an
accused has, in principle, the right
to
a proper effective
or competent defence.
...
Whether a defence
was so
incompetent
that it made the trial unfair is once again
a
factual question
that does not depend
on
the degree of ex
post facto dissatisfaction of the litigant. Convicted persons are
seldom satisfied with the performance of their
defence counsel. The
assessment must be objective, usually, if not invariably, without the
benefit of hind sight
.
The Court must place
himself in the shoes of defence counsel, bearing in mind that the
prime responsibility in conducting the
case
Is that of counsel
who has to make decisions, often with little time to reflect
...
The fa/lure to take
certain basic steps such as failing to consult, stands on a different
footing from the failure to cross-examine
effectively or the decision
to call or
not to
call a particular witness. It is relatively
easy
to determine whether
the right to counsel was rendered nugatory in the former type
of
case
but in the
latter instance, where counsel's discretion is Involved, the
scope
for complaint is
limited."
[24]
The idea of being represented by
a legal adviser cannot simply mean to have somebody stand next to one
to speak on one's behalf
Effective legal representation entails that
the legal adviser acts in the client's best interests, saying
everything that Is needed
to be said in the client's favour and
calling such evidence as was Justified by the circumstances In order
to put the best case
possible before the court in the client's
defence.
6
Implicit in the rights entrenched in section 35(3)(1) of the
Constitution is the concept that legal assistance to the accused
person must be real, proper and designed to protect the interests of
the accused The legal representative has an obligation to conduct
the
case in the best interest of the client while still ensuring that the
Inherent duty towards justice is maintained. In order
to be able to
conduct a trial in such manner the legal representative has to
acquaint him· or herself with the charges,
the facts with
which the accused is confronted and more importantly, the version of
the accused.
7
The principles just set out accord with the concept of the right to
effective legal representation in an open and democratic society.
In
similar vein are the remarks of Justice Blackmun in
Burger
v Kemp
483 US 776
(1987) at 800:
"The duty of loyalty to a
client Is 'perhaps the most basic' responsibility of counsel and 'it
is difficult to measure the
precise effect on the defence of
representation corrupted by conflicting interests'".
[41]
The issue that was raised whilst plaintiffs counsel was on his feet
should have been properly
Investigated. The defendant was a
respondent in the Constitutional matter of Coughlan N.O and knows or
should know if there are
any other gaps arising from that judgment
that need to be closed. The manner in which the issue was raised by
its counsel indicates
that the defendant does not take lessons from
court judgments. If it did, the issues would have been properly
investigated and
the starting point should have been this judgment,
which clearly counsel was not even aware of.
[42]
It is for all these reasons that I
decided to make an order of costs on an attorney and client scale
against the defendant.
Order;
[43]
Under the circumstances, I make an order
in terms of the draft marked 'XY' which is incorporated into this
judgment.
TAN
MAKHUVELE J
Judge
of the High Court
APPEARANCES:
PLAINTIFF:
ADVOCATE CH VAN BERGEN
Instructed
by·
Munro Flowers & Vermaak
C/O
Prinsloo -Van der Linde Attorneys
Lynnwood
PRETORIA
DEFENDANT:
ADVOCATE
HL KELAOTSWE
Instructed
by:
Diale Mogashoa Attorneys Inc
Menlyn
PRETORIA
Heard
on:
17 May 2019.
Judgment
delivered on: 04 July 2019.
[1]
(093/2017) zasca 52 (29 March 2018)
[2]
Corbett
and Buchanan (Service 4, 1 99 5) C4-1
[3]
Case No.29668/05, judgment delivered on 26 March 2008
[4]
Unreported, Case no. 39680/2012, judgment delivered on 27 August
2018
[5]
2015 ZACC 10
[6]
(29/09)[2010] ZASCA 30 (26 March 2010)
[7]
footnotes and references were omitted.
[8]
(711/2010)
[2011] ZASCA 240
(1 December 2011).
[9]
Kapa v RAF (1414/2013) [2018) ZALMPPHC 67 (7 December 2018)
Footnotes have been omitted.
[10]
There has been a hand written correction on Mavundla J's judgment of
the name to read "Moroane"
[11]
I was handed a copy of the judgment In the matter of George Tlka
Bogosi v Road Accident Fund (North West) Case No. RAF 4/2015