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[2019] ZAGPPHC 332
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Sekesai v Road Accident Fund (95892/2015) [2019] ZAGPPHC 332 (25 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
No
(2)
OF
INTEREST TO OTHER JUDGES: No
(3)
REVISED:
Yes
CASE
NUMBER: 95892/2015
25/7/2019
In
the matter between:
CHIVANGA
REGINAH SEKESAI
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
Coram:
A Vorster AJ
Heard:
24 July 2019
Delivered:
25 July 2019
ORDER
1.
The
matter is postponed sine die.
2.
The
defendant is ordered and directed to, within 2 (two) months of the
granting of this order, investigate the plaintiff's claim,
both in
respect of merits & quantum, by the appointment of suitably
qualified experts and assessors.
3.
The
Chief Executive Officer of the Road Accident Fund shall oversee
implementation of the aforesaid injunction, and the injunction
is to
operate against the Chief Executive Officer in his / her capacity as
accounting officer and head of the administration of
the defendant,
personally.
4.
In
the event of non-compliance with the terms of the injunction by the
defendant, the Chief Executive Officer will be deemed to
have caused
obstruction of the execution of the injunction in a broad sense, and
the defendant's failure will be deemed to constitute
disobedience
with the injunction by the Chief Executive Officer, attracting an
action for contempt of court in his/ her personal
capacity.
5.
The
plaintiff's attorneys are ordered and directed to cause a copy of
this judgment & order to be served on the Chief Executive
Officer
of the Road Accident Fund in the manner prescribed in 4(1)(a)(i) of
the Uniform Rules of Court.
6.
This
matter may not be enrolled until such time as effect had been given
to the terms of this order.
7.
The
issue of costs are reserved, save for the costs of the plaintiff's
Counsel, which costs shall be paid by the defendant.
JUDGMENT
A
Vorster AJ
(1)
This
third party matter was enrolled for hearing on 13 June 2019. For some
or other reason, which is not apparent from the documents
filed of
record, the matter was postponed to 24 July 2019, on the recess roll.
This is a roll which was established in this Division
to cater for
matters which cannot be dealt with on the ordinary trial roll, due to
the congested state of that roll. The recess
roll is usually presided
over by acting judges, pro bona.
(2)
Judges
dealing with matters on the recess roll are in the fortunate position
that they receive the court files way in advance. This
is exactly
what happened in this matter. I received the file a week before the
matter was enrolled for hearing, and was therefore
in a position to
study the content of the court file before the date of the hearing.
(3)
The
first thing that struck me was the value of the claim which, before
application of the RAF Cap, was in excess of R7'000'000.
After the
Cap had been applied the value of the claim was in excess of
R4'600'00.00. These figures appeared from an actuarial report
filed
by the plaintiff's attorneys. This calculation was based on the
content of various medicolegal reports filed by the plaintiff's
attorneys. The scope of expertise, and nature of investigations, of
these experts are a matter of record.
(4)
I
found it astonishing that the defendant did not file a single expert
report. Further to the above it also became apparent, with
reference
to the trial bundle, that the defendant took absolutely no steps to
verify the collateral facts upon which the plaintiff's
expert reports
were premised.
(5)
From
a simple reading of the expert reports, and the plaintiff's
documentary evidence, it is glaringly apparent that the facts which
the plaintiff presented to the experts were contradicted by the
documentary evidence filed of record. There are numerous such
examples but only a few will suffice. In the Officer's Accident
Report the plaintiff recorded her residential address as Glenwood
Road, Lynwood, Pretoria. In the Physiotherapy Referral Card the
plaintiff recorded her address as Bezuidenhout valley, Johannesburg.
According to the information given to the industrial psychologist the
plaintiff reported that after the accident she was taken
to a hotel
where she was residing at the time. According to the experts, after
the accident, the plaintiff returned to her home
in Zimbabwe, and in
some of the expert reports the plaintiff's address is indicated as
being 4 Wallis Road, Mandora, Zimbabwe.
I find it rather curious that
the plaintiff will attend at Hillbrow Hospital, when the accident
occurred in Pretoria, and at the
time plaintiff resided in Pretoria.
In the very same referral card the plaintiff recorded her occupation
as being a student, yet
according to the expert reports, at the time
the plaintiff was gainfully employed.
(6)
All
the experts considered the plaintiff's employment prospects from a
South African labour market perspective. From the collateral
information recorded by the experts, and the documentary evidence
filed of record, the plaintiff was primarily employed in Zimbabwe.
There was no collateral information provided indicating that the
plaintiff was employed in South Africa. Surely contingencies which
would be relevant in South Africa, would not as a matter of course be
relevant in Zimbabwe.
(7)
There
was no statutory affidavit in the court file. Except for the
Officer's Accident Report there is not a single statement under
oath
in which the plaintiff commits herself to the version of events
pleaded in the particulars of claim. There is therefore no
evidence
presented by the plaintiff herself, or for that matter by anyone
else, of how the accident occurred.
(8)
On
the day of the hearing the respective parties' Counsel approached me
and indicated that they intended settling the matter. I
was informed
that the proposed settlement amount was in excess of Rl'000'000.00. I
informed Counsel that I was not prepared to
accept any settlement,
having regard to the court file which was so vacuous in obvious
respects. I enquired from the defendant's
Counsel as to the reason
why the defendant did not file any expert reports. I also enquired as
to whether the defendant's attorneys
objectively verified the
collateral information upon which the plaintiff's experts relied. The
Counsel could not provide me with
a satisfactory answer.
(9)
I
find it completely unacceptable that the defendant should deal with
public funds, and having regard to the obligations imposed
upon it to
investigate claims, in such a reckless and irresponsible manner. I
find it inconceivable that the defendant will propose
to settle this
matter without having independently assessed the cogency of any of
the plaintiff's evidence, or the weight to be
attached to the
plaintiff's' experts' opinions.
(10)
I am aware of the judgement of the
supreme Court of Appeal in
Fischer
and Another v Ramahlele and Others
[2014]
ZASCA 88
;
2014 (4) SA 614
(SCA).
(11)
I do not believe that I am constrained
by that judgement to only consider the issues raised by the
respective parties in an instance
where it is clear that an organ of
state is dealing with public funds in a reckless and irresponsible
manner. I must make it clear
that I am not casting aspersions on
either the plaintiff, her attorneys, or the experts. I do believe
that by the very nature of
the defendant's obligations, and the
nature of the adversarial system, there is a duty on the defendant to
independently investigate
and assess the plaintiff's claim,
especially having regard to the substantial quantum of the claim.
(12)
I am of the considered view that
oversight in the implementation of the order I propose to make is
required, and I therefore will
make an order that the Chief Executive
Officer of the Road Accident Fund ensure that this claim is properly
investigated.
(13)
I therefore make the following order:
(i)
The
matter is postponed sine die.
(ii)
The
defendant is ordered and directed to, within 2 (two) months of the
granting of this order, investigate the plaintiff's claim,
both in
respect of merits & quantum, by the appointment of suitably
qualified experts and assessors.
(iii)
The
Chief Executive Officer of the Road Accident Fund shall oversee
implementation of the aforesaid injunction, and the injunction
is to
operate against the Chief Executive Officer in his / her capacity as
accounting officer and head of the administration of
the defendant,
personally.
(iv)
In the event of non-compliance with the
terms of the injunction by the defendant, the Chief Executive Officer
will be deemed to
have caused obstruction of the execution of the
injunction in a broad sense, and the defendant’s failure will
be deemed to
constitute disobedience with the injunction by the Chief
Executive Officer, attracting an action for contempt of court in his/
her personal capacity.
(v)
The plaintiff's attorneys are ordered
and directed to cause a copy of this judgment & order to be
served on the Chief Executive
Officer of the Road Accident Fund in
the manner prescribed in 4(1)(a)(i) of the Uniform Rules of Court.
(vi)
This matter may not be enrolled until
such time as effect had been given to the terms of this order.
(vii)
The issue of costs are reserved, save
for the costs of the plaintiff's Counsel, which costs shall be paid
by the defendant.
A. VORSTER AJ
Acting Judge of the High Court
Date of hearing:
24 July 2019
Date
of judgment:
25 July
2019
Counsel for plaintiff:
NETSHIOZWI
TE
Instructed
by:
MT MAKWELA ATTORNEYS
Counsel
for defendant:
MAPHELELA LB
Instructed
by:
BRIAN RAMABOA
INCORPORATED