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[2019] ZAFSHC 29
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Pretorius v Road Accident Fund (4743/2018) [2019] ZAFSHC 29 (18 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
4743/2018
In
the matter between:
JOHANNES
LODEWIKUS
PRETORIUS PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
BY
:
I VAN
RHYN AJ
HEARD
ON: 15 MARCH 2019
DELIVERED:
18 APRIL 2019
INTRODUCTION.
[
1]
This matter concerns an opposed exception in terms of the provisions
of Rule 23 of the Uniform Rules of Court noted by the plaintiff
against the defendant’s plea.
[2]
During July 2017 the plaintiff was involved in a motor vehicle
accident in Bloemfontein. The plaintiff suffered injuries to
his legs
when the motorcycle that he was driving collided with the motor
vehicle driven by the insured driver. The motorcycle caught
fire and
caused burns to the plaintiff’s legs. In September 2018 the
plaintiff instituted action against the defendant (‘the
Fund’)
for damages in terms of the provisions of the Road Accident Fund Act,
Act 56 of 1996 (‘the Act’) as a
result of bodily injuries
he sustained in the amount of R 1 204 695.63, more
particularly for past and future medical
and hospital expenses as
well as general damages.
[3]
The defendant’s plea is dated 23 November 2018. The plaintiff
served a Notice in terms of the provisions of Rule 23(1)
on the
defendant’s attorney on 26 November 2018 affording the
defendant the opportunity of removing the cause of complaint.
The
defendant failed to respond to the notice where after the plaintiff
filed his exception on 17January 2019.
GROUNDS
OF THE EXCEPTION.
[4]
The plaintiff’s exception is directed at paragraph 7.2 of the
defendant’s plea on the basis that the contents of
the
aforesaid paragraph renders the plea vague and embarrassing. In
paragraph 7 of the plaintiff’s particulars of claim it
is
pleaded that a serious injury assessment report (RAF 4) as well as
the medico-legal report completed by Prof J F Jooste,
a plastic
surgeon, which sets out in detail the nature and degree of
plaintiff’s injuries, are affixed to the particulars
of claim
as annexures “A” and “B”.
[5]
The defendant’s plea to paragraph 7 of the particulars of claim
reads as follows:
“
7.1 The
Defendant denies the nature and degree of Plaintiff’s injuries
and accordingly the Plaintiff is put to the proof thereof.
7.2 Defendant will
proceed in terms of Regulation 3(3)(d)(i) of 2008 read together with
Regulation 3(3)(dA) of 2013, of the Road
Accident Fund Amendment
Regulations.”
[6]
The basis of the plaintiff’s exception is formulated as
follows: “
On a proper construction of Regulation 3(3)(d)(i)
read together with Regulation 3(3)(dA) it is unclear whether the
Defendant is
rejecting the serious injury assessment report, in which
event the Defendant has not fully complied with Regulation 3(3)(d)(i)
as no reasons for the rejection have been provided, and/or whether
the Defendant is directing that the Plaintiff submit himself
to a
further assessment”
THE
PRINCIPLES RELEVANT TO THE DETERMINATION OF AN EXCEPTION.
[7]
In
analysing the purpose of pleadings Kumleben JA et Nienaber JA held in
Imprefed
(Pty) Ltd v National Transport Commission
[1]
as follows: “
At
the outset it need hardly be stressed that: 'The whole purpose of
pleadings is to bring clearly to the notice of the Court and
the
parties to an action the issues upon which reliance is to be placed.'
(Durbach v Fairway Hotel Ltd
1949 (3) SA 1081
(SR) at 1082.)
This
fundamental principle is similarly stressed in Odgers' Principles of
Pleading and Practice in Civil Actions in the High Court
of Justice
22nd ed at 113
:
'The
object of pleading is to ascertain definitely what is the question at
issue between the parties; and this object can only be
attained when
each party states his case with precision.
'
The
degree of precision obviously depends on the circumstances of each
case
.”
[2]
[
8]
To
achieve this goal it has been stated that pleadings must be lucid,
logical and intelligible
[3]
. A
litigant must plead his cause of action or defence with at least such
clarity and precision as is reasonably necessary to alert
his
opponent to the case he has to meet. A litigant who fails to do so
may not thereafter advance a contention of law or fact if
its
determination may depend on evidence which his opponent has failed to
place before the court because he was not sufficiently
alerted to its
relevance.
[9]
In this matter the complaint is directed at the plea of the
defendant. It is, however, trite that defective pleadings of a
plaintiff and that of a defendant are treated on an equal footing.
[4]
The clarity and precision required of a pleading are explained in
Jowell v
Bramwell-Jones and Others
[5]
:
“…
(T)he
plaintiff is required to furnish an outline of its case. That does
not mean that the defendant is entitled to a framework
like a
cross-word puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough
edges
not obvious until actually explored by evidence. Provided the
defendant is given a clear idea of the material facts which
are
necessary to make the cause of action intelligible, the plaintiff
will have satisfied the requirements.”
[6]
[10]
An exception that a pleading is vague and embarrassing strikes at the
heart of the claim or, as in this case the defence and
at
the formulation of the cause of action and its legal validity. It is
not directed at a particular paragraph within a cause of
action but
at the cause of action as a whole, which must be demonstrated to be
vague and embarrassing. As was stated in
Jowell
v Bramwell-Jones
at
905E-H: “
I
must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent
that
the defendant does not know the claim he has to meet…”
[11]
The approach to be adopted and applicable considerations were
described as follows in
Trope
v South African Reserve Bank
[7]
at
221A-E :
“
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced (Quinlan v MacGregor
1960 (4) SA 383
(D) at 393E-H). As to whether there is prejudice, the ability of the
excipient to produce an exception-proof plea is not the only,
nor
indeed the most important, test - see the remarks of Conradie J in
Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at
298G-H. If that were the only test, the object of pleadings to enable
parties to come to trial prepared to meet each other's
case and not
be taken by surprise may well be defeated.
Thus it may be possible
to plead to particulars of claim which can be read in any one of a
number of ways by simply denying the
allegations made; likewise to a
pleading which leaves one guessing as to its actual meaning. Yet
there can be no doubt that such
a pleading is excipiable as being
vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider
1952
(1) SA 150
(SWA) at 152F-G and the authorities there cited.
It
follows that averments in the pleading which are contradictory and
which are not pleaded in the alternative are patently vague
and
embarrassing; one can but be left guessing as to the actual meaning
(if any) conveyed by the pleading.”
[12]
Some particularity is therefore required in pleadings and it follows
that where averments in pleadings are vague and embarrassing,
alternatively lacks averments necessary to sustain a defence, a party
is entitled to deliver an exception to the pleading. In
Trope
v South African Reserve Bank
the court noted the following in respect of the degree of
particularity required in pleadings: “
Rule
18(4) of the Uniform Rules of Court provides that every pleading
shall contain 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. It is, of course, a basic principle that
particulars of claim should be so phrased that a defendant
may
reasonably and fairly be required to plead thereto. This must be seen
against the background of the further requirement that
the object of
pleadings is to enable each side to come to trial prepared to meet
the case of the other and not be taken by surprise.
Pleadings must
therefore be lucid and logical and in an intelligible form; the cause
of action or defence must appear clearly from
the factual allegations
made (Harms Civil Procedure in the Supreme Court at 263-4). At 264
the learned author suggests that, as
a general proposition, it may be
assumed that, since the abolition of further particulars, and the
fact that non-compliance with
the provisions of Rule 18 now (in terms
of Rule 18(12)) amounts to an irregular step, a greater degree of
particularity of pleadings
is required. No doubt, the absence of the
opportunity to clarify an ambiguity or cure an apparent
inconsistency, by way of further
particulars, may encourage greater
particularity in the initial pleading. The ultimate test, however,
must in my view still be
whether the pleading complies with the
general rule enunciated in Rule 18(4) and the principles laid down in
our existing case
law.”
[8]
THE
SERIOUS INJURY ASSESSMENT BY THE DEFENDANT.
[13]
In terms of the Amendment Act in 2005, a limitation on the Fund’s
liability for general damages was introduced as a proviso
in s 17(1)
that ‘the obligation of the Fund to compensate a third party
for non-pecuniary loss shall be limited to compensation
for serious
injury as contemplated in subsection (1A) . . .’ The assessment
of whether or not a particular injury meets the
threshold requirement
of ‘serious’ must be carried out by someone registered as
a medical practitioner under the Health
Professions Act 56 of 1974
and on the basis of a ‘prescribed method’. The Minister
of Transport promulgated the Road
Accident Fund Regulations of 2008
through publication in the Government Gazette of 21 July 2009.
Regulation 3 prescribes the method
contemplated in s 17(1A) for
the determination of 'serious injury' and provides that a third
party who wishes to claim
general damages shall submit himself or
herself to an assessment by a medical practitioner to obtain a
serious injury assessment
report.
[14]
In terms of Regulation 3(3)(c) the Fund is only liable for general
damages if a claim is supported by a serious injury assessment
report
and the Fund is satisfied that the injury has been correctly assessed
as serious in terms of the method provided for in
these Regulations.
If the Fund is not so satisfied,
Section 3(3)
(d) of the Regulations provides that:
"(d)
If the Fund or an agent is not satisfied that the injury has been
correctly
assessed,
the fund or a
n
agent must;
(i)
reject the serious injury
assessment report and furnish the third party with reasons for the
rejection, or
(ii)
direct that the party submit
himself or herself, at the cost of the Fund or an agent, to a further
assessment to ascertain whether
the injury is serious, in terms of
the method set out in these Regulations, by a medical practitioner
designated by the Fund or
an agent.
(d
A) The Fund or an agent must, within 90 days from the date on which
the serious injury assessment report was sent by registered
post or
delivered by hand to the Fund or to the agent who is in terms of
section 8 must handle the claim, accept or reject the
serious injury
report or direct that the third party submit himself or herself to a
further assessment.
(e)
The Fund or agent must either accept the further assessment or
dispute the further assessment in the manner provided in these
Regulations".
[15]
The legislative framework thus affords the Fund with three options
available in the event it is not satisfied with the assessment
of
injury of the claimant being;
a)
to accept the serious injury report, or,
b)
reject the report, or
c)
direct that the party submit to a further assessment.
[9]
[16]
Prior to the further promulgation of the new regulation under (dA)
quoted above, t
he
Regulations, however, did not indicate what the consequences would be
if the Fund failed to comply with the peremptory 90 day
period. In
Road
Accident Fund v Duma and Three Similar Cases
[10]
further possible scenarios were considered and explained as follows:
“
As
to what then happens, regulation 3(4) provides that, if the third
party disputes the Fund’s rejection of the RAF 4 form
(under
regulation 3(3)(d)(i)) – or if either the third party or the
Fund wishes to challenge the assessment by the medical
practitioner
designated by the Fund (under regulation 3(3)(d)(ii)) – the
aggrieved party must formally declare a dispute
by lodging a
prescribed dispute resolution form (RAF 5) with the registrar of the
Health Professions Council within 90 days of
being informed of the
rejection or the impugned assessment. Regulation 3(5)(a) then goes on
to say that if this is not done, the
rejection of the RAF 4 form or
the assessment by the Fund’s designated medical practitioner,
as the case may be, shall become
final and binding.
[10]
If a dispute is declared, regulation 3(8) provides for it to be
determined by an appeal tribunal of three independent medical
practitioners with expertise in the appropriate area of medicine,
appointed by the registrar of the Health Professions Council.
In
terms of regulation 3(13) the determination by the appeal tribunal is
final and binding. A procedure by which the appeal tribunal
enquires
into the dispute is laid down in substantial detail by regulations
3(4) to 3(13). It includes the following features:
(a) Both sides may
file submissions, medical reports and opinions.
(b) The appeal
tribunal may hold a hearing for the purpose of receiving legal
argument by both sides and seek the recommendation
of a legal
practitioner in relation to the legal issues arising at the hearing.
(c) The appeal
tribunal has wide powers to gather information, including the power
to direct the third party to submit to a further
assessment by a
medical practitioner designated by the tribunal; to do its own
examination of the third party’s injury; and
to direct that
further medical reports be obtained and placed before it.”
[11]
[17]
The inaction of the Fund to reject or accept the RAF 4 form within a
reasonable period was one of the issues identified by
the Supreme
Court of Appeal in
Duma.
An amendment to the regulations
was introduced by way of Regulation 3(3)(dA) of 2013, requiring the
fund to assess the RAF 4 form
within 90 days.
SUBMISSIONS
BY THE PARTIES
[18]
In the present matter counsel for the plaintiff contended that
considering the nature of the claim being damages suffered in
respect
of injuries sustained in a motor vehicle accident, the nature and
degree of the plaintiff’s injuries are issues of
significant
importance. The defendant’s denial of the nature and degree of
the plaintiff’s injuries in paragraph 7.1
of its plea is
therefore no
per se
objectionable. However the defendant goes
further than a mere denial of the nature and degree of the injuries
sustained when, in
paragraph 7.2 it declares its intention to
“proceed in terms of” both Regulation 3(3)(d)(i) of 2008
and Regulation
3(3)(dA) of 2013. The problem caused by referring to
both regulations is that the assertion of an intention to proceed in
terms
of Regulation 3(3)(d)(i) implies that the defendant rejects the
RAF 4 report and commits to providing reasons for its rejection
thereof. In contrast, the assertion of an intention to proceed in
terms of regulation 3(3)(dA) implies that the defendant must
either:
(a)
elect to accept or reject the RAF 4 report; or
(b)
direct that the plaintiff submit himself to further assessment.
[19]
On behalf of the defendant it was argued that plaintiff failed to
aver in his particulars of claim that the RAF 4 report was
delivered
to the defendant and that more than 90 days has passed without
objection from the defendant. In answer hereto counsel
for the
plaintiff relied on the plaintiff’s averment that he has duly
complied with the provisions of s 24, read with s 19
of the Act and
in the premises the defendant is liable in terms of the provisions of
s 17 of the Act to compensate the plaintiff
in the amount claimed.
[20]
As mentioned above, the main complaint of the plaintiff, is that it
is not clear or ascertainable what the defendant intends
to convey by
pleading its intention to “proceed” in terms of both
regulations “read together” as the regulations
in
question clearly present mutually exclusive courses of action. Even
though both courses of action are made available to the
defendant,
the defendant is obliged to make an election within 90 days and to
convey its decision to the plaintiff who in turn
then has certain
options available to challenge the decision ultimately made by the
defendant. In the event of the defendant
rejecting the serious
injury assessment submitted by the plaintiff, the plaintiff cannot
proceed with his claim for general damages
in court as the court
simply has no jurisdiction to entertain the plaintiff’s claim.
The Plaintiff’s remedy is to take
the rejection on appeal in
terms of regulation 3(4).
[21]
This submission by the defendant is supported by the judgment of
Mathopo JA writing on behalf of the majority in
Mphala
v Road Accident Fund
[12]
where
it was held at [12]:
"If
the Fund is not satisfied that the injury is serious, the plaintiff
cannot continue with its claim for general damages
in court. The
court simply has no jurisdiction to entertain the claim. The
plaintiff's remedy is to take the rejection on appeal
in terms of
regulation 3(
4).
The
Fund, as an organ of state as defined in
section
239 of The Constitution,
performs
a public function in terms of legislation. Its decision in terms of
regulation 3(3)(c) and 3(3)(d), whether or not the
report correctly
assessed the claimant’s injury as "serious"
constitutes administrative action, as contemplated
in PAJA. In terms
of section 6(2)(g), read with section 6(3)(b,) of PAJA if the Fund
unreasonably delays in taking a decision in
circumstances where there
is a period prescribed for that decision, an application can be
brought for judicial review of the failure
to take the decision”
[22]
In
Mphala
it
was held that: “
By
including the prescribed period the legislature sought to ameliorate
the hardship experienced by claimants prior to and after
the
Duma
case. The intention was to bring legal certainty and to compel the
Fund to act promptly and timeously, not to create a presumption
in
favour of claimant that the injury in question is a serious one
.”
[13]
If the Fund should fail to take a decision within reasonable time,
the plaintiffs remedy is under PAJA and any decision by the
Fund is
subject to an internal administrative appeal to an appeal tribunal.
Neither the decision of the Fund nor decision of the
appeal tribunal
is subject to an appeal to the court. The court's control over these
decisions is by means of review proceedings
under PAJA.
THE
DEFENDANTS PLEA.
[23]
Counsel
on behalf of the defendant stressed the principle that an exception
must relate to the whole of the cause of action or claim
or as in
this matter, the defence and not to a particular paragraph. However
an exception can be taken to a particular section
of a pleading
provided that the paragraph or section is self-contained and amount
in itself to a separate claim or a separate defence.
[14]
Paragraph 7.1 and 7.2 of the defendant’s plea are
self-contained and amount in themselves to a separate defence to the
plaintiff’s
claim but it is the ambiguity or lack of
particularity and vagueness of paragraph 7.2 that forms the subject
matter of the exception.
[15]
[24]
Aside from carefully formulating sentences and choosing the language,
the structure of a pleading will be determinative whether
it meets
the requirements of conciseness, lucidity, logic, clarity and
precision.
[16]
The true
nature and effect of the plaintiff’s exception is that the
grounds upon which the claim is resisted was not
set forth shortly
and concisely but were indeed pleaded in such a way that it is
meaningless as it is unclear whether the serious
injury assessment
report is rejected or accepted and one is therefore left guessing as
to the actual meaning conveyed by the plea.
It was contended on
behalf of the defendant that its plea under paragraph 7.1 that
“…
the
defendant denies the nature and degree of plaintiff’s injuries
and accordingly the plaintiff is put to the proof thereof
”
is
perfectly in order and the exception therefore never had any merit to
begin with. The denial of the nature and degree of the
plaintiff’s
injuries strikes at the root of the defence and so the argument goes,
the only logical inference that can be
drawn on the pleadings as they
stand, is that the serious injury assessment of the plaintiff is thus
rejected.
[25]
It cannot be said that it can safely be ascertained or accepted that
the serious injury assessment submitted by the plaintiff
is rejected
by the mere denial of the nature and degree of plaintiff’s
injuries. Furthermore the Fund is obliged to provide
the plaintiff
with reasons for the rejection or indicate whether the plaintiff
should submit himself to a further assessment. Notwithstanding
the
Notice in terms of the provisions of Rule 23(1) allowing the Fund the
opportunity of removing the cause of the complaint by
indicating
whether it is rejecting the serious injury assessment report and if
so to furnish reasons for such rejection, alternatively
to indicate
whether it is reserving its right to do so after plaintiff has been
directed to submit himself to a further assessment,
the
defendant only after enrolment of the exception served its notice
whereby the serious injury assessment report was rejected.
Subsequent to the enrolment of the plaintiff’s exception on
25
th
January 2019 and subsequent to plaintiff’s heads of argument
being served and delivered on 22 February 2019, the defendant
served
its rejection in terms of Regulation 3(3)(d)(i) and (d(A) of the
serious injury assessment report on 28 February 2019. A
copy was
handed in to court by plaintiff’s counsel during argument.
[26]
The authors Herbstein & Van Winsen
[17]
state that: ‘
for
the purposes of an exception no facts may be adduced by either party
and an exception may thus only be taken when the defect
objected
against appears ex facie the pleading itself’
.
Thus in deciding whether the plea is defective in the sense alleged
by the plaintiff the court must have regard only to the pleadings
filed and cannot consider any fresh matter introduced by way of
evidence on affidavit or in any other manner.
[18]
Even though the notice of rejection should not influence the outcome
of the adjudication of the exception, the contents of the
notice of
rejection of the serious injury assessment report has however removed
the cause of plaintiff’s complaint against
the ambiguity and
vagueness of the plea. The plaintiff can ascertain what the
defendant’s defence against his claim for general
damages is
and can decide on further steps to be taken to proceed with his claim
if he so wishes.
[27]
The only aspect to further adjudicate upon is the question whether
the plea lacks particularity to the extent that it is vague
to decide
whether the exception was well founded in order to make an
appropriate cost order. The contents of paragraph 7.2 is vague
inasmuch as it is capable of being given more than one meaning and/or
lacks sufficient particularity to enable the plaintiff to
decide what
the next step in the process will be as explained in the
Duma
case.
The
main purpose of pleadings is to bring clearly to the notice of the
Court and the parties the issues upon which reliance are
to be
placed. This fundamental principle can only be achieved when each
party states his case with precision.
[19]
The second is whether the vagueness causes embarrassment of such a
nature that the excipient is prejudiced.
[20]
This
prejudice lies in the excipient’s inability properly to prepare
to meet the opponent’s case.
[28]
The
new Regulation (dA) seeks to define the rights of a claimant in
unambiguous terms and affords a plaintiff an opportunity, after
90
days after submitting his or her serious injury assessment report, to
apply for a mandamus in terms of PAJA to compel the Fund
to make a
decision. Mathopo JA held in
Mphala
[21]
that the amendment was specifically enacted “…
to
deal with the mischief identified by this court in Duma relating to
the phrase ‘within a reasonable time’ which caused
uncertainty to claimants
.”
The legislature sought to ameliorate the hardship experienced by
claimants by including the prescribed 90 day period and
the intention
was to bring legal certainty. The inclusion of the 90 day period
within which the Fund has to reject or accept the
serious injury
assessment report was obviously included to compel the Fund to act
promptly and timeously.
[22]
[29]
It is important to bear in mind that the plaintiff who wishes to
lodge a dispute regarding the rejection of the serious injury
assessment may do so by notifying the registrar within 90 days of
knowledge of the rejection. It is therefore of pronounced importance
to the plaintiff to comprehend the preferred course of action of the
Fund as the ultimate decision or failure to take a decision
will
influence the
modus
operandi
of the plaintiff. The plea in this matter is vague as it fails to
provide the degree of detail necessary properly to the plaintiff
of
the defence specifically in relation the seriousness of the
plaintiff’s alleged injuries. If paragraph 7.2 of the
defendant’s
plea is intended to contain a rejection of the
serious injury report submitted by the plaintiff the intent to reject
same should
be pleaded with clarity and it should not be for the
plaintiff to analyse the particular paragraph under discussion so as
to endeavour
to ascertain the intention of the defendant. Paragraph 7
of the plea
leaves one guessing as to its actual meaning as it does not read
intelligibly
[23]
. It fails the
test of lucidity, logic, clarity and precision. There can be no doubt
that such a pleading is excipiable as being
vague and
embarrassing.
[24]
[30]
On behalf of the plaintiff it was argued that the objection to the
defendant’s plea was on justified grounds. I agree.
Prayer 1,
apart from the prayer for costs and prayer 2 and 3 of the plaintiff’s
exception have become moot due to the notice
of rejection of the
serious injury assessment report delivered on 28 February 2019. On
the basis that the exception was justified
and the plaintiff would
have succeeded it follows that the plaintiff should be awarded costs
of the exception.
[31]
The following order is made:
1. The defendant is
ordered to pay the plaintiff’s costs of the exception.
_______________
I VAN RHYN AJ
On
behalf of the Plaintiffs: Adv. H J van der Merwe
Instructed
by: D J Joubert
Honey
Attorneys
On
behalf of the Defendant: Adv. I Sander
Instructed
by: J Dlamini
Maduba
Attorneys
[1]
1993 (3) SA 94 (AD).
[2]
Imprefed (Pty) Ltd v National Transport Commission
1993 (3) SA 94
(AD) at 107 C-E.
[3]
Trope v South African Reserve Bank and Another
1992 (3) SA 208
(T)
at 210 H.
[4]
Constantaras v BCE Foodservice Equipment (Pty) Ltd
2007 (6) SA 338
(SCA) at 349 A-B.
[5]
1998 (1) SA 836 (WLD).
[6]
Jowell v Bramwell-Jones at 913 F-G.
[7]
1992 (3) SA 208 (T.)
[8]
1992 (3) SA 208
(T) at 210 G-211 A.
[9]
See
Road Accident Fund v Farria (2014) 4 ALL SA 168 (SCA).
[10]
2013 (6) SA 9 (SCA).
[11]
Road Accident fund v Duma and Three Similar Cases
2013 (6) SA 9
at
[9]-[10].
[12]
(698/16)
[2017] ZASCA 76
(1 June 2017); Road Accident Fund v Lebeko
(802/2011)
2012 ZASCA 158
(15 November 2012).
[13]
Mphala at [14].
[14]
Barrett v Rewi Bulawayo Development syndicate
1922 A.D. 45
;
Lampert-Zakiewicz v Marine & Trade Insurance Co.Ltd
1975
(4) SA 597
at 599 E- 601 A.
[15]
Jooste v Jooste
1927 NPD 305
at 307; International Tobacco Company
of SA Ltd v Wolheim and Others 1953 (2) SA 603 (AD).
[16]
National
Director of Public Prosecutions v Phillips and Others 2002(4) SA 60
(W) at 106 E-H.
[17]
The Civil Practice of the Supreme Court of South Africa 5
th
Edition Vol 1 at 631.
[18]
Viljoen v Federated Trust Ltd.
1971 (1) SA 744
at 754 E-H.
[19]
Trope v South African Reserve Bank & Others 1992 (3) SA (TPD) at
210 F.
[20]
Quinlan v MacGregor
1960 (4) SA 383
(D) at 393 E-H.
[21]
Mphala at [17].
[22]
Mphala at [14].
[23]
Trope v South African Reserve Bank and Others
1992 (3) SA 208
at 211
D.
[24]
Parow Lands (Pty) Ltd v Schneider
1952 (1) SA 150
(SWA) at 152 F-G.