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[2019] ZANCHC 33
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Sauer v Road Accident Fund (2/2018) [2019] ZANCHC 33 (16 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTHERN CAPE HIGH COURT,
KIM BERLEY)
Case No: 2/2018
Heard On:
31/07/2019
Delivered:
16/08/2019
In the matter between:
ALETTA
SIBINA
SAUER
Applicant
AND
THE
ROAD ACCIDEND
FUND
Respondent
JUDGMENT
COETZEE AJ
[1]
The
trail was set down for hearing on 29 and 30 July 2019. As the parties
was engaged in negotiations, the matter did not commence
on 29 July
2019 and stood down to 30 July 2019.
[2]
At
the commencement of the trail on 30 July 2019 the parties, by
agreement handed me a document titled
"Stated
case
as
agreed
between the parties"
("the
stated case"). I was asked to adjudicate the issues as set out
in the stated case.
[3]
In
terms of paragraph 4 of the stated case I was requested to
order
a separation of issues in terms of Uniform Rule 33(4) to the effect
that the issues as set out in paragraphs 3.3 and 3.4 of
the stated
case will be determined on the basis of a stated case and in
accordance with the facts as set out in the states case,
and that all
other issues are to stand over for determination at a later stage.
[4]
I
granted the request and ordered the separation.
[5]
Save
for paragraphs 3.1, 3.2, 3.3 and 4, the relevant paragraphs of the
stated case reads as follows:
"1
The plaintiff has instituted action against the defendant for the
payment of damages suffered
by her
as
a
result of
injuries sustained in
a
motor vehicle
accident on 4 April 2014.
2
The
defendant is defending the said action and by way of a special plea
has raised the defence that:
2.1
the
plaintiff's claim has been settled by way of
a
settlement agreement signed by the
plaintiff on 14 June 2016;
2.2
the
said agreement
was
in
full and final settlement of the plaintiff's claim against the
defendant; and
2.3
as
a
result of the said settlement
agreement the plaintiff
was
in
law not entitled to institute action for damages
as
a
result of the accident referred to
above.
3
The
plaintiff has replied, inter alia,
as
follows to the abovementioned
allegations by the defendant:
3.1 ……..
3.2 ……..
3.3 ……..
3.4 The
defendant failed to comply with the terms of the agreement and
therefore repudiated the agreement and
which repudiation was accepted
by the plaintiff who cancelled the agreement and
as
a
result of
which the agreement
was
of no force
and effect anymore.
4
......
5
The following facts are common
cause between the parties:
5.1
During
or about March 2015 the plaintiff, in terms of the provisions of Act
56
of
1995, submitted
a
claim
to the defendant for damages suffered by her as
a
result of
a
motor vehicle accident.
5.2
On
14 June 2016 the plaintiff, who acted in person and without legal
representation, signed the document titled "Offer and
Acceptance
of Settlement".
5.3
The
said "Offer and Acceptance of Settlement", duly signed by
the plaintiff, was received by the defendant on
16
June 2016.
5.4
In
terms of section B of the said "Offer and Acceptance of
Settlement" the capital amount of the settlement was payable
to
the plaintiff within 120 days from date of receipt of "Offer and
Acceptance of Settlement" by the defendant.
5.5
The
said period of 120 days elapsed on 14 October 2016.
5.6
On
5 July 2016, after obtaining legal advice and upon instructions by
the plaintiff, her attorney sent
a
letter to the defendant.
(The
contents of which appears in paragraph 7 hereunder).
5.7
7
The defendant did not reply to the
letter dated 5 July 2016.
5.8
On
3 December 2016 the capital amount of the settlement was paid into
the plaintiff's bank account.
5.9
On
6 December 2016 and upon instructions by the plaintiff her attorney
dispatched another letter to the defendant.
(The
contents of which appears in paragraph 8 hereunder)."
[6]
In
opening Mr van Niekerk, on behalf of the plaintiff, abandoned, for
purposes of his argument, the averments contained in paragraphs
3.1,
3.2, and 3.3 of the stated case and informed me that plaintiff will
only rely on the averments contained in paragraph 3.4.
[7]
It
is convenient to quote both letters dated 5 July 2016 ("the
first letter") and 6 December 2016 ("the second letter"):
The first letter
"INSAKE: MEV ALETTA SIB/NA
SAUER, ID NOMMER: 670610121089/ PADONGELUKKEFNDS/ EIS NOMMER:
2006/12253677 /04/0
Ons verwys na bogenoemde
aangeleenthied en beestig dat ons hierin optree namens en op
instruksie van Mev Aletta Sibina Sauer, ID
nommer [….] wie 'n
klient van ons firma is.
Ons klient het op die 14 Junie
2016 die Padongelukkefonds se aanbod wat per koerier aan haar gestuur
is onderteken. Na konsultasie
met die skrywer op 30 Junie 2016 het
sy
instruksie
gegee dat ons die aanvaarding van die aanbod terugtrek en wel om die
volgende redes:
1.
Ons
klient het nie enige insae gehad in die verslae wat deur die verskeie
deskundiges gedoen is nie en kon dus nie 'n ingeligte
besluit neem
oor die bepaling van die omvang van die skade wat sy as gevolg van
die beserings wat sy tydens die motorongeluk opgedoen
het nie.
2.
Ons
klient het nie 'n uiteensetting gekry vanaf die Padongelukkefonds van
hoe die bedrag wat getender is saamgestel en bereken is
nie. Slegs
die algemene skade en verlies aan inkomste asook 'n sertifikaat is
getender, sonder om aan te dui hoe dit bereken is.
3.
Ons
klient het geen uiteensetting en/of verslag van 'n aktuaris ontvang
van hoe die berekening gdegoen
is
ten opsigte van haar toekomstige
verlies aan inkomste nie.
4.
Ons
klient
se
skade substansieel meer
is
as
wat u getender het.
5.
U
watnvoorstelling teenoor ons klient gepleeg het.
Ons
ontvang
skriftelike bevestiging dat u die kansellasie van die aanvaarding van
die aanbod aanvaar voor of op 18 Julie 2016. lndien
u sou versuim om
ons skriftelik van u aanvaarding van
ons
klient in
kennis te stet, sat ons voortgaan om 'n Hooggeregshof aansoek op te
stet vir 'n verklarende bevel dat die ooreenkoms gekanseller
is
en van nul en
gene waatde is.
Aangeheg vind u:
1.
Ons
maandaat
(sic).
2.
Die getekende aanbod wat
ons
klient
hiermee kanselleer.
Ons
verneem
dringend van u."
The second letter
"I/S: ALETTA SIB/NA SAUER/
DIE PADONGELUKKEFONDSI EISNR: 2006/12253677/04/0, IDENTITEITSNOMMER:
[….]
Ons verwys na bogemelde
aangeleentheid asook 'n skrywes gerig aan u op die 1ste Julie 2016
wat per geregistreerde pos sowel as per
hand aan u gelewer waarin ons
u in kennis gestel het dat ons op instruksie van Mev Aletta Sibina
Sauer, wie 'n klient van ons firma
is die aanvaarding van die aanbod
wat u aan haar gemaak het terugtrek.
Ons verwys u daama dat
ontvangserkenning van hierdie skrywe gedoen het op die 5de van Julie
2016.
Ons klient het ons in tussen laat
weet dat u op die 2de van Desember 2016 die bedrag van R739 120.02 in
haar bankrekening in betaal
het. Weens die feit dat ons reeds aan u
aangedui het dat Mev Sauer die aanbod wat sy aanvaar het terugtrek
versoek ons dan driengend
hiernee bankbesonderhede om bovermelde
bedrag aan u terug te betaal ten einde ons klient die kans te gee om
haar skade deur middel
van haar prokureurs behoorlik te ondersoek en
indien nodig by wyse van 'n aksie van u te vorder.
Ons verneem dringend van u
hierin.,,
[8]
The
contents of the first letter clearly indicates that the plaintiff
wanted to opt out of the settlement agreement for the reasons
set out
in the letter and these reasons do not form part of the issue I am to
decide. Notably, however, is that the plaintiff indicated
that if the
defendant does not accept plaintiff's cancellation, the High Court
would be approached for a declaratory order declaring
the settlement
agreement cancelled. No process was instituted for such a declarator.
[9]
Mr
van Niekerk submitted that the defendant was
in
mora
as from 15 October 2016, as
payment of the settlement amount was due on 14 October 2016. For this
submission he relied on
Mpanza v RAF
[2010] JOL 26508 (KZD).
[10]
In
this regard the learned Judge, in the Mpanza-decision, said the
following:
"It
is
trite law that when
a
time
for performance is fixed, the debtor's failure to perform by that
time
is a
breach
and no demand is necessary to make it
so.”
Swain J then, correctly in my
view, finds that in order to cancel the settlement agreement, the
time for performance should be of
essence and this must be determined
from the nature of the contract and the surrounding circumstances.
(Mpanza (supra),
paragraph 8)
[11]
The learned Judge then considered the
following circumstances, which are almost identical to the facts in
the present matter and
found that time was of the essence. With his
finding I agree. He then summarized the circumstances as follows:
"[9]
In the present case
as
pointed out
above, the surrounding circumstances to the settlement agreement were
that the plaintiff sought compensation for injuries
she allegedly
sustained some three years before. In addition, no provision was made
in the agreement for the payment of interest
to the plaintiff in the
month before payment was due. Also of significance is that payment to
the plaintiff was not to be delayed
until the plaintiff's legal costs
were finalised, whether by way of taxation, or by way of agreement.
[10]
Considering all of the above I am satisfied that time was of the
essence in respect of the date
for payment by the defendant, and
consequently no demand placing the defendant in mora was necessary
before the plaintiff cancelled
the agreement. It must have been
a
tacit term of
the compromise that its effectiveness was conditional upon it being
carried out. It is inconceivable that where, as
in the present case,
the defendant had failed to make payment some six months after the
due date, the plaintiff's remedies could
be restricted to enforcing
the compromise. (Christie, supra, at 461) In the result the plaintiff
validly cancelled the settlement
agreement and the compromise of the
plaintiff's cause of action was rescinded, allowing the plaintiff to
proceed on the original
cause of action."
[12]
The Mpanza-decision
is, however, to be distinguished from the present matter in that the
settlement agreement and the intention
to cancel the agreement was
communicated to the defendant at a stage when no payment was made.
The facts of the present matter
differ as payment was made whilst the
settlement agreement was still in force.
[13]
The plaintiff was,
as of right, entitled to cancel the agreement immediately on
non-payment. As cancellation is a juristic act,
the election to
cancel has to be communicated to the repudiating party. (Cf
Swart
v Vosloo
1965
(1) SA 100 (A) at 105G and 115E - F.) I shall deal with communication
infra.
[14]
Plaintiff relies on defendant's
repudiation of a material term of the settlement agreement being the
non-payment on an agreed date,
which repudiation the plaintiff
elected to accept and consequently cancelled the settlement
agreement. The election to accept defendant's
repudiation as well as
the communication of this election could therefor only have taken
place subsequent to the date of defendant's
failure to make payment
on 14 October 2016. This follows that any election to cancel could
only have been made after 14 October
2016. In view of this, the
contents of the first letter is of no consequence in regard to the
issue I am to decide.
[15]
Brand JA, in South African Forestry Co
Ltd v York Timbers Ltd
2005 (3) SA 323
(SCA) (with reference to
Datacolor International (Pty) Ltd v lntamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA
284
(SCA at 249H) said the following:
Repudiation occurs where one
party, without lawful grounds, indicates to the other party, by word
or conduct,
a
deliberate
and unequivocal intention that all or some of the obligations arising
from the contract will not be performed in accordance
with its true
tenor (see eg Datacolor International (Pty) Ltd v lntamarket (Pty)
Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) at 294H-I; Metalmil (Pty) Ltd v AECI
Explosives and Chemicals Ltd (supra) at 684-685B
[16]
The only conduct on which the plaintiff
relies for constituting a
"deliberate
and unequivocal intention that all or
some
of the obligations arising from the
contract will not be performed in accordance with its true tenor''
is
the non-payment of the settlement amount on the due date.
[17]
The test to be
applied is whether the defendant, in not making payment on the due
date, acted in such a way as to lead to the reasonable
conclusion
that he did not intend to fulfil his part of the agreement. In the
words of Nienaber JA in
Datacolor
International (Pty) Ltd v lntamarket (Pty)
Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) paragraph
[16]:
"Repudiation is
accordingly not
a
matter of intention,
it is
a
matter
of perception. The perception is that of
a
reasonable person
placed in the position of the aggrieved party. The test is whether
such
a
notional
reasonable person would conclude that proper performance (in
accordance with
a
true interpretation
of the agreement) will not be forthcoming. The inferred intention
accordingly serves
as
the criterion for
determining the nature of the threatened actual breach."
And
in [18]
"The conduct from which
the inference of impending non- or ma/performance is to be drawn must
be clear cut and unequivocal,
i.e. not equally consistent with any
other feasible hypothesis."
[18]
Considering the
nature of the settlement agreement and m particular the
non-reciprocal nature thereof I am of the view that a notional
reasonable person in the position of the plaintiff would conclude
that proper performance (in accordance with a true interpretation
of
the agreement) would not be forthcoming and that the defendant showed
a deliberate and unequivocal intention not to perform.
[19]
The
question remains whether the payment of the settlement amount
deprived the applicant of the right to accept or reject the
defendant's
repudiation, which right s
he
acquired when the defendant failed to make payment timeously.
[20]
For the proposition that the plaintiff
was deprived of her right to cancel, the defendant bears the onus to
prove, on a balance
of probabilities, that plaintiff waived or
retracted such right. (See
Hepner v
Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(SCA) at, 778 G-H and 779 A (also reported as
[1962] 4 All
SA 510
(A))
[21]
Based on the facts set out in the stated
case it cannot be found that the plaintiff, either explicitly or by
conduct waived her
right to cancel as her conduct in refusing
acceptance of the payment is plainly inconsistent with the waiver of
her right to cancel.
[22]
Mr van Niekerk submitted that the second
letter constitutes an election to cancel the settlement agreement and
relied on
Datacolor International
(Pty) Ltd v lntamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) paragraph 28,
where the learned Judge held as follows:
"In particular, the
innocent party need not identify the breach or the grounds on which
he relies for cancellation. It is settled
law that the innocent
party, having purported to cancel on inadequate grounds, may
afterwards rely on any adequate ground which
existed at, but was only
discovered after the time (cf Putco Ltd v TV
&
Radio Guarantee
Co
(Pty) Ltd and other
related cases
1985 (4) SA 809
(A) at 832C-D).
[23]
In rejecting payment
by the defendant, the plaintiff made her attitude with regard to her
right to cancel clear and I am of the
view that she communicated her
cancellation, at the very least implicitly, to the defendant.
[24]
It follows that the
special plea is dismissed with costs.
W J COETZEE
ACTING JUDGE-NORTHERN CAPE
DIVISION, KIMBERLEY
On
Behalf of the Plaintiff:
Adv J Van Niekerk
(SC)
Instructed
by:
Elliott Maris
On
Behalf of the Defendant:
Adv
Thomas
(SC)
Instructed
by:
Robert Charles Attorneys