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[2018] ZAGPPHC 641
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Billings v Road Accident Fund (12247/2001) [2018] ZAGPPHC 641 (28 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
CASE
NO:12247/2001
28/2/2018
In
the matter between:
BILLINGS,
CHARMAINE
MARY
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
MANAMELA,
AJ
Introduction
and brief background
[1]
The applicant was injured on 20 December 1998 in a motor vehicle
collision. She was
a passenger in a motor vehicle, which collided
with another (unidentified) motor vehicle, on the road between
Ladysmith and Collenso.
The driver of the motor vehicle in which she
was travelling was, reportedly, the sole cause of the collision. The
applicant sustained
serious bodily injuries, as a result of the
collision, including severe head injury. She, reportedly, still
presents with cognitive
or neurological problems, such as dysarthria.
In May 200I, she issued summons against the respondent in terms of
the provisions
of the
Road Accident Fund Act 56 of 1996
for
compensation relating to her injuries sustained from the collision or
their
sequelae.
The respondent defended the action and denied
liability in its plea.
[2]
On
19 May 2005, when the matter came up for trial, a draft order, was by
agreement between the parties made an order of this Court
by
Hartzenberg DJP (the 2005 Order).
[1]
In terms of the 2005 Order, the respondent essentially conceded
issues relating to the merits or liability and agreed to compensate
the applicant for her proven or agreed damages to a maximum sum of
R25 000.00. Issues relating to the
quantum
of
the applicant's damages were postponed
sine
die.
[2]
The
amount of R25 000.00 represented the limit or cap in terms of section
18 of Road Accident Fund Act 56 of 1996 (the Old RAF Act).
[3]
The
limit or cap was effectively removed pursuant to the Constitutional
Court decision in the matter of
Mvumvu
and Orhers v Minister of Transport and Another.
[3]
In
Mvumvu,
the
Constitutional Court found section 18·of the Old RAF Act
inconsistent with the section 9(3)
[4]
of the Constitution of the Republic of South Africa Act, 1996 (the
Constitution) and declared it invalid. The legislature, to its
credit, had by then already (and with effect from 1 August 2008),
effected some amendments to the Old RAF Act in terms of the Road
Accident Fund Amendment Act 19 of 2005 (I will henceforth refer to
the legislation as amended as the New RAF Act).
[5]
The New RAF Act had to be further adjusted after the decision of
Mvumvu.
The
statutory adjustments effected by the legislature was in terms of the
Road Accident Fund (Transitional Provisions) Act 15 of
2012 (the
Transitional Provisions Act),
[6]
which came into effect on 3 February 2013. The Transitional
Provisions Act provides that victims of motor collisions subject to
a
cap or limit in terms of the provisions of the Old RAF Act, whose
claims have "not prescribed or been finally determined
by
settlement or judgment"
[7]
upon the advent of the Transitional Provisions Act, were allowed to
make an election to recover compensation in terms of the Old
RAF Act,
lest their claims would be subject to the provisions of the New RAF
Act.
[4]
As
stated above, in terms of the 2005 Order, a determination of the
issues relating to the
quantum
of
the applicant's damages is still to be made in respect of the
applicant's claim, after the indefinite postponement of this part
of
the trial in 2005. The applicant now seeks variation of the 2005
Order in order to remove the R25 000.00 cap or limit imposed
by the
provisions of the Old RAF Act. It is submitted that as determination
of
quantum
or
appropriate award for her damages is still pending before this Court,
therefore the applicant's claim has not been " finally
determined by settlement or judgment", as contemplated by the
provisions of the Transitional Provisions Act.
[8]
The limitation or capping of the applicant's claim will be severely
prejudicial to her, particularly ·considering that section
18
of the Old RAF Act was declared inconsistent with the Constitution,
the submission continues . Essentially, the applicant submits
that
the remaining part of her claim ought to be dealt with in terms of
the provisions of the New RAF Act, through a variation
of the 2005
order, in as far as, it imposes a limitation for recoverable damages.
[5]
The
application is unopposed and, therefore, it is by way of request for
default judgment. The papers in this application were served
on the
respondent, directly at its offices in Menlo Park, Pretoria, on 27
March 2017. This is so, despite the respondent having
appointed the
address of a firm of attorneys for exchange of pleadings and notices
in the action.
[9]
The applicant, as plaintiff in the action, has served notices using
the respondent's appointed address. But, for some reason, which
I
still cannot completely grasp, despite enquiry to counsel in this
regard, the applicant's attorneys decided not to serve this
application on the respondent's appointed address in the action, but
directly on the respondent. This may have further ramifications,
but
I cannot say there was no proper service on the respondent and I will
let nothing turn on this.
[6]
The application came before me in the
unopposed motion court on 19 July 2017. However, due to the fact that
the issues raised required
deeper reflection, I suggested to Ms T
Lipshitz, counsel appearing for the applicant, to prepare and file
heads to assist in the
determination required in the matter. The
filing of heads, despite my incessant enquiries was only done on 30
November 2017. But,
nevertheless I am grateful to counsel for the
heads of argument.
[7]
The above brief background will be
slightly enhanced by a discussion of the submissions made on behalf
of the applicant, as well
as, the applicable legal principles, to
which I turn, next.
Submissions
and applicable legal principles (a discussion)
The
2005 Order
[8]
As stated above, issues relating to the
merits of the personal injury claim by the applicant against the
respondent, were settled
in terms of the 2005 Order, granted on 19
May 2005. The material part of the 2005 Order reads:
"BY
AGREEMENT
between
the parties it is ordered that:
1.
The
Defendant concedes liability in respect of the Plaintiffs claim,
limited
to a maximum ofR25 000 -00
in
respect of the proven or agreed special damages;
2
.
The
quantum is postponed
sine
die;
3.
The
Defendant pays the Plaintiff's taxed or agreed party and party costs
on the merits, including the costs of Counsel on the appropriate
Magistrates Court scale."
[underlining
added for emphasis]
[9]
From
the terms of the 2005 Order, reflected above, it is clear that the
applicant settled her claim against the respondent for compensation
in an amount of not more than R25 000.00, in respect of special
damages. Apart from the complaint based on the potential prejudice
to
the applicant arising from the limit of R25 000.00, the applicant now
expresses some misgivings regarding circumstances surrounding
the
granting of the 2005 Order. She, among others, states that:
"I
did not attend the aforementioned court date[sic]. I was not aware
that the court order limited the quantum of my claim
to R25
000.00".
[10]
[italics
added for emphasis) I will return to this below, particularly
regarding the impact thereof on the variation sought by the
applicant.
Road
Accident Fund Transitional Provisions) Act 15 of 2012
[10]
As stated above, the statutory cap of R25 000.00 was removed
following the decision of
Mvumvu
on
17 February 2011 by the Constitutional Court, which found sections
18(1)(a)(i), 18(1)(b) and 18(2) of the Old RAF Act, as they
read
before 1 August 2008 inconsistent with the Constitution and,
therefore, invalid. This, ultimately, led to the introduction
of the
Road Accident Fund (Transitional Provisions) Act 15 of2012 (the
Transitional Provisions Act) on 3 February 2013.
[11]
[11]
The material part of the Transitional
Provisions Act reads as follows:
"1
...
In
this Act, unless the context indicates otherwise-
'Fund'
bears
the same meaning as defined in the Road Accident Fund Act, 1996 (Act
56 of 1996);
'new
Act'
means
the Road Accident Fund Act, 1996 (Act 56 of 1996), as it stood from 1
August 2008 onwards;
'old
Act' means the Road Accident Fund Act, 1996 (Act 56 of 1996), as it
stood prior to 1 August 2008;
…
.
'third
party'
means
a person who has a right to claim compensation from the Fund in terms
of section 17 of the old Act, whose claim is subject
to the
limitations imposed by section 18 (1) or (2) of that Act,
and
whose claim has, upon this Act taking effect. not prescribed or been
finally determined by settlement or judgment.
2
Transitional
arrangements for certain third parties
(1)
Unless the third party expressly and unconditionally indicates to the
Fund on the prescribed form, within one year of this Act
taking
effect, to have his or her claim remain subject to the old Act, the
claim of such third party is subject to the new Act
under the
following transitional regime:
(a)
Subject
to the remaining provisions of this Act, the cause of action of the
third party is deemed to have arisen on 1 August 2008
for purposes of
section l 2of the Road Accident Fund Amendment Act, 2005 (Act 19 of
2005), and section 17 (4A)
(b)
of
the new Act.
(b)
The
right of the third party to claim compensation for non-pecuniary loss
is limited to a maximum amount of R25 000, unless-
(i)
the
third party submits a serious injury assessment report as
contemplated in Regulation 3 of the Road Accident Fund Regulations,
2008, indicating a serious injury, within two years of this Act
taking effect; and
(ii)
it
is determined in accordance with Regulation 3 of the Road Accident
Fund Regulations, 2008, that the third party suffered a serious
injury... "
[underlining
added for emphasis]
Analysis
[12]
In terms of the definition of "third
party" in the Transitional Provisions Act, quoted above, a
claimant, like the applicant
in this matter, whose claim was subject
to the limitations imposed in terms of section 18 of the Old RAF Act,
will continue without
those limitations in terms of the New RAF Act,
provided the claim has not prescribed or been finally determined by
settlement or
judgment as at 3 February 2013, being the date on which
the Transitional Provisions Act took effect. Those qualifying
claimants
or third parties had to make an election (by "expressly
and unconditionally" indicating to the Fund (the respondent
herein)
on the prescribed form) within one year of the Transitional
Provisions Act taking effect to have his or her claim to remain
subject
to the Old RAF Act, otherwise their claims will be determined
in terms of the provisions of the New RAF Act.
[13]
The 2005 Order created an impediment for
the applicant. It limited the plaintiff' s claim for compensation in
respect of special
damages up to R25 000.00. The applicant submits,
in terms of the current application, that the limitation of her claim
will be
severely prejudicial to her and also inimical of the
declaration of inconsistency by the Constitutional Court in the
decision of
Mvumvu.
She
also submits that her claim against the respondent has not been
finally determined by settlement or judgment (as contemplated
by the
provisions of the Transitional Provisions Act) and, therefore, it is
still pending before this Court for determination of
issues relating
to
quantum.
However,
the provisions of the Transitional Provisions Act, particularly the
removal of the limitations of the Old RAF Act by the
New RAF Act,
will not find application to the applicant's claim in the existence
of the 2005 Order. Evidently, the applicant is
alive to this reality,
hence this application for variation of part of the 2005 Order.
[14]
It
is not stated under which Uniform Rule of this Court or law the
applicant submits the variation of the 2005 Order is permissible.
It
is a generally well-established rule of our courts that, once a court
has made a final judgment or order, it
becomes
functus officio
and,
no authority to correct, alter or supplement the judgment or order,
due to the principle of finality of judgments, save in
terms of the
specific circumstances provided for in terms of the Rules or the
common law.
[12]
In terms of the Full Court decision of this Division in
De
Wet and Others v Western Bank Ltd,
[13]
the following are the generally accepted ways in terms of which
judgment, particularly default judgement, can be set aside in the
High Court: Uniform Rule 31(2)(b); Uniform Rule 42(1) and the common
law.
[14]
In a quest to determine the applicable rule or legal principle, I
will briefly discuss the three ways, next.
[15]
Rule 42 of the Uniform Rules of this
Court reads in the material part:
"(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind or
vary:
(a)
An order or judgment erroneously
sought or erroneously granted in the absence of
any
party affected thereby;
(b)
an order or judgment in which there
is an ambiguity., or a patent error or omission, but only to the
extent of such ambiguity, error
or omission;
(c)
an order or judgment granted as the
result of a mistake common to the parties.
(2)
Any party desiring any relief under this
rule shall make application therefor upon notice to all parties whose
interests may be
affected by any variation sought.
(3)
...)”
[16]
Rule
42 is considered "a procedural step designed to correct
expeditiously an obviously wrong judgment or order".
[15]
From the above, it is clear that Rule 42 provides for rescission or
variation of judgments or orders on the bases of three broad
categories or instances. Firstly, where the order or judgment was
erroneously sought or erroneously granted in the absence of an
affected party. Secondly, where the particular order or judgment has
an ambiguity, patent error or omission. And thirdly, where
the
judgment or order was granted as a result of a mistake comm on to the
parties. I do not find any of these instances or categories
applicable to the this matter. Although, the applicant submits that
she did not attend court on the day the 2005 Order was granted
and
was not aware that the
quantum
of
her claim was limited to R25 000.00 in terms of the 2005 Order, which
presumably allude to the either the absence of accountability
or
instructions on the part of her erstwhile attorneys, this cannot
serve as a basis for rescission of the order in terms of Rule
42. The
applicant was clearly represented in court by counsel, ostensibly
acting on instructions from attorneys when the 2005 Order
was made on
19 May 2005. The applicant has instructed her erstwhile attorneys as
far back as 18 May 2001, to institute action against
the respondent
for compensation for injuries sustained in the collision.
[16]
It is trite that as at 19 May 2005, the respondent applicant's claim
was limited to an amount of R25 000.00. Therefore, whether
the
applicant attended court or was aware or not of the limitation is of
no consequence for current purposes. There was no other
legal basis
to fix the extent of the applicant's claim that on the basis stated
in the 2005 Order.
[17]
In my view, the inclusion of the words
"limited to a maximum ofR25 000.00 in respect of the proven or
agreed special damages",
which the applicant seeks to excise
from the 2005 Order, does not necessarily remove the statutory
limitation prevailing at the
time the impugned order was made. It
merely stated or confirmed the category of the applicant's claim, in
terms of the legislative
provisions which prevailed at the time. What
really matters is the existence of the impugned order. In other
words, whether the
disposal of the issues relating to the merits of
the applicant's claim in terms of the 2005 Order, constitutes final
settlement
or final judgment, in respect of the applicant's claim, as
contemplated by the Transitional Provisions Act. This, is the
determination,
that, ultimately, is to be made regarding the
applicant's claim against the respondent. I am aware that ultimately
there will be
a need to vary the 2005 Order, hence I continue the
discussion of possible ways in terms of the Rule 31 or the common
law.
[18]
In
terms of Rule 31, for an applicant for rescission of judgment granted
against him or her to be successful, such applicant have
to show good
cause. Showing good cause means such applicant ought to give a
reasonable explanation for his or her default; show
that rescission
was brought
bona
fide;
that
they have a
bona
fide
defence,
including a prima facie case on the merits. In
Silber
v Ozen Wholesalers (Pty) Ltd
[17]
it
was held that "good cause" includes the existence of a
substantial defence, but is not limited thereto. The substantial
defence has to exist against a
bona
fide
presently
held desire to raise such a defence once the judgment is
rescinded.
[18]
There also ought to be an explanation for the default. The court,
seized with a rescission application, may interfere with the
exercise
of a discretionary power of the court which granted the impugned
order or judgment, only if that power has not been properly
exercised.
[19]
Rule 31 reads, as follows, in the material part:
"(1)
...
2)
(a)
Whenever in an action the claim ... is not for a debt or
liquidated demand and a defendant is in default of delivery of notice
of
intention to defend or of a plea, the plaintiff may set the action
down as provided in subrule (4) for default judgment and the
court
may, after hearing evidence, 'grant judgment against the defendant or
make such order as to it seems meet.
(b)
A
defendant may within twenty days after he or she has knowledge of
such judgment apply to court upon notice to the plaintiff to
set
aside such judgment and the court may, upon good cause shown, set
aside the default judgment on such terms as to it seems meet."
[19]
But, the 2005 Order, having been granted
by agreement between the parties, is not a default judgment
contemplated by Rule 31(2)(b),
quoted above. It was granted by
agreement between the parties at a trial, which presumably was the
result of a proper notice of
set down. This is so, despite the
misgivings by the applicant already deal with above. Therefore, Rule
31 is also not applicable
to this application.
[20]
Now
to the comm on law. According to the learned authors of
Erasmus
Superior Court Practice,
[20]
judgment
can be set aside at common law on the grounds of
fraud;
justus error;
in
certain exceptional circumstances when new documents have been
discovered; where judgment had been granted by default; and in
the
absence between the parties of a valid agreement to support the
judgment, on the grounds of
Justa
causa.
[21]
The
following
dicta,
from
the decision of
De
Wet v Western Bank
may
explain this further:
"
Before
a judgment would be set aside under the common law, an applicant
would have to establish a ground on which
restitutio
in integrum
would
be granted by our law such as fraud or
Justus
error
in
certain circumstances...
Under
the common law a judgment can be altered or set aside only under
limited circumstances and the additional relief extended
by the Rules
of Court is intended to modify such rigid provisions but within the
confines of such Rules. The Court is empowered
to grant relief in
certain additional circumscribe d circumstances."
[22]
[quoted
without accompanying citations or authorities]
[21]
In
the decision of
De
Wet v Western Bank
it
was submitted that, ultimately on appeal a court "has a residual
inherent jurisdiction to set aside the judgment by means
of which it
holds the scales of justice where no specific Jaw or rule exists to
cover the particular circumstances of the case".
[23]
But, although the court state that it has inherent power to control
its procedure and proceedings, the court held that that does
not
necessarily give the· court the right to interfere with the
principle of finality of judgments, other than in circumstances
specifically provided for in the Uniform Rules or at common law.
[24]
[22]
The submissions made by the applicant as
grounds for this Court to vary the 2005 Order can be summarised as
follows. The applicant
did not attend court on 19 May 2005, when the
impugned order was made. She was not aware that the impugned order
limited the
quantum
of
her claim to R25 000.00. Between 19 May 2005 and 26 March 2016 no
offer was received from the respondent in respect of the
quantum
of her claim. On 26 March 2016, the
applicant consulted with a new firm of attorneys to represent her in
the claim against the respondent.
On 10 March 2015, she had
terminated her mandate to her erstwhile attorneys. She was advised by
her new attorneys that settlement
of her claim was received from the
respondent in an amount of R25 000.00 on 15 December 201·5.
Investigations had to take
place regarding the progress in the matter
in order to determine why the respondent make such a limited offer,
which investigations
revealed a copy of the 2005 Order. Her new
attorneys contacted her erstwhile attorneys in order to determine
what transpired at
court on 19 May 2005, but was told the attorney
who handled this matter is no longer in the employ of those attorneys
and that
there are no notes in the file indicating what transpired in
the matter. The applicant further submits that she does not recall
ever discussing the impugned order with her former attorneys and have
never given instructions in accordance with the 2005 Order.
[23]
The applicant clearly suggests that her
former attorneys did not conduct themselves in a manner that is to be
expected of members
of their profession and officers of this Court.
She alleges that they attended court and entered into a settlement
agreement without
discussing it with her. This also means that they
have never explained to her from the moment she instructed them on 18
May 200l
until 19 May 2005 that her claim against the respondent was
limited. I find totally incredible. Further the applicant appears to
have been disinterested in her matter between May 2001 and March
2016. This is not acceptable for a litigant.
[24]
Further, as stated above, the applicant
does not state what instructions she would have given to her
erstwhile attorneys if she
was alerted of the trial in 2005. No one,
including the applicant herself and her erstwhile attorneys would
have predicted that
there will be a change in statutory provision and
therefore that a settlement limited to an amount ofR25 000,00 would
have constituted
bad advice on the part of the attorneys. This means
that the conduct of the attorneys or even the historical aspect of
this matter
is not really relevant for determination to be made, but
whether the 2005 Order poses an impediment to the applicant's claim.
Was
the 2005 order a final judgement in respect of the applicant's claim?
[25]
The Transitional Provisions Act does not define or explain what is
meant by "final settlement"
or "a final judgment".
I also, could not come across a decided case on this, and equally so,
the heads of argument by
counsel do not deal with this. Therefore,
what constitutes final settlement or final judgment will be dealt
with in a circular
fashion.
[26]
As stated above, it appears that the court ordered the separation of
the determination of issues
relating to merits from issues relating
to
quantum
of the applicant claim. This was presumably in
terms of Rule 33(4) of the Uniform Rules of this Court. Rule 33 reads
in the material
part:
"(4)
If, in any pending action, it appears to the court
mero motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from any
other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit and may order
that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application of any
party make such
order unless it appears that the questions cannot conveniently be
decided separately.
(5)
When giving its decision upon any question in terms of this rule the
court may give
such judgment
as may upon such decision be
appropriate and may give any direction with regard to the hearing of
any other issues in the proceeding
which may be necessary for the
final disposal thereof."
[Underlining
added for emphasis]
[27]
From what is reflected above, Rule 33(5) contains the word
"judgment". However, the
Rules do not appear to define what
is meant by judgment. However, the usage or employment in Rule 33(5)
appears to suggests that
in matters where separation is ordered,
judgment may be given "upon any question" in terms of which
the separation was
ordered. This, in my view, suggests the
possibility of more than one judgment in the same matter. This view
appears to be shared
by the learned authors of
Erasmus Superior
Court Practice
in the following paragraph:
"It
has been held that the effect of an order that the merits and
quantum
be
decided separately, is that the issues on the pleadings would be
resolved in
two
separate and self-contained trials
,
and that an order made by the court after the first trial (for
example issues other than
quantum)
was
a final decision,
definitive
of the rights of the parties and appealable,
in respect of which the court
was
functus officio."
[25]
[quoted
without accompanying authorities]
[28]
In
David
Hersch Organisation (Pty) Ltd and Another v Absa Insurance Brokers
(Pty) Ltd
[26]
Southwood
J stated the following relying on the authorities stated thereto:
"
The
effect of the order made in terms of Rule 33(4) was that the issues
on the pleadings would be resolved in two separate and self-contained
trials. See
Schmidt
Plant Hire (Pty) Ltd
v
Pedreili
1990
(I) SA 398 (D) at 408H--I and 408B-- C.
The
order made by Sutherland AJ after the hearing on the issues other
than
quantum
was
a final decisi on (ie it could not be corrected or altered or set
aside by the trial Judge at a later stage of the trial) and
it was
(or
should
have been) definitive of the rights of the parties.
See
SA
Eagle Versekeringsmaatskappy Bpk
v
Harford
(supra
at
789B and 792C--H);
Marsay
v
Dilley
[1992] ZASCA 114
;
1992
(3) SA 944
(A) at 962C- H;
Schmidt
Plant Hire (Pty) Ltd
v
Pedrelli
(supra
at
407A--D).
As
a final decision. the order was appealable
.
See
Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987
(4) SA 569
(A) at 583H--T;
SA
Eagle Versekeringsmaatskappy Bpk v Harford (supra
at
792H);
Marsay
v Dilley (supra
at
962C--E)."
[27]
[29]
On
the basis of the above, I consider settled the issue whether or not
the 2005 Order constitute a judgment. However, this does
not answer
the question whether same was a final judgment as contemplated by the
provisions of the Transitional Provisions Act.
To determine this, I
will employ the tools of interpretation suggested in the decision of
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[28]
that "Interpretation is the process of attributing meaning to
the words used in a document, be it
legislation,
some other statutory instrument,
or contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production." [quoted without
references, but
with added underlining]
[30]
Therefore,
in order to determine the grammatical meaning of the words "final
judgement" in terms of the above
dicta
from
Endumeni,
I
will use the dictionary meaning of the words. In terms of the
Compact
Oxford Dictionary Thesaurus
&
Wordpower
Guide
[29]
the
word "final" means: "
adj.1
coming at the end; last.
2
allowing
no further doubt or dispute...
n.1
the
last game in a tournament, which will decide the overall winner..."
Therefore, the reference to "a final judgment"
in the
Transitional Provisions Act, in my view, refers to the judgment which
will "come at the end" of be "last"
in the
judgments or orders of a particular court seized with the matter,
where there is more than one judgment or in case of a
single
judgment, that judgment that is made at the end of the matter. The
2005 Order was not made at the end of the matter and
is, therefore,
not the last the judgments potentially to be made in this matter, as
it only related to issues relating to merits
of the applicant's
claim.
[31]
Be that as it may, the matter is not fully decided on this aspect.
Whether the 2005 Order constitutes
a final judgment, does that
address the issues that the 2005 Order came into being due to an
agreement reached between the parties.
The question that has to be
addressed is whether the variation of an order made consequent to an
agreement between the parties
is capable of variation by the court
bearing in mind the cornerstones of our law contract, which include
freedom of contract and
the sanctity of contract.
[32]
But, in my view, I do not have to decide the issue of variation of a
settlement agreement between the
parties. The material issue to
determine in this matter is whether reference to the . limitation of
the claim to R25 000.00 was
something that was specifically agreed
upon by the parties. In my view, the reference was merely made to
record the existing legislative
provision at the time and
specifically to categorise the applicant's claim as a limited claim.
It does not appear that the inclusion
of the statutory limit
prevailing at the time was essential element of the agreement between
the parties, but rather just confirming,
out of abundance of caution,
that the applicant's claim is a limited claim . This, in my view, is
logical since, at that time in
2005, no one, including the parties
themselves, anticipated that the statutory limitation will be
removed. In other words, it does
not appear from the facts of this
matter that either of the parties will have had the necessary
intention to settle the matter
in the manner only if the words or
limitation of R25 000.00 is included beyond what was provided or
independent of section 18 of
the Old RAF Act.
[33]
Therefore, I come to the conclusion that, the impugned order is not
necessarily the agreement between
the parties. I am of a further view
that same can be rescind ed as part of the order made by the court.
However, from what is stated
above the Uniform Rules of this Court
and the common law, do not allow this Court to just vary judgements
due to the principle
of finality judgments, save in the instances as
stipulated in the rules. However, as indicated above, there could be
circumstances
under which deviation is possible from the stipulations
of the rules. I consider deviation necessary in this matter in the
interests
of justice. Therefore, the 2005 Order will be varied in
terms of the notice of motion and the applicant's claim will proceed
in
terms of New RAF Act.
Order
[34]
For the abovementioned reasons, the
following order is granted:
a)
the
order of this Court granted on 19 May 2005 by Hartzenberg DJP is
varied by deletion of the following words from paragraph 1
thereof:
"limited to a maximum of R25 000-00 in respect of the proven or
agreed special damages";
b)
save
as stated in a) hereof, the remainder of the order of this Court
granted on 19 May 2005 by Hartzenberg DJP remains unaffected
by the
order.
K.
La M. Manamela
Acting
Judge of the High Court
28
February 2018
Appearances:
For
the Applicant
: Ms T Lipshitz
Instructed
by Swartz Attorneys
c/o
Friedland Hart Solomon & Nicolson
Monument
Park, Pretoria
For
the Respondent
: No appearance (Default Judgment)
[
1]
See
par [8] below, for the material terms of the 2005 Order.
[2]
This suggests that the court would have allowed for a separation of
issues relating to merits from issues relating to quantum,
as
contemplated by Uniform Rule 33(4).
[3]
2011 (5) BCLR 488
(CC); 201 l (2) SA 473 (CC).
[4]
Section 9 of the Constitution provides in the material part: "(1)
Everyone is equal before the law and has the right to
equal
protection and benefit of the law. (2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote
the
achievement of equality, legislative and other measures designed to
protect or advance persons, or categories of persons,
disadvantaged
by unfair discrimination may be taken. (3) The state may not
unfairly discriminate directly or indirectly against
anyone on one
or more grounds, including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual
orientation, age,
disability, religion, conscience, belief, culture, language and
birth... "
[5]
The references "new Act" and "old Act" are
contained in section l of the Road Accident Fund (Transitional
Provisions) Act 15 of2012 (Transitional Provisions Act). In terms of
this legislation "new Act" means the Road Accident
Fund
Act, 1996 (Act 56 of 1996), as it stood from I August 2008 onwards",
whereas "old Act" means the Road Accident
Fund Act, 1996
(Act 56 of 1996), as it stood prior to 1 August 2008".
[6]
6
See
par (11) below, for a reading of the Transitional Provisions Act.
[7]
See the definition of "third party" in section I of the
Transitional Provisions Act.
[8]
See the definition of "third party" in section 1 of the
Transitional Provisions Act.
[9]
See
notice of intention to defend dated 23 May 2002.
[10]
See par 12 of the founding affidavit on indexed p 6.
[11]
Proc 3 in
GG
36141
of 8 February 2013.
[12]
See
Erasmus Superior
Court Practice,
2
nd
edition, at RS 5, 2017, D1-563.
[13]
1977 (4) SA 770
(T) at p 776D-H.
[14]
See
De Wet v Western
Bank
at p 776D-E.
[15]
See
Promedia Drukkers
& Uitgewers (Edms) Bpk v Kaimowitz and Others
1996
(4) SA 411
(C). See also
First
National Bank of Southern Africa Ltd
v
Van Rensburg NO and
Others: In re First National Bank of Southern Africa Ltd v Jurgens
and Others
1994 (1)
SA 677
(T) at 681C).
[16]
See
par 10 of the founding affidavit on indexed page 6.
[17]
1954 (2) SA 345
(A) at 352G.
[18]
See
Galp v Tansley NO
1966 (4) SA
555
(C) at 560B;
Mnandi
Property Development
CC
v Beimore Development
CC
1999 (4) SA 462
(W) at 464H-I.
[19]
See
Ferris and another
v
Firstrand
Bank LTD
2014 (3) SA
39
(CC) at paras [23)- [27); parallel reporting under
2014 (3) BCLR
321
(CC) 329-330 at paras [23]- [27].·
[20]
2
nd
edition.
[21]
See
Erasmus
at
RS 5, 2017, Dl-563
[22]
See
De Wet
v
Western Bank
at
p 776F-H.
[23]
See
De Wet v Western Bank
at pp 780-781.
[24]
Ibid
[25]
See
Erasmus Superior Court
practice
at OS, 2015,
DI -439.
[26]
1998
(4) SA 783 (T).
[27]
See
David Hersch
Organisation v Absa Insurance Brokers
at
p 787c-e.
[28]
2012(4) SA 593 (SCA) and
[2012] 2 All SA 262
(SCA) at para [18].
Endumeni
was
followed i n various other decisions including in the Constitutional
Court of
Kwazulu-Natal
Joint Liaison Committee
v
Member of the
Executive Council, Department of Education, KwaZulu-Nara! and others
(Centre for Child Law as amicus curiae)
2013
(6) BCLR 615
(CC) on p 651 at para 129.
[29]
(2001) Oxford University Press, New York.