About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 50
|
|
Van Wyk v Road Accident Fund (69459/2013) [2017] ZAGPPHC 50 (6 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
06/02/2017
CASE
NO: 69459/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
R
R VAN
WYK
Applicant
and
ROAD
ACCIDENT
FUND
First Respondent
JUDGMENT
Baqwa
J
[1]
In this
application the applicant seeks payment of his past medical expenses
together with costs relating to a motor vehicle accident
which
occurred on 15 December 2012.
[2]
The respondent
opposes the application and its grounds for opposition can be grouped
into three, namely, a special plea of
lis
pendens;
secondly
that the vouchers supporting the claim do not relate to the injuries
sustained by the applicant in the accident and that
the amount
claimed by the applicant constitutes an illiquid damages claim which
ought not to be claimed by way of motion court
proceedings.
Background
[3]
It is common cause
that the applicant was involved in a motor vehicle accident on 15
December 2012 and that he sustained injuries
which are confirmed by a
medico-legal report of Dr Oelofse.
[4]
It is further
common cause that the applicant instituted action against the
respondent under case number 69459/2013.
[5]
The action was
settled on 28 October 2015 except for the issue of the applicant's
past medical and hospital expenses which was postponed
sine
die.
[6]
It is trite that
the respondent is legally mandated to reasonably compensate a third
party for the loss or damage wrongfully caused
through driving of the
motor vehicle. It is equally trite that such loss would include past
medical and hospital expenses. This
is provided for in section 17 (1)
and (5) of Act 56 of 1996.
Discussion
of Points in Dispute
Lis
Pendens
[7]
The requirements
for
lis pendens
are:
7.1
Pending litigation
7.2
Between the same parties
7.3
Based on the same cause of action
7.4
Based on the same subject matter
Upon
reading the documents filed it is quite apparent that the above
requirements are met in the present application. The Court
Order on
28 October postponed the issue of damages for past medical expenses
sine die.
Ordinarily
one would expect the plaintiff to set the matter down for a hearing
of the uncompleted part of the trial. It is not quite
clear to me why
the applicant/plaintiff has chosen the motion court route.
[8]
Further, a claim
for illiquid damages ought to be brought through action proceedings.
This point is driven home in numerous decisions
of our courts. Thus
in
Room Hire (Pty) Ltd
v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1161 Murray A J. P. stated the law in this
regard as follows:
"There
are on the other hand certain classes of
case
(the instances given
by Dowling, J., are matrimonial causes and illiquid claims for
damages) in which motion proceedings are not
permissible at all. But
between these two extremes there is an area in which (as I see the
position) according to recognised practice
a choice between motion
proceedings and trial action is given according to whether there is
or is not an absence of
a
real dispute between
the parties on any material question of fact."
[9]
The present
application is for an illiquid claim for damages in the main action
for past medical expenses. There is a material dispute
as to whether
or not all the vouchers relate to the accident in question and in my
view the applicant should have simply set the
matter down for hearing
of the medical expenses issue. The applicant ought to have realised
from the very fact that medical expenses
were excluded from the
settlement agreement reached regarding other issues and that the
defendant was contesting the claim for
past medical expenses. It
ought therefore to have been clear to him that
viva
voce
evidence would
have to be led regarding the vouchers.
[10]
By proceeding to launch the application despite this set of facts the
applicant was exposing himself to the risk alluded to
in the Room
Hire case
(supra)
where it was stated
as follows (at p 1162):
"Or
the application may even be dismissed with costs, particularly when
the applicant should have realised when launching his
application
that
a
serious
dispute of fact was bound to develop. It is certainly not proper that
an applicant should commence proceedings by motion
with knowledge of
the probability of a protracted enquiry into disputed facts not
capable of easy ascertainment, but in the hope
of inducing the Court
to apply Rule 9 to what is essentially the subject of an ordinary
trial action."
[11]
The past medical expenses issue is already before the trial court and
this application merely duplicates an action which is
already ripe
for trial. A further possibility if the matter is dealt with by way
of motion proceedings would be to deprive the
respondent of its right
to call witnesses to refute the evidence brought by the applicant.
[12]
I hold the view as
submitted by the respondent's counsel that the application is an
abuse of court as the matter could have been
allocated a date in the
trial roll but the applicant chose to overburden the motion court
roll with this matter.
[13]
In the result I
make the following order:
ORDER:
The
application is dismissed with cost on an attorney and client scale.
____________________________
S.A.M.
BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Heard
on:
06 February 2017
For
the Applicant:
Advocate C.J.S. Kock
Instructed
by:
Van Zyl Le Roux Incorporated
For
the First
Respondent:
Advocate A. M. Masombuka
Instructed
by:
Matabane Incorporated