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[2017] ZAFSHC 210
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Hlalele v Road Accident Fund (5668/2016) [2017] ZAFSHC 210 (18 October 2017)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5668/2016
In
the matter between:
J.HLALELE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
THE EXPLANATORY AFFIDAVITS WERE
RECEIVED ON 31 JULY 2017
JUDGMENT
BY:
DAFFUE; J
DELIVERED
ON:
18
OCTOBER 2017
I
INTRODUCTION
[1]
The dispute between the parties, at least insofar as the merits are
concerned, has been settled. On the first day of the trial,
to wit 27
June 2017, I was requested to grant orders in accordance with a draft
order presented to me.
[2]
Paragraph 1 of the draft order is not contentious, but I declined to
make orders pertaining to costs as set out in paragraph
2 of the
draft.
[3]
The following orders were made by agreement:
"1.1 The issues of merits and
quantum are separated in terms of Rule 33(4) and that the issue of
quantum is postponed sine
die.
1.2 That the Defendant is liable to
pay 100% (one hundred percent) of the Plaintiff's proven or agreed
damages."
[4]
The following further orders were made to enable me to consider the
issue of costs for the reasons to be advanced later herein:
"2. Plaintiff is directed to
advance reasons under oath why he elected to make use of Pretoria
attorneys when the action was
instituted in the High Court in
Bloemfontein and also why this Court shall not order the claims
handlers at the RAF and Maduba
attorneys to pay his costs de bonis
propriis, jointly and severally, to the exclusion of the Road
Accident Fund.
3. Mr Jeje and the firm of Maduba
attorneys as well as the claims handlers, M. Lekolwana and I.M.
Chauke, are called upon to advance
reasons under oath why they
should not be ordered to pay plaintiff's costs de bonis propriis,
jointly and severally.
4. The affidavits required in
paragraphs 2 and 3 shall be served and filed not later than 31 July
2017."
Affidavits have now been received and
consequently I am in a position to consider what costs order to be
made. Unlike as reported
to me by Mr Jeje, the senior
litigation officer (also known as “senior claims’
handler”) that dealt with the
matter was not Mr Chauke, but Ms
Ledwaba who deposed to an affidavit in support of Mr Lekolwana's
version.
II
THE PARTIES
[5]
The plaintiff is Mr Jani Hlalele, identity number [7…],
a major male person residing at Senekal, Free State Province.
Ex facie the affidavit attached to his claim documents lodged with
the Road Accident Fund (“RAF”)
he
instructed Grimbeek, Van
Rooyen
and Partners in Kroonstad to assist him with the filing of his third
party claim against the RAF. Plaintiff also gave a power
of attorney
to the aforesaid firm and/or Van Zyl Le Roux Inc of Pretoria (also
known as VZLR) to take the necessary steps against
the RAF. VZLR
eventually issued summons out of the High Court in Bloemfontein by
making use of their local correspondents, Du Plooy
Attorneys.
Pretoria counsel appeared on behalf of plaintiff before me on 27 June
2017 when the aforesaid orders were made.
[6]
The RAF is a juristic person created in terms of
s 2(1)
of the
Road
Accident Fund Act, 56 of 1996
with registered office situated at
[...] I. S., Menlo Park, Pretoria, Gauteng.
Ill
THE COLLISION
[7]
There could never have been any doubt that during the early hours,
and at approximately 01H20 of 11 October 2014, a motor vehicle
collision occurred between two vehicles on the NS national road
between Bethlehem and Kestell, approximately 10 kilometres outside
Bethlehem, Free State Province.
[8]
The following motor vehicles were involved in the collision:
1. A motor vehicle with registration
number [F...] driven by Mr TC Mofokeng on which vehicle
plaintiff and several other people
were passengers, having been
transported at the back of a Tata bakkie.
2. A motor vehicle with registration
number [C...], it being stationary in the yellow lane, the driver
thereof being a certain Mr
KP Lephatsa.
[9]
The RAF did not have to believe the plaintiff's version relying on
all these details in his affidavit, but surely, there was
no reason
not to accept the information contained in the Accident Report (AR)
of the South African Police Service, prepared
and filled
out by Constable MK Moloi at 03H28 on 11 October 2014, which was
attached to plaintiff's claim documents. I have not
come across such
a detailed AR in many years and the constable should be complimented
for his quick response and thorough efforts.
[10]
The AR contains minute details of both drivers, their addresses,
identity numbers, telephone numbers, their vehicles' make
and
registration numbers and even license disk numbers.
The names and identity numbers of various passengers,
including the
plaintiff, as well as their addresses and telephone numbers are
reflected in the AR. The AR even reflects details
pertaining to the
registration number of the ambulance and the ambulance driver who
took the injured persons to the Dihlabeng Hospital
in Bethlehem. A
rough sketch was provided by the constable as well as a brief
description of the collision obtained from
the drivers which
description and rough sketch correspond 100% with the plaintiff's
affidavit and the averments in the particulars
of claim.
IV
NEGLIGENCE OF THE INSURED
DRIVER
[11]
Plaintiff alleged in his particulars claim that the collision was
caused as a result of the sole negligence of Mr Mofokeng,
the driver
of the Tata bakkie. It is unnecessary to set out the grounds of
negligence relied upon, but it was clearly averred that
Mr Mofokeng
failed to timeously observe the stationary vehicle in the yellow lane
and therefore negligently failed to avoid colliding
with
it.
V
THE DEFENDANT'S PLEA
[12]
What did the RAF's attorney do? As many (if not the majority) of
attorneys acting for the RAF (in particular the firm in casu)
have
been doing for a number of years, the RAF's attorney, Mr Jeje,
pleaded in vague and evasive terms. He merely admitted that
"on
the 11 October 2014 at N5 Road outside Betlehem, a motor vehicle
collision occurred." The particular collision and
all further
allegations pertaining to that collision were denied. In light of the
case law referred to infra and the documents
in his possession at the
time, he could not seriously believe that the plaintiff's version of
the collision was false and pleaded
as he did. This is not a
situation where the RAF did not have knowledge of the collision
and/or where the motor vehicle drivers
or independent witnesses gave
diametrically contradictory versions. In any event the plaintiff did
not cause the collision or contributed
thereto.
VI
UNPROFESSIONAL CONDUCT
[13]
It may amount to unprofessional conduct by the attorney who pleads to
factual averments without having been properly instructed
by his
client in that regard. See: Goodriche and Son v Auto Protection
Insurance Co Ltd (in liquidation)
1967 (2) SA 501
(WLD) at 503H &
5058 and also 506F; Law Society, Transvaal v Matthews
1989 (4) SA 389
(TPD) at 396 and Barlow Rank Ltd t/a Barlow Noordelike Masjienerie
Maatskappy v Lebos and Another
1985 (4) SA 341
(TPD) at 347E- 348G.
[14]
An attorney has a duty to report to his client when it is reasonable
and/or necessary and must at all time act subject to the
proper
instructions of his/her client. It is regarded as grossly negligent
not to notify a client of particular steps in the litigation
such as
the receipt of a notice of bar. See: Du Plessis v Tager
1953 (2) SA
275
(OPD) at 280. It is in my view equally grossly negligent of an
attorney not to inform his/her client timeously of a pre-trial
conference,
bearing in mind the purpose thereof, and a notice of set
down.
[15]
The duty in drafting pleadings is in essence the same for attorneys
and counsel; however, there might be a substantial difference
where
counsel does not get his information from the client, but from the
attorney. Counsel can presume that the attorney has sifted
the
evidential material and that proof of that which has been pleaded
will be forthcoming. On the other hand, the attorney drafts
his/her
pleadings on instructions of his/her clients. See: Findlay v Knight
1935 (AD) 58 at 73 where Wessels CJ said the following:
"When, however the second plea
was filed, Findlay had obtained so much information that he knew or
ought to know that he would
not be in a position to lay evidence
before the Court to support the more serious charges contained in the
second plea. When he
drew the second plea he did not know whether the
charges were true or false and whether there was or was not evidence
to support
them. He made them recklessly, careless of the
consequences. This the Court cannot allow an attorney to do."
Morris,
Technique in Litigation, 6th ed. by John Mullins and Carlos Da Silva
at 28 explains the duty of legal practitioners' disclosure
to
the court as follows, relying on the
judgment of Nugent JA in Van der Berg v General
Council of the Bar of
South Africa
[2007] 2 All SA 499
(SCA) at paras [14] - [16]:
"Off course, it is not the duty
of either counsel or attorney to mistrust his client, let alone to
act as some sort of guardian
of the truth either by disclosing to the
court or his opponent his doubts about his client's virtues, or by
preventing his
client from testifying
to that version, no matter how
improbable the counsel or
attorney might view it as being. The
dividing line is reached when he no longer suspects. but knows
as a fact and not merely
as a matter of belief that the version is
false (either because the client has admitted this to him, or because
he has come across
incontrovertible evidence which undoubtedly
disproves his client's version)." (emphasis added)
[16]
Rule 18(5) of the Uniform Rules of Court clearly stipulates that when
a "party denies an allegation of fact in the previous
pleading
of the opposite party, he shall not do so evasively, but shall answer
the point of substance." See also Rule 22(2).
It is uncertain
which collision the attorney referred to. There is no admission that
the two vehicles referred to by plaintiff
were involved in the
collision or that plaintiff was a passenger in one of them. Is this
really what the attorney (and by necessary
implication the RAF)
wanted to convey, bearing in mind the objective documentary evidence
placed in their possession?
VII
THE RAF'S POWERS AND
FUNCTIONS
[17]
The powers and functions of the RAF include those set out in s 4
of the Road Accident Fund Act, 56 of 1996 (“the
Act”),
and inter alia contained ins 4(1)(b):
"the investigation and settling,
subject to this Act, of claims arising from loss or damage caused by
the driving of a motor
vehicle whether or not the identity of the
owner or driver thereof, or the identity of both the owner and driver
thereof, has been
established;"
[18]
The procedure for filing a claim for compensation and accompanying
medical report under s 17(1) of the Act is set out in s
24.
Subsection 24(5) reads as follows:
"If the Fund or the agent does
not, within 60 days from the date on which a claim was sent by
registered post or delivered
by hand to the Fund or such agent as
contemplated in subsection (1), object to the validity thereof, the
claim shall be deemed
to be valid in all respects."
Subsection
24(6) reads as follows:
"No claim shall be enforceable by
legal proceedings commenced by a summons served on the Fund or an
agent -
(a) before the expiry of a
period of 120 days from the date on which the claim was
sent or delivered by hand to
the Fund or the agent as contemplated in
subsection (1); and
(b) before all requirements
contemplated in section 19(f) have been complied with:
Provided that if the Fund or the agent
repudiates in writing liability for the claim before the expiry of
the said period, the third
party may at any time after such
repudiation serve summons on the Fund or the agent, as
the
case may be."
[19]
It follows from the provisions of ss 4 and 24 that the RAF and its
personnel cannot just sit and relax after having received
a claim for
compensation. They are under a duty to investigate and if required to
settle a claim lodged with the RAF.
VIII
EVALUATION OF THE EVIDENCE
[20]
I received affidavits from Mr Jeje of Maduba Attorneys, (the panel
attorneys). the litigation officers of the RAF, Mr Lekolwana
and Ms
Ledwaba, and Mr Grimbeek of VZLR. No affidavit was received from
plaintiff notwithstanding my directive.
[21]
It is apparent that the litigation officers of the RAF blame their
own attorney, whilst Mr Jeje wants to put blame on the RAF
for not
giving him proper instructions. I decided not to embark upon a
process of evaluation of the evidence in order to ascertain
who is
speaking the truth and who is lying, but shall consider the
weaknesses of the responses and dearth of concrete explanations
in
order to establish whether it is required that costs orders de bonis
propriis shall be made in casu. However, I trust that this
judgment
will be circulated as widely as possible to enable relevant role
players to take appropriate measures in order to address
the
inefficient system being utilized by the RAF and its attorneys.
Although I make a general observation, it should not be regarded
as
applicable to each and every office of the RAF, each and every
attorney instructed by the RAF and each and every litigation
officer
employed by the RAF. I have reason to believe that there are many
people that do their work properly in order to serve
the interest of
the RAF and the public at large.
[22]
The following is a chronological sequence of the events from filing
of the claim until the first day of trial:
1. On 1 July 2016 the
claim, with all relevant documents including the AR and plaintiff's
detailed affidavit was received
by the RAF at its Head Office in
Menlo Park, Pretoria.
2. Two and half
months later, i.e. on 14 September 2016, a
certain Kathleen Makoro of the RAF
responded for the first time and indicated to plaintiff's attorneys
that it objected to the validity
of the claim on the basis that the
"SMR (was) not completed by the first treating doctor."
However, the attorney was
informed that the file would be transferred
to the merits section.
3. Although it is alleged by Ms
Ledwaba that "the matter was continuously assessed pertaining to
the information at the
disposal of the RAF” nothing of
substance occurred. I am not prepared to accept such a general, but
hollow statement. I have
not been told when she was appointed as
senior litigation officer over this matter and precisely what she
did. We know that the
matter was referred to the RAF's Forensic
Investigation Department in Johannesburg, but what transpired there
is a secret.
If fraud was suspected, the matter could have
been solved easily and within a day or two, bearing in mind the
detailed information
contained in the AR. On Mr Lekolwana's version
the file was sent to this department on 15 May 2017, but it is a
secret who did
this. Initially the file was with the Originating
Department. Until when, we do not know. It begs the question where
the file was
kept all the time before it was sent to the Forensic
Investigation Department. On Mr Lekolwana's version, he as the most
important
person in charge of giving instructions and communicating
with the RAF's attorneys, never saw this file until it eventually
landed
on his desk on 21 July 2017, nearly a month after the RAF
conceded liability.
4. Plaintiff's attorneys
issued summons on 22 November 2016 and service was effected at Head
Office on 29 November 2016.
Maduba attorneys received instructions
from the RAF on 29 November 2016 to defend the matter which was duly
done.
5. No doubt, the attorneys did
not receive copies of the claim documents as Mr Lekolwana was not
even in possession of the
RAF's file. The file was sent to the
Forensic Investigation Department and the RAF's head office received
it back on 28 June 2017,
a day after the merits have been conceded.
The actual file arrived at Mr Lekolwana's desk on 21 July 2017. There
is no indication
on what basis the claim had to be defended. Mr
Lekolwana, who was in charge of the matter in terms of what he says
is "an
electronically managed system,'' initially believed that
the RAF file was with the Forensic Investigation Department in
Pretoria.
He established at a later stage that it
was in Johannesburg, but notwithstanding
requests that the file be returned to him, he obtained it only after
throwing in the towel on 27 June 2017. This is a highly questionable
state of affairs. If Mr Lekolwana is to be believed, there was no
communication between him and anyone at the Forensic Investigation
Department or any other department for that matter since the matter
was allocated to him in December 2016.
6. Meanwhile, on 2 December 2016
Mr Jeje sent an email to the claims officer at RAF, one Awelani
Rambuwani, requesting the
so-called "lodgment documents" or
"file contents" which can be none other than the
plaintiff's claim with supporting
documents. I must accept that this
person caused the instructions to defend to be issued to Maduba
Attorneys, but it is not clear.
On Mr Lekolwana's version, the matter
was allocated to him on 22 December 2016 and thus after the
instructions to the attorneys
to defend. He must have informed Mr
Jeje of his appointment as litigation officer of this particular
matter at a stage, bearing
in mind that at least four emails
were sent to Mr Lekolwana at the address: […]raf.co.za. All
the time Mr Jeje requested
the "file contents". Later on
the RAF was informed per email on three occasions of the imminent
trial date. The RAF did
not place Maduba Attorneys in possession of
any documents pertaining to this claim. It did not instruct its
attorneys fully. They
did not know what to do, save to defend the
matter. In fact, this is nothing but delaying tactics.
7. When Mr Jeje received a
notice of bar on 24 January 2017, he apparently did not even inform
the RAF, but decided
to file a plea the next day, i.e. 25 January
2017. On his own admission he did this without having any
instructions in that
regard and in particular as to what the RAF's
instructions were pertaining to the collision, the alleged
negligence, plaintiffs
injuries and the quantum of the claim.
This explains the wording of the plea.
8. As mentioned, several
further emails were sent by Maduba Attorneys to the RAF, which were
also copied to Mr Albert
Cilliers, a person stationed in Bloemfontein
and employed by the RAF to assist Maduba Attorneys, the only
Bloemfontein firm of
attorneys on its panel, requesting the
plaintiffs claim documents, but without any success.
9. The parties held a Rule
37 conference on 3 March 2017, but it was one of those meaningless
conferences that are often
encountered. Nothing of substance was
discussed and/or agreed upon, save that merits and quantum should be
separated. On 20 March
2017 the same legal representatives of the
parties, Ms Kotze on behalf of plaintiff and Mr Jeje on behalf of the
RAF, attended
a pre-trial conference in terms of Rule 37(8) presided
over by a judge of this Division. The matter was certified to be
trial-ready
in respect of the merits of the claim and three court
days were allocated. The parties' legal representatives should
have
realized that, given the simplicity of facts in casu, the matter
could have been finalized, even if defended, within
a
day. Bearing in mind the contents of the emails attached to his
affidavit, Mr Jeje did not even inform the RAF of any of the
two
pre-trial conferences in order to obtain instructions pertaining to
settlement or making admissions.
10. On 24 March 2017
plaintiffs attorneys set the matter down for hearing on 27, 28
and 30 June 2017. On
even date a legal secretary of Maduba Attorneys
emailed the notice to Messrs Jeje, Lekolwana and Cilliers. Ex facie
the email it
was read by Mr Jeje on the same day, but there is no
proof that it was read by Messrs Lekolwana and Cilliers. I have
reason to
believe that Mr Lekolwana's email address is correct
in that I have proof that he read at least the one email dated 29
March
2017, insisting that the file contents be provided, as well as
the email relied upon by him as annexure MJ5 to his affidavit. Mr
Cilliers has been assisting Maduba Attorneys over an extended period
of time and I can think of no reason why Maduba Attorneys
would not
have his correct email address.
11. On 12 June 2017
Maduba Attorneys received plaintiffs claim documents from the
plaintiffs Bloemfontein correspondent.
These were exactly the same
documents attached to the Rule 36(4) notice as well as the claim
originally filed with the RAF
on 1 July 2016. Hereafter Mr Jeje
provided the RAF with a legal opinion in an email dated 19 June 2017,
advising them to fully
concede the merits.
12. On 26 June 2017
Mr Lekolwana, without being in possession of the RAF's file,
instructed Maduba Attorneys to
concede the merits, or put in other
words, to throw in the towel. This was a day before the hearing was
to start. Mr Jeje's attitude
is that the RAF could have conceded
merits much earlier as it was always in possession of the file
contents and information pertaining
to plaintiffs claim.
I agree, but in the same breath, he could have informed
his client in January 2017
that the merits appeared to be
indefensible and advised to settle.
[23]
Ms Ledwaba states that the RAF relies on its panel attorneys to
provide it with documents served on their offices within 5
days. She
then blames Maduba Attorneys for not providing the RAF with the
"lodgment documents" allegedly contained
in plaintiff's
response to the RAF's Rule 36(4) notice which was served on the panel
attorneys on 10 January 2017. No doubt, Ms
Ledwaba is correct. Maduba
Attorneys were in fact provided with all relevant documents as part
of plaintiff's reply to the RAF's
notice in terms of Rule 36(4), i.e.
several days before Mr Jeje eventually pleaded as mentioned. I find
it extremely difficult
to believe that Mr Jeje could not have
ascertained from plaintiff's response in terms of Rule 36(4) what
really caused the collision.
Plainiff's supporting documents,
attached to its claim for compensation lodged with RAF, were served
in response to the aforesaid
notice. Obviously, plaintiff went much
further than required by Rule 36(4) which rule requires a party
claiming damages or compensation
for bodily injuries, to make
available medical reports, hospital records, etc, to enable the other
party to assess his/her damages.
In casu plaintiff attached exactly
the same documents filed with the RAF on 1 July 2016 when the claim
was lodged. This included
medical and hospital records and the
AR. These are the documents which the RAF should have presented to
its attorneys in the first
place when instructions were issued. I
would have expected the litigation officer, Mr Lekolwana, to be in
possession of the very
same documents so that he could give
meaningful instructions on what basis to defend,
if at all and/or
to plead and/or
to prepare for trial. I find it extremely disturbing that the RAF is
accusing its attorneys for
not providing it with the documents
received from the plaintiff in accordance with the Rule 36(4) notice
whilst these are the very
same documents that the RAF received on 1
July 2016 when the claim was lodged and which it should have provided
to its attorneys
when instructions were given to defend the matter.
[24]
Both Ms Ledwaba and Mr Lekolwana refer to the continuous assessment
of the claim by the RAF without explaining what precisely
was done.
In my view nothing of substance was done in order to investigate with
the purpose either settle the claim, or prepare
to defend it to its
logical conclusion. Mr Lekolwana's statements that "the matter
was attended to in a diligent manner and
was a thorough assessment
done by the RAF before, during and after institution of the action in
this Court" and "I can
indubitably state that the RAF
started assessing Plaintiff's claim since the moment of lodgement,"
are not accepted based
on the information made available to me.
[25]
Mr Jeje should have been aware of the fact that the RAF was
confronted with a passenger's claim and that plaintiff needed to
prove the proverbial 1% negligence only in order to succeed with his
claim on the merits. I would have expected an urgent telephonic
conference between him and Mr Lekolwana at an early stage, followed
up by consultations with the SAPS constable who prepared the
AR, and
if need be, the ambulance driver and a responsible employee of the
hospital where plaintiff was allegedly hospitalized.
The attorney
could obtain instructions to undertake such simple
exercise and report to the
RAF. Apparently
the Forensic Investigation Department of the RAF was requested in May
2017 only to investigate. If there was really
a need for such
investigation, which has not been suggested at all, such
investigation should have taken place before institution
of the
action and not a month before the trial. Justice is not done to
the RAF and/or the tax paying public at large if the
RAF and its
panel attorneys are accusing each other of apparent ignorance,
negligence and/or a lack of understanding of the RAF's
own
procedures, the law and litigation in particular.
[26]
Plaintiff's Pretoria attorney, Mr JB Grimbeek, decided against filing
an affidavit by the plaintiff notwithstanding my directive.
His firm
acts as correspondent for many firms of attorneys, bearing in mind
that the RAF's head office is situated in Pretoria.
The firm also
acts as correspondent for Grimbeek, Van Rooyen and Partners of
Kroonstad who instructed VZLR in casu. VZLR in turn
instructed
Bloemfontein attorneys, to wit Du Plooy Attorneys.
[27]
Having been confronted with the congested court roll in Pretoria,
particularly as a result of personal injury (RAF) claims,
his firm
decided to investigate what was the situation in other divisions.
He ascertained that trial dates could be obtained
in the Free State
High Court within three to four months whilst the waiting period in
Pretoria was between twelve and fifteen months
in respect of merits,
and much longer for quantum trials.
[28]
There can be no objection if a client from Pretoria instructs
Pretoria attorneys to issue summons against the RAF who then
institutes action in the Free State High Court because the cause of
action arose in the Free State, bearing in mind the alleged
congested
court roll in Pretoria and the overall convenience to have a matter
heard in the jurisdictional area where the cause
of action
originated. Surely, this court has to adjudicate disputes arising
within its jurisdiction, but this is not the issue
that concerns me.
I am concerned with the payment by the RAF of unnecessary costs as
will be explained in the next paragraph.
[29]
Two sets of attorneys will normally be entitled to fees in a case as
here where the plaintiff resides in Senekal, a small town
about 170
kilometres from Bloemfontein and action has to be instituted in the
High Court. It cannot be expected of plaintiff to
directly instruct a
Bloemfontein attorney. For a reason unknown to me plaintiff decided
not to instruct one of the local attorneys
in Senekal, but a
Kroonstad attorney. Here, three firms of attorneys are involved and
counsel from Pretoria was briefed. If this
is what the plaintiff
wanted, neither the court, nor the taxing master has any say, unless
plaintiff seeks to claim all these extra
costs (that could have been
avoided) on a party and party scale. Plaintiff's attorney and client
bill of costs is entirely a matter
between him and his attorneys, but
plaintiff shall not be allowed to claim from the RAF, and in essence
the public purse, fees
and expenses of three sets of attorneys and
travelling and accommodation costs of counsel from out of town,
whilst there are ample
and efficient counsel at the local bar.
[30]
In casu plaintiff shall be entitled to have the bills of costs
of two sets of attorneys taxed. However, it would
have been an
entirely different matter if plaintiff was resident in
Bloemfontein or within its district and the
same scenario
was repeated. The fees and expenses of one set of attorneys should be
allowed in such a case.
[31]
Mr Grimbeek indicated that plaintiff is not seeking costs de bonis
propriis from the litigation officers and/or the RAF's attorney,
but
left the decision for the court to make.
[32]
The system at the RAF should be investigated and much better
management practices shall be implemented. It is incomprehensible
that a litigation officer, without being placed in possession of a
file containing the claim documents, is instructed to handle
a claim
in order to instruct attorneys, communicate with them, and eventually
oversee that all pre-trial processes are conducted
to get the matter
trial-ready to ensure that the trial runs its normal course or to
give instructions to settle. The two
litigation officers
were not prepared to accept responsibility. They are quick to put
blame on the attorney, but what transpired
in the RAF's offices,
prior to and when the matter should have been under their control,
remains a mystery. We have not been told
why it was necessary that an
apparently straightforward claim had to be referred to the Forensic
Investigation Department, and
more importantly, what this department
did to carry out the RAF's mandate. Fraud is indeed a worrisome
matter and no doubt, the
RAF must ensure that fraudulent claims be
traced and dealt with. It is laudable that the RAF tries to do
whatever is needed to
eradicate false claims, but in casu no need was
shown for such action. The outcome of any delayed action that might
have been taken
is a secret. The
information available to me does not indicate
that
whoever was tasked to do whatever, did in fact contribute
positively to the challenges faced by the RAF.
[33]
From my experience on a weekly basis when allocated civil trials, the
RAF seldom challenges the evidence of plaintiffs on the
merits. A
small percentage of the twelve to fifteen RAF cases set down for
hearing on a weekly basis in this Division proceeds
to trial.
Obviously, in passenger claims it is difficult to successfully defend
a claim for the reason mentioned supra, but then,
such matters should
proceed to trial on rare occasions only; by far the majority must be
settled even before action is instituted.
Unnecessary legal costs can
be avoided. On the other hand, the RAF seldom investigates claims
properly and its legal teams are
often not in a position to proceed
to trial in matters not involving the so-called 1% cases. Mostly, the
RAF's legal teams come
to court, not to settle, but to throw in the
proverbial towel. In the majority of cases the outcome can be
predicted: the merits
are Settled 100% in
favour of the plaintiff. Witnesses are
not
subpoenaed
and counsel (if one is appointed) is not instructed to conduct a
defended trial, but receives instructions in respect
of settlement
only. To make matters worse, the court is often asked to stand
matters down as the litigation officer cannot be contacted
in order
to give instructions to settle. Judges are even requested to stand
matters down to the next day or even a third day. In
the meantime
legal costs soar.
[34]
My personal experience is that, notwithstanding possible good
intentions of RAF's senior management, the overall system is
such
that it cannot be tolerated much longer. I accept
that the RAF is flooded with claims,
but
this country cannot afford the wasting
of resources. It is not for the courts to prescribe to
a litigant how
it should run its business1 but serious reconsideration
must take place. It is general knowledge, but
Mr Grimbeek confirms in
his affidavit that the situation in Pretoria pertaining to congested
rolls is much gloomier than in the
Free State.
[35]
I considered all relevant aspects, but
decided against awarding costs de bonis propriis.
However, this is a borderline case and the attorney and
litigation officers will be given the benefit of doubt who
really to be blamed for the handling of the case. One aspect that
weighs heavily in favour of not granting punitive costs is the
speed
with which this matter was finalised. Unlike some matters that are
dragged out for years, the merits were conceded within
a year from
filing of plaintiffs claim.
IX
ORDER
[36]
Consequently the following order is made:
(1)
The defendant shall pay plaintiff's taxed or agreed costs up and
until 27 June 2017 in respect of VZLR, Pretoria and Du Plooy
Attorneys, Bloemfontein, such costs to include counsel's fee for
preparation and his day feel but excluding his travelling and
accommodation costs.
_________________
JP
DAFFUE, J
On
behalf of plaintiff:
Adv KW Van Heerden
Instructed
by:
VZLR Inc
c/o Du Plooy Attorneys,
Bloemfontein
On
behalf of defendant:
Mr A Jeje
Instructed
by:
Maduba Attorneys
Bloemfontein