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[2016] ZAGPPHC 776
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RAF v Alemayehu (72204/2014) [2016] ZAGPPHC 776 (26 August 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 72204/2014
26/8/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
ROAD
ACCIDENT
FUND
Defendant/Applicant
and
ALI,
ALEMAYEHU
Plaintiff/Respondent
(Passport
No: …)
JUDGMENT
HF
JACOBS, AJ:
[1]
In this application the Road Accident Fund ("the Fund")
applies for the rescission of a default judgment granted by
Potterill
J on 24 February 2015. When the matter was called there was
appearance on behalf of the Fund but no heads of argument,
practice
note or replying affidavit was filed. With my consent the Fund filed
a replying affidavit, practice note and heads of
argument later the
week and the matter was argued late Thursday afternoon, all with the
consent of the respondent's counsel. The
respondent challenged the
deponent to the Fund's founding affidavit's authority to represent
the Fund in these proceedings. Mr
Smit, appearing on behalf of the
Fund, correctly in my view conceded that the deponent failed to prove
her authority to represent
the Fund. In the replying affidavit
(deposed to by a person other than the person who deposed to the
Fund's founding affidavit)
did not remedy the Fund's application in
that respect.
[2]
However, it was submitted on behalf of the Fund, that the order of
Potterill J was granted in error where it reads
[1]
"That
default judgment
be
and is
hereby granted in favour of the applicant against the respondent in
respect of the merits of the action on the basis that
the applicant
is entitled to recover
100% of
his proven or agreed damages, resulting from the collision which
occurred on 14 May 2011".
Mr
Smit on behalf of the Fund draw my attention to a judgment such as
Road
Accident Fund v Duma
and
three similar cases,
2013 (6) SA 9
(SCA) and
Pithey
v Road Accident Fund
2014
(4) SA 112
(SCA) where it was held that the
Road Accident Fund Act 56
of 1996
limits the Fund's obligation to compensate third parties for
general damages (non pecuniary loss) to those instances in which
a claimant has suffered
"serious
injury"
and
that no objective standard for deciding on the seriousness of the
injuries contained in the Act and that assessment thereof
should be
made by a medical practitioner on the basis of the method prescribed
by
Regulation 3
of the Regulations made under the Act.
[3]
On authority of the aforementioned judgments it was submitted on
behalf of the Fund that, regardless the inadequacies of its
founding
papers in the application for rescission of judgment, the judgment
should in any event be rescinded.
[4]
In his particulars of claim the respondent claims payment of,
inter
a/ia,
general damages.
[5]
Having regard to the contents of the respondent's particulars of
claim the order granted in his favour by reason of the Fund's
default
included general damages. Such an award is invalid on authority of
Duma.
[2]
There
is nothing to indicate that the respondent submitted himself to an
assessment as contemplated by
Regulation 3(1)(a)
of the Regulations
promulgated in terms of Act 56 of 1996. There is nothing to suggest
and it was not alleged on behalf of the
respondent that Regulation
3(3) had been complied with before the date of default judgment. Had
the respondent brought that aspect
to the attention of Potterill J
the judge would not have granted an order allowing him to be entitled
for 100% of the damages claimed
by him in his particulars of claim.
[6]
Under the circumstances I cannot but conclude that the order of 26
February 2015 was erroneously granted in the absence of the
applicant
and should be rescinded in terms of Rule 42(1)(a).
[7]
The current state of affairs including the late filing of its
replying affidavit is the result of the conduct of the applicant.
Had
the applicant performed its statutory obligations to handle and
manage the claim instituted by the respondent this application
would
not have been necessary. In my view the applicant should be ordered
to pay the costs of this application.
I
make the following order:
1. The judgment granted
by Madam Justice Potterill on 26 February 2015 against the Road
Accident Fund is rescinded; and
2. The Road Accident Fund
is ordered to pay the costs of this application for rescission.
_____________________
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
Date:
23 August 2016
[1]
See par 1 of the order dated 26 February 2015.
[2]
Road Accident Fund v Duma & three similar cases
2013 (6) SA 9
(SCA).