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[2016] ZAGPPHC 920
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Citha v Road Accident Fund (82352/2014) [2016] ZAGPPHC 920 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 8235212014
20/10/2016
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
SIZWE
CITHA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER
AJ
1.
This case involves a claim for damages for personal injuries
sustained by Sizwe Citha ("Citha"), the plaintiff, against
the Road Accident Fund ("the RAF"). Consequent upon a
collision on 1 December 2009, Citha, a pedestrian, was hit by an
unidentified motor vehicle, driven by an unknown driver. Citha
suffered an open fracture of the right tibia.
2.
The case was enrolled for trial on 17 October 2016 on both merits and
quantum. At inception of the hearing, I was asked to rule
whether it
was competent for the RAF to withdraw an offer made to Citha in terms
of Rule 34(1) and (5) of the Uniform Rules of
Court.
3.
The salient facts are as follows. On 14 October 2016, the RAF made an
offer, in writing, without prejudice, without admission
of liability,
and in full and final settlement of Citha's claims. On the merits, it
tendered an apportionment of 70/30 in Citha's
favour, it rejected the
claim for general damages, proposing its referral to the HPCSA, and
offered an undertaking for future medical
expenses. Costs on the
party and party scale were tendered. The offer was termed "Revised
offer of Settlement in terms of
Rule 34(1) and (5), ("the
offer").
4.
On 17 October 2016, prior to the matter coming before court, the
RAF's attorney served a notice of withdrawal of the offer. It
was
common cause that the offer was not accepted in writing before it was
withdrawn. At Court, post the withdrawal of same, Citha's
attorney
purported to orally accept the offer. This occurred on the premise
that the RAF was precluded by the provisions of Rule
34 from resiling
from same.
5.
The RAF's counsel argued that the offer was erroneously made, owing
to a genuine mistake on the apportionment of the merits hence
its
withdrawal. Citha's counsel did not controvert this assertion.
(Iinterpose to mention that it was not clear whether the RAF
had
authorized its attorney in writing to make
the
offer, this under Rule 34(1) of the Rules).
6.
In
Erasmus. Superior Court Practice, Volume
2
at
the commentary on Rule 34(6) at 01-447, the following is stated:
"This sub rule affords the
offeree a
spatlum deliberandi
whether or not to accept the
offer or tender and during that period the offerer is not entitled to
resile from the offer or tender.
It has, however, been suggested that
there may be "very exceptional cases" such as fraud,
genuine error or that no legal
basis exists for any claims by the
plaintiff against the defendant, in which the defendant may withdraw
its offer of settlement."
7.
On the subject of Rule 34(6), the Honourable Mr Justice Cameron made
the following comment in
Turbo Prop Service
Centre
CC
v Croock t/d Honest Air
1997 (4)
SA 758
CWJ
at
p764H·I:
"Although the reference by
Ogilvie-Thompson AJ in the Frenkel, Wise case to "very
exceptional"cases (for example,
fraud or genuine error), was
only a comment not forming part of the basis of his decision, it
seems sound to me to assume that
he was correct in envisioning that
such exceptions may exist In Ngwalangwala, Williamson JA likewise
envisaged (albeit in the period
after expiry of the stated period)
that, if the defendant could aver that the payment was made "under
a mistake of fact or
was induced by fraud or that no legal basis
exists for any claims at all by the plaintiff against him, "the
payment into Court
might be reclaimed".
8.
The judgment in
Nqwalangwala v Auto Protection Insurance
CO
Ltd (In Liquidation)
1965 (3)
SA
601A
dealt with payment into court under Rule 24, which was
subsequently superseded by Rule 34, but both Rules were based on
similar
principles concerning offers to settle.
9.
The ratio in
Frenkel. Wise
&
Co
Ltd v Cuthbert
1946 CPD 735
made it plain, and this
was approved in
Ngwalanqwala
(at p608 F-G), that "in
each case it is a matter for the discretion of the Court, to be
exercised according to the particular
relevant circumstances".
10.
In the exercise of my discretion, I have taken note of the fact that
Rule 34(6) does not express, in terms, the fact that an
offer made
thereunder is irrevocable for 15 days from the date it is made.
Moreover, it does not expressly prohibit the offeror
from withdrawing
same within the 15 day period. At common law, unless an offer is
expressly defined as irrevocable for a period
of time, it may be
revoked at any stage before acceptance. Vide
Christie's The law
of contract In South Africa 6
th
edition at page 54.
11.
In casu, it was established that the offer was withdrawn, before its
acceptance, owing to a genuine error. There was no suggestion
to the
contrary.
12.
Accordingly, in the light of the above, the following order was made:
12.1. the withdrawal, on 17 October
2016, by the defendant, of its Rule 34(1) and (5) offer dated 14
October 2016, was valid;
12.2. the plaintiff was directed to
pay the costs of the application to declare such withdrawal invalid.
13.
By way of postea, it merits mention that, on 17 October 2016, in
terms of a consent order the parties agreed on a merits apportionment
of 40/60 in favour of the plaintiff. An undertaking to pay 40% of the
plaintiff's future medical expenses was given. Quantum was
reserved
for determination at a later juncture. The defendant agreed to pay
the plaintiff's costs of trial.
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT
Date
Heard:
17 October 2016
For
the Plaintiffs:
Adv D Keet
Instructed
by:
TM Chauke Inc.
For
the Defendant:
Adv ZS Rasekgala
Instructed
by:
Du Toit Smuts & Mathews Phosa
Date
of Judgment:
18 October 2016