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[2015] ZAGPPHC 308
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Ketsekele v Road Accident Fund (32492/12) [2015] ZAGPPHC 308; 2015 (4) SA 178 (GP) (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISION, PRETORIA
Case No: 32492/12
Date: 8 May 2015
Reportable
Of interest to
other judges
In the matter
between:
SANDI WELCOME
KETSEKELE
...................................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
..............................................................................................................
Defendant
JUDGMENT
1. The plaintiff is
Mr Sandi Welcome Ketsekele, a truck driver aged 54 years at the time
of the accident that lead to the present
litigation, currently
residing at 265 Mofokeng Section, Katlehong, Gauteng.
2. The defendant is
the Road Accident Fund, a juristic person established by the
Road
Accident Fund Act 56 of 1996
, as amended, (“the Act”),
with principal place of business at 38 Ida Street, Menlo Park,
Pretoria. The defendant is
responsible for and obliged to compensate
victims of motor vehicle accidents for damages suffered as a result
of the negligence
of drivers other than themselves.
3. The plaintiff was
involved in a collision with his employer's truck on the 28th January
2009 on the R 21 highway near the Pomona
off ramp in Kempton Park. He
suffered an injury that was described in the RAF 4 form completed by
dr. Elmo van Wyk almost five
years later as a fracture of the 4th and
5th metacarpals of the right hand. (The orthopaedic surgeon
instructed by the plaintiff’s
attorneys to provide a
medico-legal report on the 3
rd
September 2014 described
the injury as a fragmented fracture of the little finger only). The
fifth metacarpal required a surgical
insertion of a prothesis of the
fifth carpa-phangal joint, in other words a replacement of the joint
of the right little finger
to the hand. The little finger was left
deformed at a 20 degree deviation from the hand. Mr Ketsekele
returned to work within three
months of the accident, obviously
capable of driving a truck as efficiently as before.
4. There is no
indication in the papers that he suffered any other consequences of
this injury since the accident. He has had to
give up his profession
for reasons unrelated to the accident some three years ago. As was
patently obvious, and as was confirmed
by dr Van Wyk in the RAF 4
form, the injury suffered by the plaintiff - for such Mr Ketsekele
was destined to become -could by
no stretch of the imagination be
described as serious as defined by the
Road Accident Fund Act and
regulations. Common sense dictates that a stabilized fracture of the
little finger that healed without significant complications
is a
minor mishap. There never existed any prospect of instituting a
successful claim for general damages in terms of the AMA Guides
or
any narrative test, the yardsticks prescribed by the regulations to
the
Road Accident Fund Act 56 of 1996
.
5.
Nonetheless action was instituted against the defendant (“the
Fund”) during June 2012, some three years after the
accident,
after the plaintiff’s condition had indisputably stabilized.
The first version of the particulars of claim alleged
that a serious
injury was suffered by the plaintiff, such injury being described as
a
‘
compound
fracture of the right hand.'
6. This was an
overstatement. The fracture was restricted to one or two fingers, as
set out above.
7. The consequences
of the injury were described in the particulars of claim as follows:
‘
.1
The Plaintiff was hospitalized and underwent physiotherapy as well as
medical treatment;
.2 The Plaintiff
will have to be hospitalized and undergo physiotherapy as well as
medical treatment in the future;
.3 The Plaintiff
has in the past and will continue in the future to suffer a loss of
income ALTERNATIVELY the Plaintiff suffered
from a loss of ability to
earn and will in the future suffer from a loss of ability to earn.
.4 The Plaintiff
experienced pain, discomfort and suffering and will in the future
also experience pain, discomfort and suffering.
.5 The Plaintiff
suffered from emotional shock and trauma and will in the future also
suffer from emotional shock and trauma.
.6 The Plaintiff
suffered from a loss of the joy and enjoyment of life and will in the
future suffer from a loss of the joy and
enjoyment of life. ’
8. It should be
underlined immediately that there is no suggestion of any
hospitalisation or physiotherapy having been required
since the
injury to the little finger healed; and no evidence of a future loss
of income or a loss of the ability to earn that
could be ascribed to
the consequences of the accident.
9.
Continuing the somewhat fanciful saga of a major injury, the
particulars of claim assert that the plaintiff suffered past medical
and hospital expenses in the sum of R 100 000, 00, coupled with a
cautionary statement that this figure is a mere estimate of the
expenses the plaintiff incurred to date,
regard
being had to the tariff as contemplated in
sections 17(4)(a)
and
17
(4B) of the Act and the regulations referred to therein.’
Future
medical and hospital expenses were estimated subject to the same
cautionary remark at R 150 000, 00; future loss of earnings
were said
to run to R 250 000, 00, similarly made subject to the cautionary
statement, and past loss of earnings to R 50 000, 00.
These sums
added up to R 550 000, 00.
10.The manner in
which the compensation payable by the defendant is calculated was
changed in important respects by the amendment
of the
Road Accident
Fund Act through
the substitution of
section 17
thereof, which
amendment came into effect in 2008. The section now reads:
17.
(1)
The Fund or an agent shall-
(a) subject to
this Act, in the case of a ciaim for compensation under this section
arising from the driving of a motor vehicle
where the identity of the
owner or the driver thereof has been established;
(b) subject to
any regulation made under
section 26
, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle where the identity of neither
the owner nor the driver
thereof has been established, be obliged to compensate any person
(the third party) for any loss or damage
which the third party has
suffered as a result of any bodily injury to himself or herself or
the death of or any bodily injury
to any other person, caused by or
arising from the driving of a motor vehicle by any person at any
place within the Republic, if
the injury or death is due to the
negligence or other wrongful act of the driver or of the owner of the
motor vehicle or of his
or her employee in the performance of the
employee’s duties as employee: Provided that the obligation of
the Fund to compensate
a third party for non-pecuniary loss shall be
limited to compensation for a serious injury as contemplated in
subsection (1A) and
shall be paid by way of a lump sum.
(1A) (a)
Assessment of a serious injury shall be based on a prescribed method
adopted after consultation with medical service providers
and shall
be reasonable in ensuring that injuries are assessed in relation to
the circumstances of the third party,
(b) The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act, 1974 (Act
No. 56 of 1974).
(
2
)
...
(3) (a) No
interest calculated on the amount of any compensation which a court
awards to any third party by virtue of the provisions
of subsection
(1) shall be payable unless 14 days have elapsed from the date of the
court’s relevant order.
(b)
In issuing any order as to costs on making such award, the court may
take into consideration any written offer, including a
written offer
without prejudice in the course of settlement negotiations, in
settlement of the claim concerned, made by the Fund
or an agent
before the relevant summons
was
served.
(4) Where a claim
for compensation under subsection (1)-
(a)
includes
a
claim for the
costs of the future accommodation of any person in a hospital or
nursing home or treatment of or rendering of a service
or supplying
of goods to him or her, the Fund or an agent shall be entitled, after
furnishing the third party concerned with an
undertaking to that
effect or a competent court has directed the Fund or the agent to
furnish such undertaking, to compensate-
(i) the third
party in respect of the said costs after the costs have been incurred
and on proof thereof; or
(ii) the provider
of such service or treatment directly, notwithstanding section 19(c)
or (d),in accordance with the tariff contemplated
in subsection (4B);
(b)
includes a claim for future loss of income or support, the amount
payable by the Fund or the agent shall be paid by way of
a
lump sum or in
instalments as agreed upon;
(c) includes a
claim for loss of income or support, the annual loss, irrespective of
the actual loss, shall be proportionately calculated
to an amount not
exceeding-
(i) R160 000 per
year in the case of a claim for loss of income; and
(ii) R160 000 per
year, in respect of each deceased breadwinner, in the case of a claim
for loss of support.
(4A) (a) The Fund
shall, by notice in the Gazette, adjust the amounts referred to in
subsection (4)(c) quarterly, in order to counter
the effect of
inflation.
(b) In respect of
any claim for loss of income or support the amounts adjusted in terms
of paragraph (a) shall be the amounts set
out in the last notice
issued prior to the date on which the cause of action arose.
(4B) (a) The
liability of the Fund or an agent regarding any tariff contemplated
in subsections (4)(a), (5) and (6) shall be based
on the tariffs for
health services provided by public health establishments contemplated
in the National Health Act, 2003 (Act
No. 61 of 2003), and shall be
prescribed after consultation with the Minister of Health.
(b) The tariff
for emergency medical treatment provided by a health care provider
contemplated in the National Health Act, 2003-
(i) shall be
negotiated between the Fund and such health care providers; and
(ii) shall be
reasonable taking into account factors such as the cost of such
treatment and the ability of the Fund to pay.
(c) In the
absence of a tariff for emergency medical treatment the tariffs
contemplated in paragraph (a) shall apply.
(5) Where a third
party is entitled to compensation in terms of this section and has
incurred costs in respect of accommodation
of himself or herself or
any other person in a hospital or nursing home or the treatment of or
any service rendered or goods supplied
to himself or herself or any
other person, the person who provided the accommodation or treatment
or rendered the service or supplied
the goods (the supplier) may,
notwithstanding section 19(c) or (d), claim an amount in accordance
with the tariff contemplated
in subsection (4B) direct from the Fund
or an agent on a prescribed form, and such claim shall be subject,
mutatis mutandis, to
the provisions applicable to the claim of the
third party concerned, and may not exceed the amount which the third
party could,
but for this subsection, have recovered.
(6) The Fund, or
an agent with the approval of the Fund, may make an interim payment
to the third party out of the amount to be
awarded in terms of
subsection (1) to the third party in respect of medical costs, in
accordance with the tariff contemplated in
subsection (4B), loss of
income and loss of support: Provided that the Fund or such agent
shall, notwithstanding anything to the
contrary in any law contained,
only be liable to make an interim payment in so far as such costs
have already been incurred and
any such losses have already been
suffered.'
11 .Apparently
mindful of this amendment in the Act, the plaintiff’s legal
advisors decided to amend the particulars of claim
to keep up the
assertion that a serious injury had been suffered. This amendment was
served upon the defendant’s attorneys
on the 27
th
January 2014. It amended the reference to the identity of the doctor
who had examined the plaintiff and had prepared the medical
report
included in the RAF 1 form when the claim was delivered to the
defendant.
12.The
damages claimed were amended by the inclusion of a further assertion
that the plaintiff was entitled to general damages,
which were pegged
at R 350 000, 00. This additional sum was also pleaded to be an
estimate and was accompanied by the allegation
that Dr Elmo van Wyk
had completed an RAF 4 form and had therein estimated the plaintiff’s
whole person impairment to be
at “
...1%
or more.’
This
form was signed on the 5
th
December 2013. (It should be noted in passing that these allegations
are
prima facie
excipiable,
but the Fund’s legal representatives did not challenge the
assertion that a serious injury was constituted by
a whole person
impairment assessment far below the statutory threshold.)
13.
In
Road Accident
Fund v Faria
2014
(6) SA 19
(SCA);
(4 All SA 148
(SCA)) Willis JA writing for an
unanimous court described the test that has to be met since the
Road
Accident Fund Act and
its regulations were amended as follows:
‘
[26]
In terms of s 17(1) of the Act, after its amendment, a third party
(ie person in the position of the plaintiff) is entitled
to
compensation for a non-pecuniary loss only for ‘a serious
injury as contemplated in subsection (1A)\ Subsection 17(1 A),
in
turn, stipulates that the assessment of a ‘serious injury’
must be undertaken by a medical practitioner by way of
methods
prescribed by the regulations.
[27]
Subregulation 3(3)(c) provides that:
‘
The
Fund or an agent shall only be obliged to compensate a third party
for non-pecuniary loss as provided for in the Act if a claim
is
supported by a serious injury assessment report submitted in terms of
the Act and these Regulations and the Fund or an agent
is satisfied
that the injury has been correctly assessed as serious in terms of
the method provided for in these Regulations. ’
[28]
Subregulations 3(1) and 3(a) to (c) require a third party who wishes
to claim general damages to submit an SIA report in the
prescribed
form to the RAF. The SIA report must be made by a medical
practitioner who must assess whether the third party’s
injury
is ‘serious’ in accordance with certain criteria:
(i) in terms of
subreg 3(1)(b)(ii) the third party’s injury shall be assessed
as serious if it resulted in 30% or more WPI
as provided for in the
AMA guidelines;
(ii) a ‘narrative
test’ as provided for in terms of subreg 3(1)(b)(ii).
[29] A ‘narrative
test’ is used where the conclusion is reached, in terms of
subregulation 3(1)(b)(iii), that the claimant
has less than a 30%
WPI, but the injury nevertheless:
‘
(aa)
resulted in a serious long-term impairment or loss of a bodily
function;
(bb) constitutes
permanent serious disfigurement;
(cc) resulted in
severe long-term mental or severe long-term behavioural disturbance
or disorder; or
(dd) resulted in
loss of a foetus. ’
[30]
Subregulation 3(3)(d) provides that:
‘
If
the Fund [RAF] or an agent is not satisfied that the injury has been
correctly assessed, the Fund or agent must:
(i) reject the
serious injury assessment report and furnish the third party with
reasons for the rejection; or
(ii) direct that
the third party submit himself or herself, at the cost of the Fund or
an agent, to a further assessment to ascertain
whether the injury is
serious, in terms of the method set out in these Regulations, by a
medical practitioner or an agent. ’
‘
The
Fund or an agent must either accept the further assessment or dispute
the further assessment in the manner provided for in these
Regulations. ’
The
fact that this provision is preceded by subregulation 3(3)(d)(ii)
which provides that the further assessment is to be undertaken
‘by
a medical practitioner designated by the fund’ can only mean,
as Mr Zidel
was
bound to concede,
that the RAF not only has a right, in terms of the Regulations, to
dispute the assessment of its own medical practitioner
(expert) but
also has a right to refer the dispute to the Appeals Tribunal
provided for in the Regulations.
[32]
The dispute resolution procedure is provided for in subregulation
3(4), read together with subregulations 3(5), 3(7), 3(8),
3(10)
3(11), 3(12) and 3(13). There is no other. The dispute resolution
procedure in the Regulations culminates in a determination
by an
Appeal Tribunal consisting of three medical practitioners appointed
by the Registrar of the Health Professions Council. In
terms of
subregulation 3(13), the determination of the Appeal Tribunal
'shall be final and binding’.
The dispute resolution procedure, travelling all the way to the
Appeal Tribunal, is not provided
purely for the benefit of a
dissatisfied claimant. It avails to the advantage of the RAF as well.
[33]
In Road Accident Fund v Lebeko
1
this Court held that, in the absence of the prescribed assessment
having been made in terms of the Regulations, the high court
could
not make an order for the payment of general damages.
2
It
was
held
that the high court ought to have postponed the hearing in regard to
the claim for general damages so that the procedures for
which
legislative provision had been made in this regard could be
completed.
3
In similar vein, Mr Budlender has correctly contended that this is
what the high court ought to have done in the present case.
In view
of the mootness of the issues between the parties themselves,
however, he has sought no order to this effect in substitution
of the
high court’s order. He has asked simply that the high court’s
order relating to the award for general damages
be set aside.
[34]
The amendment Act, read together with the Regulations, has introduced
two ‘paradigm shifts’ that are relevant to
the
determination of this appeal: (i) general damages may only be awarded
for injuries that have been assessed as ‘serious
’
in terms thereof and (ii) the
assessment of injuries as ‘serious’ has been made an
administrative rather than a judicial
decision. In the past, a joint
minute prepared by experts chosen from the contending sides would
ordinarily have been conclusive
in deciding an issue between a third
party and the RAF, including the nature of the third party’s
injuries. This is no longer
the case. The assessment of damages as
‘serious’ is determined administratively in terms of the
prescribed manner and
not by the courts. For the court to consider a
claim for general damages, the third party must satisfy the Fund, not
the court,
that his or her injury
was
serious. ’
14.
This judgment fleshed out in some detail what had been stated in
Road
Accident Fund v Duma and three similar cases
2013
(6) SA 3
(SCA) previously:
‘
The
decision whether or not the injury of a third party is serious enough
to meet the threshold requirement for an award of general
damages
was
conferred on the
Fund and not the court. That much appears from the stipulation in reg
3(3)(c) that the Fund is only be obliged
to pay general damages if
the Fund
-
and not the court
-
is satisfied that
the injury has been correctly assessed in accordance with the RAF 4
form as serious. Unless the Fund is so satisfied
the plaintiff simply
has no claim for general damages. This means that unless the
plaintiff can establish the jurisdictional fact
that the Fund is so
satisfied, the court has no jurisdiction to entertain the claim for
general damages against the Fund. ’
(See
further:
Mahano
and Others
1
/
Road Accident Fund
[2015]
ZASCA 23)
15. The amendment to
the Act and regulations was introduced in 2008. The new regime was
applicable to the plaintiffs action. There
is no allegation in the
pleadings that the Fund was called upon to consider, by the
submission of the prescribed information in
the prescribed form,
whether the plaintiff had suffered a whole person impairment of 30%
or more. Given dr Van Wyk’s findings
- quite apart from the
indisputable objective fact that the injury was a minor one to a
little finger - and absent any suggestions
that a narrative medical
assessment of plaintiffs condition could change the picture, it must
have been clear to the plaintiffs
attorneys from the outset that the
Fund could, at the very best, be held liable for the plaintiff’s
actual loss of income
and a possible undertaking in respect of future
medical expenses and hospital treatment fees in terms of section
17(4)(a) of the
Act.
16. In addition, and
to put matters beyond any doubt had there been any room left for any
suggestion of uncertainty, Regulation
3(1)(b)(i)(ee) was amended on
the 15
th
May 2013 by publication in the Government Gazette
No 36452, to expressly exclude the amputation of a little finger of
either hand
from the catalogue of serious injuries. It goes without
saying that an amputation of the little finger constitutes a worse
impairment
than a stiff little finger standing at a slight angle to
the rest of the hand.
17. Yet the
attorneys persisted in the pretence that a serious injury had been
suffered. A neuro-clinical psychologist was appointed
to prepare a
medico-legal report on the 29
th
October 2013; an
occupational therapist on the same date; a general practitioner on
the 30
th
October 2013; an orthopaedic surgeon on the 19
th
November 2013, an industrial psychologist at the end of 2014 and a
general practitioner at the beginning of 2015. It should be
underlined that the two last-mentioned reports were obtained at the
instance of Ms Van Niekerk, who replaced the plaintiffs initial
legal
representative at the beginning of 2014.
18.
None of these expert reports were necessary or even required for the
purposes of a claim that could never render more than compensation
for actual loss of earnings, the sum total of which would never
exceed the jurisdictional limit of the Magistrate’s Court;
irrespective of whether an undertaking for future medical treatment
were to be given or not. The reports could never tell the plaintiff’s
attorneys - or the court -anything that was not patently obvious
prior to the institution of the action in 2012. The situation
was
perhaps best summed up in the words of the orthopaedic surgeon at the
conclusion of his report: ’
...Eiser
het die funksie van die pinkie verioor....’n amputasie kan
gedoen word as die pinkie in sy pad is, maar hy het geieer
om met die
pinkie so stokstyf en skeef oor die weg te kom. Hy kon selfs
vragmotor bestuur.... Eiser het nierversaking....(dit)
maak operasies
aan die pinkie riskant...(d)ie skewe pinkie is iastig, maar het nie
‘n groot nadeiige effek op sy iewensgenietinge
nie....'
The
occupational therapist concurred with the orthopaedic surgeon. The
general practitioner opined a month before the trial date
that; ‘
In
view of the RAF4 and the Medico-legal
("sic)
examination and
substantiated by radiological investigation, the writer is of the
opinion that Mr
Sl/l/
Ketsekele has not
been left with serious long-term impairment.’
This
medical practitioner prepared another RAF 4 form which again
underlined that the plaintiffs whole person impairment did not
exceed
1%. The industrial psychologist concluded that plaintiffs injury
would not ‘ ...
have
precluded Mr Ketsekele from continuing to work as a driver.’
Finally
the neuropsychologist pegged the plaintiffs whole person impairment
at 5%.
19.It is therefore
clear that the only purpose these reports could ever serve was to
churn the money machine for the attorneys and
the experts whose
reports were obtained at an average cost - so the court was informed
during the postponed argument on the order
the court should make in
regard to costs - of R 20 000, 00 each. Their contents unanimously
supported the defendant’s case.
20.
At the beginning of March 2014 the present attorney of record was
appointed, plaintiffs previous attorney having been struck
off the
roll. Ms A F van Niekerk filed an explanatory affidavit after the
court invited further argument on the question of an
appropriate
costs order. She states that when she examined the plaintiffs file
she received when she accepted the mandate, the
RAF form revealed ‘
...
inter alia
...’
that plaintiffs right hand had been injured. She does not expand upon
any other information that might be relevant to
the question of
damages the plaintiff allegedly suffered.
21. During a
subsequent consultation the plaintiff allegedly informed her that he
experienced problems with his neck and his back
and had some pain in
his right hand while the little finger was obviously deformed. The
plaintiff further told her that he was
depressed and was troubled by
fear as a result of the accident. She therefore concluded that the
previous attorney of record had
acted appropriately when he
instructed the medical experts whose reports have been referred to
above. She went further and instructed
the general practitioner and
the industrial psychologist to prepare additional reports.
22. The orthopaedic
surgeon’s report was received on 3
rd
December 2014,
the occupational therapist’s report on the 7
th
January 2015; the industrial psychologist’s report a little
later during the same month and the neuro-clinical psychologist’s
and the occupational psychologist’s reports on the 2
nd
February 2015. An actuary thereafter calculated the loss of income at
R 27 713, 00.
23. Ms van Niekerk
does not explain how she came to the conclusion that any of these
reports could advance the plaintiffs case.
Notwithstanding this fact
she did not withdraw the notices already filed by the previous
attorney that plaintiff intended to call
expert witnesses, but added
similar notices in respect of the reports she had obtained and filed
copies of all reports with the
Registrar and served copies thereof
upon the defendant’s attorneys.
24.
Given the content of these reports - quite apart from the fact that
the plaintiff could never prove a serious injury - Ms van
Niekerk and
her counsel could never seriously have intended to call any of the
experts to the witness stand unless the actuary’s
report were
disputed, which it never was. This much was indeed common cause. Mr
De Vries, who appeared
pro
amico
on
behalf of Ms Van Niekerk at the postponed date to present her
argument on the costs order, conceded that the plaintiffs legal
representatives never intended to call any of the experts. But, he
stated, notice had to be given of a purported intention to call
the
experts, and copies of the reports had to be filed and served, in
order to ensure that a costs order could be obtained against
the Fund
for the payment of the experts and the fees incurred in of perusing
the reports and preparing copies for service and filing.
If no notice
was given, no taxing master would allow these fees and disbursements.
It was solely for this purpose that the expert
reports were submitted
to the court and the defendant.
25. After a
perfunctory pre-trial conference which did not advance the progress
of the trial or limit any disputes the matter was
called on the 18
th
February 2015. A draft order, presumably prepared by plaintiffs
attorneys, reflects the intention to present a settlement to the
Flon
Deputy Judge President at the calling of the civil trial roll that
morning. The settlement was not concluded before the matter
was
called and it was allocated for trial to this Court. The parties'
legal representatives called upon the judge in chambers and
informed
him that a settlement appeared to be imminent and requested the
matter to be stood down for a while.
26.
Shortly thereafter the Court was informed that the matter had indeed
been settled and it was requested that the settlement should
be made
an order of court. The draft order presented to the Court records
that the Fund would pay the sum of R 24 941, 70 in respect
of lost
income to the plaintiff; representing 90% of his actual loss under
this head. It provides further for an undertaking in
terms of section
17(4)(a) of the Act for the payment of 90% any future medical or
hospital treatment in respect if the
injuries
sustained
...’
in the accident.
27. Clause 4 thereof
reads:
'The Defendant
shall pay the Plaintiff's taxed or agreed party and party costs on
the High Court scale, .... such costs shall include:
4.2.1
the costs incurred in obtaining payment (of
the
agreed damages and any medical expenses,);
4.2.2. the costs
of counsel, including counsel’s charges in respect of her full
day fee for 18 FEBRUARY 2015, as well as reasonable
preparation;
4.2.3. the costs
to date of this order, which costs shall further include the cost of
the attorney and the correspondent attorney
which include necessary
travel costs and expenses (time and kilometres), preparation for
trial and attendance at Court which shall
include all costs
previously reserved, the reasonable cost of consulting with the
Plaintiff to consider the offer, the cost incurred
to accept the
offer and make the offer an order of court;
4.2.4.
the costs of all medico-legal, radiological, actuarial, addendum and
joint reports obtained by the Plaintiff, as well as
such reports
furnished to the Defendant and/or to the knowledge of the Defendant
and/or its attorneys,
(sic)
as
well
as
all reports in
their possession and all reports contained in the Plaintiff’s
bundles, irrespective of the time elapsed between
the reports by an
expert;
4.2.5. the
reasonable and taxable preparation, qualifying and reservation fees,
if any, in such amount allowed by the Taxing Master,
of the experts
as in 4.2.4 above;
4.2.6.
the reasonable costs incurred by and on behalf of the Plaintiff in,
as well as the costs consequent to
(sic)
attending the
medico-legal examinations of both parties.
4.2.7.
the costs consequent to
(sic)
the Plaintiff’s
trial bundles, including the costs of 5 (five) copies thereof;
4.2.8.
the costs of holding all pre-trial conferences, as well
as
round table
meetings between the legal representatives for both the Plaintiff and
the Defendant, including counsel’s charges
in respect thereof,
irrespective of the time elapsed between pre-trials;
4.2.9. the costs
of and consequent to compiling all minutes in respect of pre-trial
conferences, including counsel’s charges;
4.2.10.
the costs of holding all inspections
in
loco,
including
counsel’s charges in respect thereof, if any,
4.2.11. the costs
of and consequent to the parties of both parties attending joint
meetings, as well as costs of and consequent
to compiling minutes of
joint meetings between the experts, irrespective of the time elapsed
between joint minutes and/or addendum
joint minutes;
4.2.12. the costs
of and consequent to the holding of all expert meetings between the
medico-legal experts appointed by the Plaintiff;
4.2.13. the
reasonable travelling costs of the Plaintiff, who is hereby declared
a necessary witness.'
27. It is a matter
for comment that the draft order’s provisions relating to the
compensation the plaintiff will receive,
comprise three paragraphs
covering fifteen typed lines whereas the provisions relating to the
costs that lawyers and medico-legal
experts will be entitled to
recover, run to no less than thirteen sub-paragraphs comprised of 62
typed lines. Provision is made
for the payment of costs that could
never have been reasonably incurred in this case as some items relate
to issues that do not
form part of the dispute at all.
28. When the draft
order was presented to the Court counsel were requested to explain
why the claim had not been instituted in the
Magistrate’s Court
in the first instance, and on what basis the agreement to charge
costs and fees on the High Court scale
was justifiable. Counsel for
both parties appeared to be taken completely by surprise by these
questions. Arguments were advanced
that plaintiff was entitled to
institute action in the High Court and was therefore entitled to his
costs on the High Court scale.
The question why the experts were
consulted was not fully addressed at this stage.
29.
The Court advised the parties that it regarded the manner in which
this matter had been handled
prima
facie
as
an abuse of the Court and its process and that the Court was minded
to disallow all fees of the legal representatives and experts,
and to
report the matter to the Law Society and the Bar Council for
investigation of the probity of the lawyers’ actions.
The
matter was postponed to allow the parties to prepare submissions why
such orders should not be made.
30.
At the resumed hearing Mr De Vries, a senior attorney with extensive
experience of RAF matters, appeared
pro
amico
for
Ms Van Niekerk. The court is indebted to him for his assistance and
the heads of argument he favoured the court with. In his
address he
confirmed the factual history of the matter and the course the
litigation took as set out above. He then argued that
the injury the
plaintiff suffered could be compared with an amputation of the little
finger, which has been excluded from the catalogue
of serious injury
by the Regulation referred to above. Had it not been for this
regulatory exclusion the plaintiff’s injury
could be
categorised as serious, so he submitted.
31. This argument
cannot be accepted. Nothing that is contained in the papers or the
expert reports allows that conclusion to be
drawn. The experts’
assessment of the whole person impairment at between 1% to 5% is
proof positive of the minor nature of
the mishap the plaintiff had to
suffer. This assessment is so self-evident that the plaintiffs legal
advisers cannot hide behind
the fact that the Regulation was
published only after summons had been issued for the fact that they
approached the matter in the
fashion in which they did. It is in any
event clear that they did consciously decide not to amend the
plaintiffs particulars of
claim after the publication date of the
Regulation.
32.
The same holds good for the certificate the parties eventually agreed
the Fund should provide to the plaintiff. Mr De Vries
relied upon the
decision of
Motswai
v Road Accident Fund
2014
(6) SA 360
(SCA) for the submission that
'..The
effect of the undertaking is that the Plaintiff is entitled to 80% of
whatever he may pay for treatment he may receive, ....put
at its
lowest, it is potentially of some value to the Plaintiff
...’.
The present plaintiffs situation must be seen in a different light.
Long before summons was issued the plaintiff’s
condition had
stabilized to the extent that there was no reasonable risk that
future medical treatment would be required. None
was sought or
administered during the six years that followed the plaintiffs
discharge from hospital after treatment of his finger.
By the time
the trial date loomed large, the medico-legal reports confirmed that
future treatment was not only unlikely, but might
be positively
dangerous to the plaintiff because of the kidney condition that
forced him into early retirement. At worst some palliative
medication
might be required, certainly no future medical treatment the cost of
which would approximate the limit of the Magistrate's
Court’s
jurisdiction.
33. Whatever the
situation regarding the certificate in terms of section 17(4)(a) of
the Act may have been, it was clear that no
medico-legal report was
required and no expert could advance the plaintiff’s case. Mr
De Vries conceded that the plaintiff’s
legal advisers never
intended to call any one of them. Nonetheless notice of the intention
to present the experts’ evidence
was given as recorded above.
The reports were formally filed in the court file and copies were
served on the Fund’s attorneys.
Costs of making copies, filing
and perusing the reports were incurred. When confronted with this
entirely unwarranted course of
conduct Mr De Vries candidly admitted,
as stated above, that the only reason for presenting the charade of
intending to call expert
witnesses was to ensure that their fees and
the costs associated with producing their reports could be included
in the costs order
that would be sought against the Fund. If no
notice were given and no reports were filed the plaintiffs attorneys
would have to
foot the bill of the expert witnesses. These facts need
only be recorded to establish a lack of bona fides and probity on the
part
of the legal representatives: The only object of this exercise
was to plunder the resources of the - allegedly insolvent - Fund.
34. The Fund’s
legal representatives were as complicit in operating this scam as
were those of the plaintiff. They readily
conceded that they should
never have agreed to pay the plaintiff’s costs on the High
Court scale, but proffered no explanation
what motivated them to do
so. They did not even attempt to explain why they agreed to burden
the Fund with the costs of unnecessary
medico-legal reports. The
explanation is obvious: If the plaintiff’s lawyers were
entitled to fees calculated on the High
Court scale, the taxing
master would be hard pressed to disallow their own fees pegged at the
same level.
35. It is patently
obvious that the lawyers involved in this matter, counsel and
attorneys alike, confidently expected this forensic
scam to be
implemented without any problem, indicative of a practice that
appears to be in vogue in RAF matters. The agreement
the parties
reached was recorded on a template that had open spaces to record the
plaintiff’s particulars and the individual
details of the
proposed settlement the parties intended to finalise at court. The
agreement to pay costs on the High Court scale,
set out above, is
part of the pre-printed portion of the template. The lawyers involved
were clearly surprised that what might
be described as their cosy
arrangement was questioned by the Court. This provides further proof
of a system that appears to be
evident in dealing with RAF matters.
36.
The lawyers’ actions are
prima
facie
lacking
in probity. It would appear that their duty to act honestly toward
the court and strictly in the best interests of their
clients was
sacrificed on the altar of personal enrichment. It is only proper
that all their fess are disallowed to mark the court’s
disapproval. This judgment will be referred to the Law Society of the
Northern Provinces and to the Pretoria Society of Advocates
for
further investigation and appropriate action, should any be
indicated.
37.
It is self-evident that this matter should not have appeared on the
Court’s roll. It could - and should - have been disposed
of
prior to summons being issued if the Fund had properly fulfilled its
function by investigating the merits as soon as the claim
was lodged
and settling this elementary case there and then. But, as the Full
Court was informed some years ago already in
Pretoria
Society of Advocates and Another v Geach and Others
2011
(6) SA 441
(GNP) through a memorandum prepared by the organised
profession in respect of RAF matters:
The
memorandum further states that in the majority of RAF matters the RAF
only starts with its preparations a few days (at most
a week) prior
to the trial date. Attorneys acting for the RAF usually do not get
instructions to brief counsel until a day or two
(at most) before the
trial date. In most cases only the day before the trial, and in some
cases even on the morning of the trial.
Pre-trial conferences do not
serve the intended purpose (to limit issues and costs)
as
due to lack of
preparation and instructions the RAF makes no concessions. Even where
their attorneys are prepared to do so they
cannot obtain instructions
from the RAF. Consequently, even though approximately 90% of all RAF
matters are settled out of Court,
settlements are not reached prior
to the trial date and in many matters not even on the first day. This
sometimes led to clashes
with other cases already held and unintended
double briefing. The increased number of RAF matters on the trial
roll resulted in
tremendous additional pressure on attorneys which
resulted in counsel taking on more matters than would normally have
been the
case. Attorneys, to alleviate pressure on themselves, were
desperate to obtain the services of counsel experienced in RAF
matters.
The failure of the RAF to give timeous instructions often
had the result that the attorneys acting for the RAF had no choice
other
than to brief the same counsel on short notice to handle more
than one matter as they wanted competent counsel knowledgeable in
the
field.
40. The contents
of this memorandum is common cause. The evidence is that it sets out
the facts correctly. It must be remembered,
however, that the
respondents were double briefing at least from February 2009 whereas
the floodgates were only opened In July.
Sanctimonious statements
that they were double briefing to help the Court combat the congested
trial roll, do not wash.
41.
Pressured by attorneys who wanted to continue to brief their regular
counsel, who were experts, the respondents accepted trial
briefs
offered despite having been briefed in another matter for that
particular day. In view of the congested roll, and the unpreparedness
of the RAF and its attorneys and counsel, a settlement or a
postponement was a virtual certainty. Instead of being offered briefs
on postponement or on settlement, they accepted multiple briefs on
trial. And when the matter was settled they marked a trial fee
on the
brief. Invariably in these cases the RAF
was
to pay the costs
and paid these fees marked "on trial" despite the fact that
it was not intended when the brief was received
that the matter
should go to trial and the matter did not go to trial.
This could not
have happened without the connivance of the briefing attorneys.
38.
Nothing has changed in the Fund’s approach to dealing with
claims submitted to it by victims injured in motor vehicle
accidents
since it was confronted with the common cause facts recorded in the
judgment of the Full Court. Instead of promptly and
properly
investigating the merits of these claims, the Fund usually does
nothing until the very last moment. Unfortunate sufferers
of the
consequences of often debilitating injuries are forced to institute
action and to wait for many years before their matters
are settled at
court on terms that could have been negotiated as soon as the
victim’s condition had stabilised, at a fraction
of the costs
the Fund routinely agrees or is forced to pay literally at the doors
of the court. The court system is overcrowded,
not least because
hundreds of matters that should never have been allowed by the Fund
to proceed to litigation are placed on the
court roll, only to be
settled in a fashion similar to the one that is evident in this
matter - which has the added complication
that it could and should
have been dealt with in a lower court. Time and again, on a daily
basis in more than one court in this
Division, counsel for the Fund
rises to inform the court that the matter cannot be settled because
the Fund’s claims handler
to whom the matter was allocated is
unwilling or refuses to give an instruction to the lawyers
representing the Fund. Nor is the
Fund in a position to contest the
plaintiff’s case as the claim has not been investigated - after
it has been pending four
or five years and tens of thousands of Rands
have been spent on legal fees - and no medical experts have been
instructed by the
Fund to dispute the opinions provided by
plaintiff’s experts. The matter then proceeds
‘
...on
the basis of the plaintiff’s case...’.
The
Fund’s lawyers are, in a manner of speaking, sent into battle
without guns or ammunition. They are unable to render an
optimal
service to their client in return for the fees they are entitled to;
and the court is denied the full measure of their
assistance because
they do not have proper instructions.
39.
The Fund’s approach to litigation constitutes a serious
dereliction of its duties to road accident victims, the public
and
the courts. The fund is an organ of state. As was said in
Daniels
and Others v Road Accident Fund and Others
(8853/2010)
[2011] ZAWCHC (28 April 2011):
'[14]
There can be no doubting therefore that the limitations of common law
and constitutional rights arising out of the aforementioned
provisions of the Act create an obligation on the Fund to diligently
investigate claims submitted to it and to determine, if practically
possible within 120 days of receipt of the claim
,
whether it is
liable to compensate the claimant, and, if so, in what amount. The
Fund is obliged to conduct itself in this respect
with due
recognition that its very reason for existence is 'to give the
greatest possible protection ... to persons who have suffered
loss
through a negligent or unlawful act on the part of the driver or
owner of a motor vehicle'. In this connection it was observed
in the
majority judgment of the Constitutional Court in Road Accident Fund
and Another v Mdeyide
2011 (1) BCLR 1
(CC) (at para 78) that the Fund
is 'a hugely important public body which renders an indispensible
service to vulnerable members
of society". The majority judgment
in Mdeyide reflected an acknowledgment of the crucial importance of a
'properly administered
Fund to the upholding of 'the constitutional
values of human dignity, the achievement of equality and the
advancement of human
rights and freedoms'.
[15] In my view
the constitutionality of at least some of the rights-limiting
provisions in the Act mentioned earlier is predicated
on the implicit
undertaking by the state that the operation of the Act will entail
the efficient discharge by the Fund of its functions
in respect of
the processing and determination of claims. Certainly, the
justification for the limitations goes limping when the
relevant
organ of state fails properly, in faithful compliance with the Act,
to render the performance that constitutes the very
basis for
characterising the limitation as reasonable and justifiable in an
open and democratic society based on human dignity,
equality and
freedom. Recognition of that effect inexorably impels the conclusion
that a materially inadequate performance by the
Fund of the relevant
statutory functions would amount to conduct that would unjustifiably
infringe the affected limited rights.
At the same time, any such
failure by the Fund to fulfil its statutory object would evidence a
breach by the state of its obligations
in respect of other rights,
like equality, human dignity, security of the person, health and
social security, which the Act is
meant to represent a means of
advancing and protecting.
[16]
In Law Society of South Africa and Others v Minister of Transport and
Another
2011 (1) SA 400
(CC);
2011 (2) BCLR 150.
the
Constitutional Court described the Act as an instrument that might
'properly be seen as part of the arsenal of the state in
fulfilling
its constitutional duty to protect the security of the person of the
public and in particular of victims of road accidents'.
Accepting
that to be so, the state fails in its identified constitutional duty
to the extent that it does not deploy that part
of its arsenal
efficiently and effectively in furtherance of its dedicated object.
The history of
non-fulfilment by the Fund of its statutory object
[17] That during
the last decade the Fund has too often failed to perform in a manner
consistent with the realisation of its object
of rendering an
indispensible service to vulnerable members of society, with
resultant prejudice to third party claimants, is evident
from the
adverse remarks made in a significant number of superior court
judgments given during that period. The Fund's management
cannot be
unaware of this criticism; in some matters the courts concerned
directed that copies of the judgment be sent to the Chief
Executive
Officer or the Chairperson of the Board. The sorry history suggests
that the Fund has turned a deaf ear to repeated judicial
enjoinders
to comply properly with its statutory obligations, alternatively,
that it is materially lacking in effective resources,
and that
insufficient has been done by government to address the underlying
cause or reason for such incapacity.
[18]
Thus, in Road Accident Fund v Klisiewicz
[2002]
ZASCA 57
(29 May
2002), Howie JA, in the course of upholding a cross-appeal by a
claimant against the trial court's refusal to make a special
costs
order against the Fund arising out of the unnecessarily prolonged
duration of the damages action that had resulted as a consequence
of
the Fund's evident unpreparedness on account of its failure to
properly investigate the claim, stated (at para 42):
A special costs
order is therefore not only appropriate but necessary. The [Fund]
exists to administer, in the interests of road
accident victims, the
funds it collects from the public. It has the duty to effect that
administration with integrity and efficiency.
This entails the
thorough investigation of claims and, where litigation is responsibly
contestable, the adoption of reasonable
and timeous steps in
advancing its defence. These are not exacting requirements. They must
be observed.
[19]
In Madzunye and Another v Road Accident Fund
2007
(1) SA 165
(SCA),
the Fund was again made the subject of a punitive costs order because
of its ill-considered opposition to an appeal in circumstances
which
evinced a striking failure by it to adhere to its statutory object.
At para 17-18 of Madzunye, Maya JA, having quoted Howie
JA's remarks
in Klisiewicz loc cit supra, stated:
'....the
respondent, which relies on the public purse for its existence and
does not, therefore, have unlimited financial resources,
conducted
itself in a manner which cannot be reconciled with the requirements
set out in the Klisiewicz case. This is particularly
so having regard
to the fact that the intention of the Act, in terms of which the
respondent functions, is to give the greatest
possible protection to
victims of negligent driving of motor vehicles.
[20]
In Bovungana v Road Accident Fund
2009
(4)
SA 123
(E)
at para 3, Froneman J noted an increasing tendency of its officials
to disregard the duty imposed on the Fund in respect of
the handling
of claims of road accident victims. In that matter the learned judge
deplored the Fund's failure to investigate the
plaintiffs claim and
its consequent unmerited defence of the action at trial. An order was
made that the responsible employees
of the Fund should be liable
personally, jointly and severally with the Fund, for the costs of a
meritless application for a postponement
of the trial. The Fund was,
in addition, ordered, punitively, to pay the plaintiff's costs in the
action on the scale as between
attorney and client.
[21]
The Fund's 'deplorable conduct in failing to conform to its statutory
responsibility towards a claimant was also the subject
of deprecatory
remarks in Road Accident Fund v Delport
[20061
1
All SA 468
(SCA)
at para 26-29. Referring to an apology tendered in that regard to the
Appeal Court, Zulman JA remarked 'The hope is expressed
that there
will not be a recurrence of such conduct on the part of the appellant
in similar cases in the future. ’ A forlorn
postscript to the
learned judge of appeal's expression of hope is provided in the
example described by Moleko J in Razack v Road
Accident Fund
[20071
ZAKZHC
26
(19 October 2007) at para
254-261 of the Fund's failure to pay an agreed amount of compensation
to a claimant and its attempt consequent
thereupon to seek, in an
unpersuasive manner, to distinguish its conduct from that for which
it had apologised in Delport.
[22]
Other recent judgments which reflect adversely on the manner in which
the Fund has conducted itself in respect of its statutory
duty
towards third party claimants include Road Accident Fund v Ramalebana
[2010] ZAGPJHC 52 (25 June 2010); Jwili v Road Accident
Fund
2010
(5) SA 32
(GNP);
Kekana v RAF
[20101 JOL 25206
(GSJ);
Chetty v Road Accident Fund
2009
(5)
SA 193
(N);
Mlatsheni v Road Accident Fund
2009 (2) SA 401
(E); Nonkwali v Road Accident
Fund [2009] ZAECMHC 5 (21 May 2009); Shikwambana obo Ngobeni v Road
Accident Fund
[20071 ZAGPHC 105
(19
June 2007) at para 17; Soko v Road Accident Fund
[20081
ZAGPHC 257
(19
August 2008); Naicker v RAF
[20081 JOL 22709
(Ck) and Road Accident Fund v
Radebe
[20101 ZAFSHC 154
(2
December 2010). Mention should also be made of the unreported
judgment of Satchwell J in Seymour-Smith v Road Accident Fund WLD
case no. 12441/03 (26 January 2006) in which the Fund was justly
criticised in trenchant terms for being wholly unprepared for
trial,
having denied liability to compensate the plaintiff notwithstanding
that it had no material in its possession to justify
that position.
Summons instituting action had been issued some two years and eight
months before the matter came to trial.
[23] A depressing
feature of all of the aforementioned judgments is that they instance
examples of cases in which the Fund must
have incurred substantial
legal expenses in taking to trial, or on appeal, claims which it had
no basis to responsibly contest.
In the context of the evidence
before us that legal expenses constitute a very significant component
of the Fund's overall expenditure,
this is an aspect of the Fund's
conduct which is demanding of conscientious attention by the
responsible authorities, including
the second and third respondents”
40. It is clear that
all the above comments, criticism and appeals to the Fund to observe
its statutory duties and constitutional
functions have fallen on deaf
ears. The Fund is either incapable of, or disinterested in serving
individuals who are often among
the most vulnerable members of
society. Its failure to do so leads to the waste of huge sums in
legal fees and expenses and opens
the door to abuse of the system.
The full extent of this rather desperate state of affairs is best
illustrated by some figures.
During the first term of 2015, 5895
(five thousand eight hundred and ninety-five) civil matters were
enrolled on this Court’s
civil trial roll. The vast majority of
these cases, more than ninety per cent, were RAF matters. In 3032
(three thousand and thirty-two)
matters the parties arrived at the
call of the roll with draft settlement agreements, or entered into
settlements on that morning,
that were duly made orders of court.
Many settlements, probably the majority, would relate to the merits
only, which would mean
that these matters would re-appear on the roll
in future, to be dealt with in similar fashion. There is only one
reason that the
roll is swamped in this fashion: The failure of the
Fund to investigate claims, timeously or at all. There is a strong
possibility
that many matters are settled on terms the Fund would
never have agreed to had the plaintiff’s claims been properly
scrutinized
and that the Fund pays amounts in excess of the true
value of the claim. More important, however, is the fact that counsel
and
attorneys have to be retained by both parties to the matter until
it is settled. Settlements are usually reached either on, or only
very shortly before the trial date. Junior counsel appearing for the
plaintiff would, conservatively speaking, mark a fee of about
R 12
000, 00 for their appearance on the first trial day. If this figure
is multiplied by 3032 the result is R 36 384 000, 00.
In most, if not
all, cases there would be two counsel. Junior counsel briefed in
terms of the Fund’s latest tender agreements
would mark, on
average, R 7 000, 00 for the first day, increasing the bill for
counsel’s fees by R 21 224 000, 00 to R 57
080 000, 00. If the
attorneys’ costs for both parties are added - assuming that
they amount to no more than R 12 000, 00,
which may be far too low -
the costs expended upon these cases spiral to around R 130 000 000,
00. Many attorneys’ bills
will exceed the sum of R 12 000, 00
by a considerable margin, including in the case of plaintiffs the
costs of the experts’
reports and reservation fees. On the
other hand some counsel may have been briefed on settlement only,
resulting in their being
entitled to a lower fee. These calculations
are obviously neither scientific nor accurate, nor do they
necessarily apply to other
Divisions of the High Court. Given the
above facts it can however be stated with some confidence that in one
court term in one
Division of the High
Court between R 110 million and R 150 million is needlessly spent on
legal fees in Fund matters that could
be saved and devoted to the
needs of accident victims. Most of these fees have to come out of the
Fund’s coffers.
41.
This state of affairs cannot be allowed to continue. It has been
recommended repeatedly in the past that the compensation of
road
accident victims through a state sponsored agency should abandon the
fault principle - namely that a plaintiff victim has
to prove
negligence on the part of the driver responsible for her or his
injuries. Judge Satchwell in her monumental report of
the Road
Accident Fund Commission commented upon the issue as long ago as
2002. The Minister of Transport has now published the
Road Accident
Benefit Scheme Bill. If implemented, it will create an agency that
will compensate accident victims on a non-fault
basis by the
provision of medical and other services. It will hopefully provide a
solution to the present morass of needless litigation
and
unacceptable delays. It does contain a worrisome proposal, however,
that the new agency will absorb the existing Fund's structures.
With
such assimilation the new agency will be exposed to the risk of
perpetuating the Fund’s culture of indifference to human
suffering and financial waste. If so, the new agency would be saddled
with an
inheritas
damnosa,
a
cursed inheritance that would doom it to fail virtually immediately.
The compensation of road accident victims requires a radical
change
that should be free of the shackles of an institution that does
neither comply with its duty to uphold the fundamental rights
enshrined in the Constitution nor with the duties imposed upon it by
its statute.
42. The plaintiff is
entitled to his proven damages. The lawyers are not entitled to
charge any fees for the reasons set out above.
It must be recorded
that plaintiff’s attorney informed the court during argument
from the Bar that no fees would be demanded
from the plaintiff
whatever the court’s order might be.
The following order
is made:
1. The defendant is
ordered to pay the sum of R 24 941, 70 (Twenty-four thousand nine
hundred and forty-one Rand and seventy cents);
2. If the said sum
is not paid within fourteen days from date of this order, interest at
the rate of 9% p.a. will be payable on
this sum from the fifteenth
day until date of payment;
3. It is declared
that neither party’s legal representatives are entitled to any
fees or disbursements in respect of any work
or service performed in
respect of this matter;
4. A copy of this
judgment is to be sent to the Law Society of the Northern Provinces
and the Pretoria Society of Advocates for
their consideration of the
ethical implications of the legal representatives’ conduct in
these proceedings.
Signed at Pretoria
on this eighth day of May 2015.
E BERTELSMANN
Judge of the High
Court.
1
Road
Accident Fund v Lebeko
(802/2011)
[2012] ZASCA 159
(15 November 2012).
2
Para
27.
3
Para
28.