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[2015] ZAFSHC 139
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Radebe v Road Accident Fund and Another (1897/2008) [2015] ZAFSHC 139 (9 July 2015)
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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
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
number: 1897/2008
In the
Appeal between:
MS
RADEBE
Applicant
and
ROAD
ACCIDENT
FUND
Defendant
CHUENE
ATTORNEYS
Third Party
HEARD
ON:
21 APRIL 2015
JUDGMENT
BY:
N.M. MBHELE,
A.J
DELIVERED
ON:
09 JULY 2015
INTRODUCTION
AND BACKGROUND
[1]
Plaintiff is Mhlekazi Selina Radebe, who acts in her personal
capacity in a delictual claim against the defendant arising from
injuries she sustained in a motor vehicle collision on 10 February
2006, (the collision).
[2] It
is the Plaintiff`s case that the defendant is liable to compensate
her in terms of the provisions of the Road Accident Fund
Act, 56 of
1996 (the Act) for her damages arising from the aforementioned
collision. Plaintiff`s injuries were sustained
as a result of
the wrongful and negligent driving of the insured driver, a certain
MP Hlongwane.
[3] As
a consequence the plaintiff has suffered damages in the form of post
and future medical, hospital and related expenses, and
general
damages.
[4] In addition to its
plea on the merits, the defendant filed a special plea.
When
the matter came up for hearing, the parties reverted to an agreement
they had earlier during the course of the pre-trial conference
held
in this matter and which is set out in paragraph 4 of the pre-trial
minutes as follows:
“
Dat
die hof op hierdie stadium versoek sal word om slegs die verweerder
se spesiale pleit soos vervat in paragrawe 1 tot 6
van die
verweerder se verweerskrif te bereg en dat alle ander geskilpunte
uitgestel sal word
sine
die
”.
[5]
The issues
The
defendant filed a special plea
inter
alia
stating the following:
5.1
On 05 May a claim against the defendant was lodged on behalf of the
Plaintiff due to injuries sustained by the Plaintiff
in a motor
vehicle collision which occurred on 10 February 2006.
5.2
The claim was lodged on behalf of the Plaintiff by Choeu Chuene
Attorneys ( the third party) duly authorised to do so
in terms of the
special power of Attorney signed on 20 February 2006.
5.3
The
Plaintiff is Mhlekazi Selina Radebe with identity number:
[…………].
5.4
On 23 October 2006, the Defendant made an offer of settlement to the
Plaintiff`s Attorneys in the amount of R 8000.00.
5.5
The
Plaintiff`s accepted the offer on behalf of the Plaintiff by means
of a letter of Acceptance dated 17 November 2006.
5.6
Payment
was effected on Plaintiff`s Attorneys on the 28
th
November
2006.
5.7
The
Plaintiff`s current claim for payment of damages suffered as a result
of injuries sustained in a motor vehicle collision which
occurred on
10 February 2006, is a claim for the same thing, on the same grounds
against the same party. Defendant pleads that
the Plaintiff`s present
claim has been finalised and paid in full.
[6]
The matter is before me for adjudication of the Defendant’s
special plea. On 04/ 02/2013 the defendant filed a Notice
to the
third party, joining Choeu Chuene Attorneys to the proceedings as a
third party. The Plaintiff filed a replication wherein
she stated
that she never instructed Choeu Chuene Attorneys to represent her in
lodging a damages claim against the defendant.
She further states
that she never signed a Power of Attorney as alleged by the
Defendant.
[7]
The parties agreed that the Defendant bears the onus to prove and has
a duty to begin.
Defendant`s case.
[8] In support of its
case, the defendant called Zodumo Noqayi, a litigation officer in the
defendant’s employ at the
Cape Town branch . She
testified to the effect that her daily duties involve settlement of
claims lodged by Plaintiffs’ Attorneys
against the defendant.
She further testified that when she received Plaintiff`s summons, she
drew the file and noticed that the
plaintiff’s claim based on
the same facts and cause of action was settled by the defendant`s
Pretoria branch during 2006.
The matter was previously handled by
another claims handler. She only handled the matter at the time she
received the summons and
she is not conversant with the circumstances
surrounding the offer that was made on 23 October 2006. After
acceptance of offer
money was paid into Choeu Chuene Attorney’s
Trust Account.
Plaintiff`s
Case
[9]
Plaintiff testified in support of her case. She testified to
inter
alia,
the
fact that she was a passenger in a taxi that was involved in an
accident during 10 February 2006. Around March 2006 she approached
Mr. Kruger of Breytenbach and Mavuso Attorneys and instructed him to
lodge a claim with the defendant for personal injuries. She
signed
the Road Accident 1 form and the Power of Attorney on 29 March 2006
at the offices of Breytenbach and Mavuso . She never
instructed the
third party to lodge a claim on her behalf with the Defendant. She
has never met anyone from the Third party’s
offices and the
Power of Attorney that is said to have been signed by her on 06 May
2006, she bears no knowledge thereof. She has
never been to
Johannesburg in her whole life and as such all the documents
that are alleged to have been signed by her through
the third party,
are foreign. She admits that she at some stage had to
change her signature. This was done as per the
advice from the bank
after her bank card was stolen and money was withdrawn from her
account. She confirms that she did receive
a letter from the third
party, informing her that the third party would accept an offer on
her behalf from the Defendant. She immediately
took the letter to Mr.
Kruger for further attention as she had no dealings with the third
party. She never received any money from
the third party. She further
stated that she was bedridden for 3 months, and as such she could not
have managed to travel to Johannesburg
to instruct the Third Party.
The matter was adjourned
while the plaintiff was still under cross examination by the third
party. The third Party failed to appear
in court in the next
appearance date, and the parties requested the court to declare cross
examination of the plaintiff closed.
Documents brought before me
showed that the third Party was well aware of the date of further
hearing and in the absence
of explanation of the third party`s
absence I declared the cross examination closed. Where after
the Plaintiff closed its
case.
Contentions
by the Parties
[10]
In argument Mr. Coetzer, for the Defendant, submits,
inter
alia,
that
even though the Defence`s witness could not provide an insight
of how the Plaintiff`s claim was settled, on phase
value all
documents accompanying the settled claim suggest that Plaintiff
indeed instructed the third party to lodge a claim on
her behalf,
which it did. He further contends that the credibility of the
Plaintiff is questionable in that she insisted that her
signatures on
different papers were similar when one could see through naked eyes
that they are not the same. He further submitted
that it is
impossible for the third party to have come into possession of the
Plaintiff`s copy of identity document without her
furnishing the
third party with the same. He contends further that the Plaintiff`s
claim that she sustained severe injuries cannot
be reconciled with
the medical expert report filed of record.
[11] Mr. Cilliers, for
the Plaintiff, submitted, inter alia that the Plaintiff was
consistent that the signature appearing on the
documents lodged by
the third Party was not hers. The letter that was sent contradicts
the offer that is said to have been accepted.
He further contends
that there is no evidence to show why the third party is not before
court to substantiate the Defendant’s
claim. The fact that the
Defendant has received no money from the third party since 2006 is an
indication that the claim submitted
by the third party was
fraudulent.
There
is no evidence from the third party to show how they came into
acquisition of the Plaintiff`s personal documents, including
her I.D.
book. The defendant, according to Mr. Cilliers, failed to discharge
its onus.
[12]
The Parties are
ad
idem
that the Plaintiffs’ current claim arises from the same facts
as those in the claim lodged by the third party, which was
subsequently settled.
Settlement agreement is a
contract, and for it to be binding, it must
inter alia,
satisfy
the following elements:
·
Consensus
·
Capacity
·
Formalities
·
Legalities
·
Possibility
·
Certainty
“
See
the Law of Contract in South Africa. Dole Hutchinson et al P6.
The
letter informing client of an offer made by the Defendant was written
on 09 October 2006 by the third party, when the Defendant’s
offer was only made on 23 October 2006. Evidence before he
shows that the said letter contained no amount of offer. The letter
was a confirmation of a conversation between the Plaintiff and an
Attorney from the third party’s office confirming acceptance
of
offer. There is no explanation as to which offer did the plaintiff
mandate the third party to accept on her behalf, as
the letter
was written three weeks before the actual offer was made. In the
light of the above, it cannot be said that the defendant
entered into
a valid settlement agreement with the plaintiff.
[13]
It is undisputed evidence before me that the Plaintiff never received
any money from the third party. Mr. Coetzer argued that
the Plaintiff
was not a reliable witness; in that she contradicted herself in as
far as her signatures were concerned. He argued
that the only
inference to be drawn based on the proven facts is that the Plaintiff
did mandate the third party to lodge claim
on her behalf. He invited
me to apply the principles laid down in
Govan
v Skidmore 1952 G)
SA
732 (N),
in support of his argument.
[14] I
am not of the view that total rejection of the Plaintiff`s evidence
is the only plausible and appropriate inference to be
drawn from all
the proven facts. There is no evidence before me to show that the
third party was indeed acting on the mandate of
the Plaintiff when it
lodged a claim with the defendant, save that the third party was in
Possession of the plaintiff’s copy
of Identity document, Power
of Attorney and affidavit purported to have been signed by the
Plaintiff. There is no evidence refuting
plaintiff`s version that she
has never been to Johannesburg in her whole life and as such never
appeared before any commissioner
of Oaths in Johannesburg attesting
to an affidavit.
[15]
It is no secret that there have been instances in which Attorneys
have managed to access confidential documents
of road
accident victims directly from the hospitals. Although there is no
evidence before me to show that the third party was
an ‘ambulance
chaser’ in the instant matter, all facts before me, do not
suggest that it had the mandate to lodge a
claim on behalf of the
Plaintiff.
[16]
In assessing the probabilities holistically, the conclusion seems to
be that the Plaintiff’s version is more probable.
The Defendant
has not succeeded in discharging the onus it assumed when prosecuting
its special plea. It follows that the special
plea must fail.
[17] I would have failed
in my duties if the conduct of the third party is left unattended.
Since there is evidence that monies
have been paid into the trust
account of the third party and that such monies were never paid to
the intended beneficiary, its
conduct calls for in depth
investigation by the Law Society of the Northern Provinces, being the
regulatory body in the area where
the third party is plying its
trade.
The following order is
made:-
1.
The
special plea is dismissed with costs;
2.
The
Registrar is directed to serve this order on the Law Society of
the Northern Provinces;
3.
The
Law Society of the Northern Provinces is directed to investigate the
third party for possible misconduct.
_______________
NM
MBHELE, A.J
On Behalf of the
Defendant: Adv. COETZER
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
9301
On Behalf of the
Plaintiff: Adv. Cilliers
Instructed by:
Honey
Attorneys
BLOEMFONTEIN
REF:
HL BUCHNER/ J02239/Suzell
The Third Party:
Chuene
Attorneys
4
Tiger Road
Monument
Park
PRETORIA
0181