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[2014] ZAGPPHC 245
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Road Accident Fund v Tlhomedi (69607/11) [2014] ZAGPPHC 245 (25 March 2014)
REPUBLIC
OF SOUTH AFRICA
NORTH GAUTENG HIGH
COURT
PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE
NO: 69607/11
In
the matter between:
ROAD
ACCIDENT
FUND
APPLICANT
AND
TLHOMEDI
KGOMOTSO
WINNIFRED
RERESPONDENT
JUDGMENT
BAQWA
J
[1]
This is judgment on substantive application brought by the defendant
for a postponement of this matter which had been set down
for trial
on both the merits and quantum.
[2]
The application is brought in the face of a very clear directive
issued by this court in the context of case management practice
implemented by this court to prevent applications of the nature that
I have to deal with today. This directive reads as follows:
‘’
Please
note that trial matters on the roll have been enrolled to be
allocated to a court or a Judge to be heard and NOT to be stood
down
for settlement negotiations or for instructions from client.
Trial matters that are
not ready to be heard on the date of hearing should be removed from
the trial roll otherwise an appropriate
cost order will be made.
You
are further directed to inform your opponent in writing about the
date of this pre-trial.’’
[3]
The application, as submitted by plaintiff’s counsel rests on
three legs, the main one being the absence of a material
witness, the
insured driver Mr Bloem, lack of readiness for trial regarding the
issue of quantum and the need to appoint a
curator
ad litem
for the plaintiff.
[4]
Mr Farrell for the plaintiff, has made submissions regarding the lack
of readiness for trial on quantum and the appointment
of a
curator
ad litem
. He submits that plaintiff is
indeed ready and has subpoenaed witnesses to proceed on this aspect.
He further submits that there
is no factual or medical basis for the
appointment of a
curator ad item
.
In any event, this could in my view not be a issue for defendants
consideration but would be a matter to be more primarily considered
by plaintiff if it were an issue at all.
[5]
The duty of the defendant is set out in the judgment of the
Honourable Madam Justice Maya JA in
Madzunye v Road Accident Fund
2007(1) SA 165
paragraph 17
at which she stated as
follows:
In an
unreported judgment of this Court,
Road
Accident Fund v Roman Klisiewics, case No 192/2001
,
handed down on 29 May 2002, Howie JA set out the extent of the
respondent’s responsibilities, saying in para [42]:
‘
The
[Road Accident 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.’
[6]
Without going into detail regarding the omissions of the defendant
herein it is quite clear to me even upon reading of the affidavit
on
which the application based that there is a belated flurry of
activity beginning with the instructions to an assessor in Kuruman
only in January 2014.
[7]
This happens regarding a matter which was brought to court in 2010
some four years ago. To borrow from applicant’s counsel
it
appears that applicant was either dismissive of this court’s
practice directive which I have referred to or adopted a
shockingly
supine attitude towards taking timeous steps to advance its defence.
It does indeed seem that defendant was until recently
‘’at
sea’’ regarding such defence, hence the recent flurry of
activity with regard to the assessor, the
subpoena, calls for the
insured driver, his employer and communications to the plaintiff’s
legal representatives.
[8]
Taking all those facts into consideration I am satisfied that the
defendant has failed to carry out its duties thus far as set
out by
the Honourable Justice Maya.
[9]
Having set out that background, there are more factors which I have
had to consider. Defendant submits :
‘’
9.1.
The applicant’s request for a postponement is bona fide and not
an attempt to unnecessarily delay the proceedings;
9.2. The applicant is
a legal entity with a social responsibility to compensate victims of
motor vehicle accidents in accordance
with the Road Accident Fund Act
56 of 1996 (as amended);
9.3. The respondent is
claiming an substantial amount in excess of four million rand, and
therefore any apportionment on the merits,
by a finding of a trial
court, may have a substantial impact on the quantum of the
respondent’s claim;
9.4.
It is the legal duty of the applicant to protect public funds, and to
make out a case to the above Honourable Court for the
respondent’s
reasonable compensation.’’
[10]
Defendant submits further that this is the first time it applies for
a postponement. I have therefore had to weigh these considerations
more particularly the consequences of a refusal of postponement
whilst bearing in mind defendant’s public responsibilities.
[11]
I have come to the conclusion that the circumstances justify the
granting of the application.
[12]
At the same time I need to put on record that the court takes a very
dim view of the manner in which the defendant has conducted
the
pursuit of a defence thus far especially in the light of the practice
directive referred to earlier.
In the result I deem the
following to be an appropriate order:
(1)
This matter is postponed
sine
die
.
(2)
Defendant is ordered to pay the wasted
costs with regard to both the merits and quantum on an attorney and
client scale. Those costs
shall include costs of experts who have
been subpoenaed by plaintiff in terms of Rule 36(9)(a) and (b).
___________________
S.A.M BAQWA
(JUDGE
OF THE HIGH COURT)
Counsel
for the
applicant;
Adv AJP Bouwer
Instructed
by:
Fourie Fismer Inc
Counsel
for the respondents:
Adv S Farrel
Instructed
by:
Levin van Zyl Inc