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[2013] ZAGPPHC 25
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Sander v Road Accident Fund (38004/2010) [2013] ZAGPPHC 25 (6 February 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 38004/2010
DATE:06/02/2013
In
the matter of:-
KHL
SANDER
..................................................................................
Applicant
and
ROAD
ACCIDENT
FUND
….........................................................
Respondent
JUDGMENT
Van
der Byl AJ:-
[1
] On 19 April 2009, arising out of injuries sustained in a motor
accident, an order __
was
by agreement made in favour of the Applicant in terms of which the
Respondent was ordered, inter alia -
(a)
to pay to the Plaintiff (Applicant) an amount of R202 142,53 in
delictual damages;
(b)
to supply the Plaintiff (Applicant) with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 1996
, in respect of
90 per cent of the accident related future accommodation of him in a
hospital or nursing home or treatment of or
rendering of a service or
supplying of goods to him, to compensate him after the costs have
been incurred and on proof thereof.
[2]
In this application the Applicant now claims an order in terms of
which the Respondent is, in addition to a punitive order of
costs,
ordered -
(a)
to pay the Applicant an amount of R88 200;
(b)
alternatively, to compensate the Applicant for 90 per cent of all
proved expenses incurred in respect of -
(i)
all accident related future accommodation of the Applicant in a
hospital or nursing home;
(ii)
treatment of or rendering of a service or supplying goods to the
Applicant
[3]
The relief claimed is based on allegations made in a founding
affidavit deposed to by the Applicant’s attorney in which
mere
reference is made to -
(a)
three expert reports, Annexures B, C and D (constituting almost 50
pages) which were discovered in the action proceedings by
the
Applicant; and
(b)
a letter he addressed to the Respondent on 11 May 2010 requesting
payment of R88 200 for certain payments as set out in various
so-called pay slips of salaries paid to some five persons he seems to
have employed during the period April 2009 to January 2010.
[4]
The affidavit or the letter referred to contains no particular
reference to paragraphs in the expert reports on which reliance
is
placed upon for the claim and neither the affidavit nor the letter
contain any indication for what purposes the persons were
employed or
what duties each of the employees are to perform or have been
performing.
(I
need to mention that, in having failed to refer in detail to the
Annexures in so far as the Applicant relies on the contents
of those
relatively voluminous documents, the Applicant ignored what was held
in cases, such as, eg., Upschitz & Schwartz NNO
v Markowitz
1976
(3) SA 772
(W) and Swissborough Diamond Mines (Pty) Ltd v Govt of the
RSA
1999 (2) SA 279
(7).
In
the Lipschitz case, supra, the learned Judge held at 775H as follows”
"
“A litigant cannot, as it were, throw a mass of material
contained in the record of an enquiry at the Court and his
opponent,
and merely invite them to read it so as to discover for themselves
some cause of action which might lurk therein, without
identifying
it. If this were permissible,
the
essence of our established practice which is designed and which still
evolves as a means of accurately identifying issues and
conflicts so
that the Court and the litigants should be properly apprised of the
relevant conflicts, would be destroyed”.
In
the Swissborough case, supra, the learned Judge held at 324G as
follows:
“
Regard
being had to the function of affidavits, it is not open to an
applicant ora respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on
which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not
so the essence
of our established practice would be destroyed. A party would not
know what case must be met”.
Apart
from this serious difficulty, the annexures to the founding affidavit
were so badly photostated that they were hardly legible.
The
attorney concerned who prepared, and counsel, if any, who settled,
the papers in this application will, unless they want to
risk an
adverse order of costs against them in future, be well-advised to
follow in future the principles which have over decades
been laid
down by our Courts in respect of the preparation of applications)
[5]
Annexure C is a report of a registered physiotherapist, in which she
documented the physiotherapy treatment the Applicant was
to receive
which seems to be of no
relevance
to the claim of the salaries paid to the various employees he
employed.
[6]
Annexure D is a report of an industrial psychologist to which mere
reference is .. made- without any elaboration and which
likewise
seems not to be of any such
relevance.
[7]
Annexure B is a report of an occupational therapist in which at pages
11 to 13 to which the Court is, without any elaboration,
refereed to,
the necessary expenses to be incurred by the Applicant are set out.
[8]
A reading of those pages discloses that the Applicant will require
the following assistance -
(a)
in the home, assistance once a week;
(b)
in respect of maintenance and the garden, assistance once a week;
(c)
at work, assistance with regard to heavy loading, but it is pointed
out that he was using his garden worker as labourer to assist
with
loading.
[9]
in relation to transport, it is indicated that “the cost of
transport to appointments related to the accident be allowed
at AA
rates", being an indication which I fail to understand.
[10]
As far as accommodation is concerned, it is indicated that the
Applicant should live in a single storey house with non-slip
flooring
and that no structural adjustments are "required.
[11]
As -is-apparent from the Respondent’s answering affidavit, an
expert report of another occupational therapist was discovered
(Annexure RAF 1) by the Respondent in the action proceedings which
contradicts the opinion of the Applicant’s occupational
therapist expressed in Annexure B.
[12]
In this report it is indicated -
(a)
that the Applicant would require no assistance in the home or the
garden;
(b)
that, as far as transport is concerned, he can be expected to
experience more comfort with the use of recommended assistive
devices;
(c)
that, as far as accommodation is concerned, no adjustments need to be
made.
[13]
Apart from the dispute between the two occupational therapists, the
founding affidavit and the expert reports, particularly
Annexure C,
do not in my view constitute any proof for the employment of five
employees (one of whom is his daughter he employed
to perform certain
administrative duties) who were on the face thereof employed on a
full time basis.
[14]
The Applicant for the first time attempted to deal with the functions
and duties of the five persons he employed and, in addition
in a
further attempt to justify the employment of his daughter,
incorporated a new allegation in his case which seems not to have
formed part of his case the action proceedings, to the effect that as
a result of the accident he has a “very bad short term
memory,
and suffer severe headaches”.
[15]
It is trite that in motion proceedings an applicant must in his or
her supporting affidavit set out fully his or her cause
of action. It
is not for the applicant to simply make general allegations, and then
when those allegations are dealt with in reply,
to come forward with
replying affidavits giving details supporting the general allegations
originally set out in the affidavit
supporting the notice of motion
(Mauerberger v Mauerberger, 1948(3) SA 731 (C) at 732; Director of
Hospital Services v Mistry,
1979(1) SA 626 (A), 635H - 636A; Shephard
v Mitchell Cotts Seafreight (SA) (Pty) Ltd, 1984(3) SA 196 (T), 205F;
Johannesburg City
Council v Bruma Thirty-Two (Pty) Ltd, 1984(4) SA 87
(T), 91C- 93E; Bowman NO v De Souza Roldao, 1988(4) SA 326 (T),
327D-H).
[16]
No reasons were furnished or submissions were made why I should
consider the contents of the Applicant's replying affidavit
in so far
as it contains allegations which should have been included in the
founding affidavit and it so far as it contains new
matter.
[17]
Even if regard can or should be have to the replying affidavit, it
appears -
(a)
that the claim in respect of the domestic worker is abandoned
(because of his failure to submit any salary advices in respect
of
that worker);
(b)
that his gardener is indeed used to attend to “do certain jobs
within the business".
[18]
Relying on the report of his occupational therapist (Annexure B) that
in so far
“
as
the assistance at work in respect of heavy loading as per the advice
of Wilma van der Walt (ie., his occupational therapist)”,
he
is, as is apparent from his replying affidavit, making use of the
following employees -
(a)
Meshack Molefe who is his main driver who “does the heavy
lifting himself when there are no large barrels
(b)
Ben Olifant who drives the forklift “which is used to load the
stock at (their) premises and offload the empties
(c)
Koos Ramaishu who is no longer in his employ, but “was used to
assist when the driver needed an extra person to offload
(more
particularly when there were 22kg drums for delivery)”.
[19]
As far as the employment of his daughter is concerned, he points out
that she is employed to deal with the management and administration
“of the business" because it is necessary for her to work
there because, as I have already indicated, as a result of
the
accident he has a “very bad short term memory, and suffer
severe headaches
[20]
In my view there is, for at least two reasons, neither in the
founding affidavit nor the replying affidavit sufficient proof
for
the relief claimed in either prayer 1 or the alternative prayer.
[21]
In the first place I am, because of the discrepancy between the two
occupational therapists, in no position to determine exactly
what
services the Applicant indeed require which can be considered to be
accident related.
[22]
In the second place, even if regard is had to the report of the
Applicant’s occupational therapist, the evidence submitted
by
the Applicant seems to justify no more that the employment of -
(a)
a domestic worker once a week (which claim is, as I have already
indicated, abandoned);
(b)
a gardener once a week who can be used to assist with heavy loading
and who, although it is not quite clear, may, perhaps, be
used all
week for that purpose.
[23]
Instead the Applicant’s by far, and opportunistically, so
exceeds what he seems, subject to acceptable evidence, be entitled
to
claim.
[24]
In the result I am unpersuaded that the Applicant has made any case
for the relief he is claiming and that his application
is wholly
ill-conceived.
[25]
In the premises I make the following order;-
1.
THAT the Applicant’s application be dismissed.
2.
THAT the Applicant be ordered to pay the Respondent’s costs.
PC
VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT:ADV J VORSTER
On
the instructions of :GERT NEL INC
1235
Cobham Road
Queenstown
PRETORIA
Ref:
GN1957/wvz
Tel:
012 329 4518
ON
BEHALF OF THE RESPONDENT:ADV J A KLOPPER
On
the instructions of: MAPONYA INC
950
Pretorius Street Arcadia PRETORIA
Ref:
CB Rangata/mmr/BR1096
(012)662
337
f3b20S23
DATE
OF HEARING: 28 January 2013
JUDGMENT
DELIVERED ON: 6 February 2013