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[2012] ZAGPPHC 191
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Shabangu v Road Accident Fund (24856/2012) [2012] ZAGPPHC 191; 2013 (3) SA 245 (GNP) (24 August 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 24856/2012
DATE:24/08/2012
In
the matter between:
PRECIOUS
ZODWA
SHABANGU
…............................................................
Applicant
and
ROAD
ACCIDENT
FUND
..............................................................................
Respondent
JUDGMENT
F.
DIEDERICKS (AJ)
[1]
This is an application where Applicant seeks relief that an action
which she instituted against Respondent in the Magistrate's
Court,
district Pietersburg, under case number 1224/2010, be transferred to
the High Court of South Africa, North Gauteng. Respondent
did not
oppose the application.
[2]
Applicant alleges in her Founding Affidavit, read with the annexures
attached thereto, that she instituted action, as aforementioned,
against Respondent for damages suffered by her due to injuries that
she incurred as a result of the negligent driving of a motor
vehicle
with registration number AAF 3754. She was apparently a "fair
paying passenger" in vehicle with registration
number AAF 3754
at the time of the accident which occurred on the 25th of November
2005.
[3]
At the time of the accident, the
Road Accident Fund Act, 1996
, Act 56
of 1996 (the "Old Act") was applicable and Plaintiffs claim
was, according to her, subject to the restriction
of recoverable
damage as contemplated in Section 18(1)(a) of the Act.
[4]
Applicant's claim against Respondent was allegedly therefore, as a
passenger "conveyed for reward", restricted to
an amount of
R25,000.00 (special and general damages), plus the cost of recovery
of her claim.
[5]
Applicant attached medico-legal reports of the following medical
experts to her application, i.e. Dr. J. D. Erlank (Plastic
and
Reconstructive Surgeon), Karen Adams (Clinical Psychologist) and Dr.
Daan de Klerk (Neurosurgeon).
[6]
It is evident from the contents of these reports that the Applicant
suffered serious injuries with subsequent serious sequelae.
[7]
Applicant now claims an amount of R700,000.00, computed as follows:
[7.1]
Future medical
expenses..............................................................
R100,000.00;
[7.2]
Loss of earnings/earning
capacity............................................... R300,000.00;
[7.3]
General
damages........................................................
…..............R300,000.00;
Total..........................................................................................................
R700,000.00.
[8]
In my view, having regard to the contents of the above reports, the
quantum of Applicant's claim, without finding that it is
worth
R700,000.00, might on trial found to be beyond the jurisdiction of a
Magistrate's Court.
[9]
Parliament has since passed the Road Accident Amendment Act,
2005,
Act 19
of 2005 (the Amendment Act), removing the cap that existed in
terms of Section 18 of the provisions of the Act (56/1996), effective
1 August 2012.
[10]
The High Court held Section 18(1)(a)(i), 18(1)(b) and 18(2) of the
Old Act to be invalid on constitutional grounds by virtue
of its
discriminatory nature. The invalidity order of the High Court was
challenged in the case of Mvuvu v Minister of Transport
2011 (2) SA
473
(CC).
[11]
Having confirmed the invalidity order of the High Court, the
Constitutional Court suspended same for 18 months to afford
Parliament
the opportunity to fix the problem.
[12]
The Constitutional Court remarked as follows regarding the fate of
Section 18 of the Old Act in the Mvuvu-case
"[53]
The considerations mentioned above point to the fact that Parliament
is best suited to determine the extent of compensation
to which the
applicants are entitled. It is regrettable that, when Parliament
decided to cure the defect, it left their position
unaltered.
Nonetheless, I am of the view that the matter must be remitted to
Parliament for it to provide relief for the inequality
which the old
scheme continues to cause. Therefore, I intend to suspend the
invalidity order for 18 months to give Parliament the
opportunity to
fix the problem.
[54]
But if Parliament fails to cure the defect within the period stated
above, the invalidity order will come into operation with
immediate
effect and it will operate retrospectively to the date on which the
Act came into force. What this means is that the
applicants will be
entitled to unlimited compensation, as if the cap was never enacted.
However, the declaration of invalidity
ought not to apply to claims
in respect of which a final settlement has been reached, or a final
judgment has been granted, before
the date of this judgment."
[13]
Judgment was delivered by the Constitutional Court in the
Mvuvu-matter on the 17th of February 2011. The time frame of 18
months for Parliament to cure the above impugned provision expired on
the 17th of August 2012.
[14]
The Constitutional Court has however, on application by the Minister
of Transport and the Road Accident Fund on 14th August
2012, extended
the above time frame for a further six months i.e. to the 16th of
February 2013.
THE
PLEADINGS (ON MERITS)
[15]
In her Particulars of Claim in the Magistrate's Court ( attached as
annexure PZS 2 to Applicants founding affidavit ), Applicant
alleges
that two motor vehicles were involved in the accident that took place
on the 25th of November 2005.
[16]
The two vehicles involved were motor vehicle with registration number
DHG 802 N, driven by P. D. du Preez, referred to as the
"insured
vehicle" and motor vehicle with registration number AAF 3754,
driven by G. T. Mbambo, residing at Bulawayo,
Zimbabwe.
[17]
Applicant pleads in paragraph 5 of her Particulars of Claim that she
was a "fair paying" passenger in the latter
motor vehicle.
[18]
In paragraph 7 of the Particulars of Claim the grounds of negligence
of the "insured vehicle" (referring to the vehicle
driven
by Du Preez) is pleaded. This includes, to mention but one ground of
negligence, that: "he (Du Preez) entered an intersection
disregarding a red light".
[19]
In paragraph 10 of her Particulars of Claim Applicant, relying inter
alia on the medical report of J. D. Erlank (as aforementioned),
claims an amount of R99,800.00 computed as follows:
[19.1]
Future medical
expenses...........................................................
R31,800.00;
[19.2]
Surgical
treatment....................................................................
R38.800.00;
[19.3]
General
damages....................................................................
R68,000.00;
Total....................................................................................................
R99,800.00.
[20]
Although Applicant only attached her Particulars of Claim to her
application, reference is made in paragraph 3 of her Affidavit
to the
pleadings filed off record.
[21]
In these pleadings filed "off record" Defendant's Plea is
included.
[22]
Defendant in short pleaded a denial of the alleged negligence of the
insured driver (Du Preez) and Plaintiff is put to the
proof thereof
(paragraph 4 of Defendant's Plea).
[23]
In the alternative, Defendant pleaded that: "In the event that
the Honourable Court finds that the vehicle in which Plaintiff
was a
passenger, was the sole cause of the collision, Defendant pleads that
the Plaintiff's claim is limited to R25,000.00 special
damages."
APPLICANT'S
FOUNDING AFFIDAVIT (ON MERITS)
[24]
Applicant, mentions in paragraph 3.1 of her Founding Affidavit, that
she persisted with her action on the basis as pleaded
above, adding
that the action was set down for hearing on numerous occasions in the
Magistrate's Court for the district of Pietersburg.
[25]
Applicant further mentions in paragraph 3.1 of her Founding Affidavit
that the case was postponed on request of Respondent.
The reasons
advanced by Applicant for such postponements was due to the fact that
the Mvuvu-case pertaining to constitutionality
of limited claims of
paying passengers in a motor vehicle was pending.
[26]
I have no doubt in my mind that Applicant, from the reading of the
pleadings in the Magistrate's Court, never instituted and/or
pursued
her claim on the basis that it was limited in terms of Section 18 of
the Old Act. Applicant did not even foreshadow such
possibility as an
Alternative in her pleadings.
[27]
It is clear from the pleadings that she instituted her claim as an
unlimited claim, based on the alleged negligence of the
driver of the
motor vehicle in which she was not a passenger at all. This, in spite
of her having prior knowledge of the fact that
the collision occurred
as a result of the sole negligence of the motor vehicle in which she
was a "fair paying" passenger.
[28]
The above is confirmed in the Supporting Affidavit of Applicant's
attorney, Martha Christina Steyn. (Annexure "MCS1").
[29]
Steyn states as follows in paragraphs 6.1 and 6.2 of her Supporting
Affidavit:
"6.1
I am of the respectful opinion that the damages suffered by the
Plaintiff and still to be suffered by the Plaintiff exceeds
the
jurisdiction of the Magistrate's Court and that the action should be
transferred to the above Honourable Court for the determination
of
quantum.
6.2
The Plaintiff was a passenger in a taxi and the Plaintiff can recall
that the driver of the taxi disobeyed a red traffic sign
and entered
the intersection and then collided with another car crossing on a
green signal. The sole cause of the accident was
due to the
negligence of the taxi driver." ( Emphasis added )
[30]
The contents of the above is obviously in direct contrast to the
allegations made by Applicant in her Particulars of Claim
as outlined
above.
[31]
Applicant did not file a copy of the affidavit that was filed by her
or on her behalf in terms of Section 19(f)(i) of the Act
at the time
that her claim was launched with Respondent.
[32]
Applicant now approaches this Court on the basis that her claim was
limited to R25,000.00, thereby seemingly accepting the
allegations
made by Respondent that the accident was caused by the sole
negligence of the driver of the motor vehicle in which
she was a
"fair paying" passenger.
[33]
From the above Applicant now seemingly fears that she is finding
herself on a course of possible self-destruction if it is
found that
the vehicle in which she was a "fair paying" passenger was
the sole cause of the accident.
[34]
In an effort to remedy the above, Applicant approached this Court for
transferal of her case to this Court, in order to proceed
on a basis
(limitation of her claim in terms of Section 18) which was never the
case that she pursued in the Magistrate's Court.
[35]
Adv. S. Cilliers, appearing for Applicant, argues that Applicant's
claim falls within the ambit of the Mvuvu-case and that
her claim
against Respondent subsequently should not be limited to R25,000.00
as before. In that event, so it is argued, Applicant's
claim would be
beyond the jurisdiction of the Magistrate's Court including the
Regional Magistrates court and should therefore
be transferred to the
High
Court.
Advocate Cilliers filed comprehensive heads of arguments, for which I
thank her, in support of all submissions made on behalf
of her
client.
[36]
I was referred to the matter of Oosthuizen v Road Accident Fund
2011(6) SA 31 (SCA) and it was argued that the facts in casu
differs
substantially from the facts in the Oosthuizen-case
[37]
It was further argued that the Supreme Court of Appeal (in the
Oosthuizen-matter) envisaged that there may be a case or cases
in
which it would be acceptable to fashion a constitutionally acceptable
remedy because of the interest of justice.
[38]
The argument went further to submit that Applicant's case is a
suitable case to fashion such a constitutionally acceptable
remedy in
the interest of justice.
[39]
In my view it is clear from the judgment in the Oosthuizen-case that,
albeit so that High Courts has inherent powers to regulate
its own
process, these powers does not extent to the assumption of
jurisdiction which it does not otherwise have. (Oosthuizen v
Road
Accident Fund: p. 37 - par. D/E).
[40]
It is also clear that Section 173 of the Constitution does not give a
High Court jurisdiction to interfere or meddle in the
affairs of
inferior courts.
[41]
It was clearly stated in Oosthuizen's case (p. 37: par. F/G) that a
High Court can therefore not stray beyond the compass of
Section 173
by assuming powers it does not have.
[42]
I was further referred to the dictum of Botha J (as quoted in the
Oosthuizen-case) in Moulded Components and Rotomoulding South
Africa
(Ptv) Ltd v Coucourakis & Another 1979(2) SA 457 (W) at 462H -
463B, where the learned Judge remarked as follows with
regard to the
exercise of a Court's inherent power to regulate procedure:
"I
would sound a word of caution generally in regard to the exercise of
the Court's inherent power to regulate procedure. Obviously,
I think,
such inherent power will not be exercised as a matter of course. The
Rules are there to regulate the practice and procedure
of the Court
in general terms and strong grounds would have to be advanced, in my
view, to persuade the Court to act outside the
powers provided for
specifically in the Rules. Its inherent power, in other words, is
something that will be exercised sparingly.
As has been said in the
cases quoted earlier, I think that the Court will exercise an
inherent jurisdiction whenever justice requires
that it should do so.
I shall not attempt a definition of the concept of justice in this
context. I shall simply say that, as I
see the position, the Court
will only come to the assistance of an applicant outside the
provisions of the Rules when the
Court
can be satisfied that justice cannot be properly done unless relief
is granted to the applicant"
[43]
It was, in view of the above dictum, submitted that the High Court
has inherent power to regulate its own process, therefore,
in the
current process before me (the application to transfer), this Court
would have inherent jurisdiction to transfer the matter
from the
Magistrate's Court to the High Court.
[44]
In order to fit this application into the "category" of
cases that were envisaged as those calling upon a Court to
fashion a
constitutionally acceptable remedy to litigants in the interest of
justice, I was referred to Sections 9 and 34 of the
Constitution.
[45]
These Sections deals respectively with "equality before the law"
(Section 9) and "access to Courts" (Section
34).
[46]
Applicant did not make out a case in her Founding Affidavit to
challenge the constitutionality of legislation (including the
Rules)
dealing with the transfer of cases from the Magistrate's Court to the
High Court. To raise this issue in argument without
notice to the
relevant Minister would to my mind be irregular and I subsequently do
not deem it necessary to deal with this issue
any further.
[47]
The argument that the facts in Applicant's case is clearly
distinguishable to those facts in the Oosthuizen-matter is not
convincing.
[48]
I have already alluded above to the contradicting versions tendered
in Applicant's Particulars of Claim compared to the version
contained
in her Founding Affidavit. In my view Applicants pleadings in the
Magistrates court reveals that she finds herself in
a much similar
situation as did Plaintiff in the Oosthuizen-matter.
[49]
It would seem that, as the pleadings are at the moment, Applicant's
"unlimited claim" could at best be described
to be existing
in vacuo.
[50]
For this Court to pursue an approach to Applicant's pleadings in the
Magistrate's Court by applying the contents of her Affidavit
thereto,
would be tantamount to meddling in the affairs of the Magistrate's
Court.
[51]
Applicant's claim is presently pending in the Magistrate's Court and
it is in that forum that she should seek an amendment
to her
Particulars of Claim, in order to introduce a so-called Section 18
(limited) claim, if advised to do so.
[52]
It cannot be overemphasised that litigants should take heed that, to
my mind, the Pleadings will determine whether or not a
plaintiffs
claim falls within the ambit of the Mvuvu-case and that a mere
allegation in the air would not suffice.
[53]
I do, however, agree that there might be a case or cases in future in
which it might be necessary to fashion a constitutionally
acceptable
remedy because of the interest of justice, to transfer cases from a
Magistrates court to a High court, but I do not
regard Applicant's
case as the opportune case to consider that possibility.
[54]
I deem it necessary, in conclusion, to refer to the current state of
affairs regarding Legislation that was anticipated by
the
Constitutional Court in the Mvuvu -case.
THE
ROAD ACCIDENT AMENDMENT BILL 2011
[55]
On 15th of August 2011, Parliament published the Road Accident Fund
(Transitional Provisions) Amendment Bill of 2011, (the
Amendment
Bill) for public comments, in Government Gazette 34530 dated 15th of
August 2011. (Notice 557/2011).
[56]
The Amendment Bill contains Transitional Provisions and seeks to
provide for transitional measures in respect of certain categories
of
third parties whose claims were limited under the Old Act, and to
give effect to the Constitutional Court Judgment of Mvuvu
v Minister
of Transport.
[57]
As matters stand at present, the Minister of Transport has given
notice of his intention to introduce the Road Accident Fund
(Transitional Provisions) Bill, 2012 in Parliament during the year
2012. (See General Notice 487 of 2012, Government Gazette No.
35426
dated 6 June 2012). At date of this judgement, this has not as yet
transpired.
[58]
I do not deem it necessary to comment on the content of the
Transitional Provisions Bill, save to say that in reading the Bill,
it is conspicuous that Parliament regrettably failed to include a
section providing for the transferral of cases from the Magistrates
courts to the High courts while this was an opportune time to do so.
The Road Accident Fund raised the issue of shortage of funds
in the
Mvuvu-case. In my view the inclusion of such a provision could have
effectively saved the Road Accident Fund substantial
costs if matters
could be transferred to a High court in terms of the Act, instead of
litigants having to issue summons afresh.
Especially in those cases
where pleadings have already closed.
[59]
Section 50(1)
of the
Magistrate's Courts Act 32 of 1944
provides for
the transfer of a case from the Magistrate's Court to a High Court,
only at the instance of a Defendant.
[60]
Section 35(1) of the Magistrate's Courts Act 32 of 1944 (as amended)
provides for the transferral of a case from the District
Magistrates
Court to the Regional Magistrates Court, but not to a High Court.
[61]
Reference is specifically made to the above in order to caution
litigants to carefully consider the quantum of damages of plaintiffs.
In doing so, this might stem an unnecessary flow of litigation to
this court which could otherwise have been proceeded with in
a
Regional Division of the Magistrates court which now has jurisdiction
to hear cases with a quantum up to R300, 000.00.
[62]
Compliance to the above will not only contribute towards the
enhancement of the performance of courts in South Africa in general
but will also ensure that litigants have access to courts in their
close proximity which will, to that end, eliminate high travelling
cost to and from High courts.
[63]
Failure to take this caution to heart may be met with an appropriate
cost order.
[64]
Accordingly, Applicant's application for the transferal of her action
instituted in the Magistrate's Court, district Pietersburg,
under
case number 1224/2010 is refused.
[65]
No cost order is made.
SIGNED
AT PRETORIA ON THIS THE 23rd DAY OF AUGUST 2012
DIEDERICKS
(AJ)
For
the plaintiff's: kampherbeek, Twine and Pogrund
…
.......................
Polokwane
Adv:
S Cilliers
For
the defendant's: Mothle Jooma
…
............................
Sabdia
Inc
Heard
on: 08/06/2012
Date
of Judgment:24/08/2012