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[2011] ZAFSHC 87
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Road Accident Fund v Phillips (4701/2006) [2011] ZAFSHC 87 (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4701/2006
In
the matter between:-
ROAD
ACCIDENT FUND
…......................................................
Applicant
and
M
A PHILLIPS
…...................................................................
Respondent
_____________________________________________________
HEARD
ON:
19 MAY 2011
_____________________________________________________
DELIVERED
ON:
23 JUNE 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
Introduction
[1]
This application follows upon a claim that was lodged by M/s Maditaba
Apaphia Phillips (the respondent herein) with the Road
Accident Fund
(the applicant) for loss of support for herself and her minor
daughter, Matshediso Anna Phillips (the minor child).
The claim
arises from a motor vehicle accident that occurred on 2 November 2002
near Dewetsdorp, in which Mr. Dikgang Frans Ketso
(the deceased) was
killed. M/s Phillips claimed that she and the deceased were married
to each other by customary union and that
the minor child was the
deceased’s biological child. Consequently she claimed that the
deceased carried a duty of support
toward herself and the minor child
and that whilst alive he maintained them. I shall henceforth refer to
the parties as in the
application.
[2]
When the third party claim could not be settled, the respondent
issued summons. The applicant defended the action and on 5 June
2007
filed its plea. It is noteworthy that, regarding the averments
relating to the existence of the customary union and the paternity
of
the minor child, the applicant’s plea was a bare denial.
Subsequent to the filing of its plea, the applicant was called
upon
to file a discovery affidavit in terms of Rule 35 of the Uniform
Rules. What transpired thereafter will emerge shortly. Suffice
it to
say at this juncture that the applicant failed to discover and this
ultimately led to the grant of the default judgment now
sought to be
rescinded in these proceedings.
The
applications
[3]
There are, in fact, three applications before me. The first was
launched on 3 December 2010 and seeks the following orders:
“
1.
That the default judgment granted herein on 5 June 2008 be rescinded;
2. Condonation
for the late filing of the Applicant’s Discovery Affidavit;
3. Condonation
for the late filing of this application;
4. That the
Applicant be granted leave to proceed with this matter on a defended
basis;
5. That the
Applicant be ordered to pay the costs of this application save in the
event of opposition;
6. Further and
alternative relief.”
I
shall refer to this application as the main application.
[4]
The second and third applications were launched on 23 February 2011
and 13 May 2011 and they seek condonation for the late filing,
respectively, of the replying affidavit in the main application and a
confirmatory affidavit which was mistakenly not annexed to
the
replying affidavit when the latter was delivered. Regarding the
replying affidavit, the parties had agreed on timeframes for
the
filing thereof. The applicant failed to comply with the timelines and
filed its replying affidavit out of time and when it
did file one, a
confirmatory affidavit referred to therein was not annexed, hence the
application for condonation of the late filing
of both affidavits.
The replying affidavit was filed two days out of time. In relation to
the confirmatory affidavit, when the
omission to annex it to the
replying affidavit was spotted, the applicant tendered to file same
but the respondent refused to accept
it.
[5]
Prayer 3 of the main application arises from the fact that the
application was launched some two years and six months after
the
default judgment was granted and clearly condonation for such an
inordinately long delay was needed. In this regard, it is
noteworthy
that the very same application was launched on 31 May 2010, but had
to be withdrawn when it became apparent that a wrong
order had been
targeted. It also suffered from other defects. I was of the view that
it will be in the interest of justice that
the merits of the main
application be canvassed with a view to reaching finality in the
matter and I accordingly granted condonation
for the late filing of
the application. Prayers 2, 4 and 5 are dependent upon prayer 1 being
granted and if it is not, then they
will all fall by the wayside.
Condonation
[6]
At the outset of the hearing, I broached with Mr. Cilliers, counsel
for the respondent, the question of whether there could
be any
prejudice to the respondent if condonation is granted for the late
filing of the replying and confirmatory affidavits and
he conceded
that there could be none save that there would be costs implications.
I accordingly granted condonation. It was important
to grant
condonation at the outset because the relevant affidavits needed to
be properly before me to enable full argument on the
main application
to proceed.
1
The applicable law
[7]
For rescission of a default judgment to be granted under the common
law the applicant must show good or sufficient cause. It
is trite
that this requirement entails two elements. Firstly, the applicant
must give a reasonable and acceptable explanation for
the default.
Secondly, the applicant must show that it has a
bona
fide
defence
pointing so some prospects of success on the merits.
2
Now
what led to the default judgment herein being granted is the failure
to deliver a discovery affidavit. Although the requirements
for
rescission of a default judgment should not be conflated with those
for condonation,
in
casu
,
the two issues are interwoven in the sense that an explanation for
the failure to deliver the discovery affidavit will hold good
for the
default judgment. The first question then is whether the applicant
has given a reasonable and acceptable explanation for
the failure to
file the discovery affidavit.
Is there a
reasonable explanation?
[8]
What emerges from the record is a pathetic story pointing to gross
negligence and blunders on the part of the applicant and/or
its
attorneys.
3
Having
delivered its plea on 1 June 2007, the applicant was requested by a
notice dated 12 June 2007 to deliver its discovery affidavit
by 10
July 2007. There was no response and on 26 July 2007 a reminder was
issued calling upon the discovery affidavit to be delivered
by 22
August 2007. There was no response. On 27 September 2007 the
respondent’s attorney further called for discovery to
be made
by 31 October 2007. There was no response and on 28 February 2008 an
application was served on the applicant’s correspondents
to
compel discovery. There was still no response and on 17 March 2008 an
order was duly granted compelling the applicant to file
its discovery
affidavit within ten days, meaning that it had to be filed by 2 April
2008. There was still no response from the
applicant’s
attorneys and on 12 May 2008 an application was served on the
applicant’s Bloemfontein correspondents seeking
an order to
strike out the applicant’s defence. Still there was no response
and on 5 June 2008 an order was granted striking
out the applicant’s
defence (as defendant) with costs.
[9] It will be noted that
some twelve months (one year) had elapsed from the date on which the
applicant was first requested to
make discovery, up to the granting
of the order striking out its defence. And what is the explanation
for this? What immediately
strikes one as peculiar in this regard is
that the applicant’s founding affidavit was deposed to by its
employee, one Annemarie
Hammond, who had no personal knowledge of
what transpired in the offices of the applicant’s attorneys,
where most of the
problems in the handling of the case are located.
Hence throughout her affidavit, Hammond relies on what M/s Rangata
told her.
The latter is the attorney who handled the matter in the
offices of the applicant’s attorneys. One would have expected
the
attorney to herself deposed to the founding affidavit.
[10] It is apposite to
reproduce paragraphs 5.13 – 5.16 of the applicant’s
founding affidavit:
“
5.13 On or
about 27 September 2007, Messrs Honey Attorneys forwarded a letter to
the Applicant’s Correspondent Attorneys in
Bloemfontein, Messrs
Symington & De Kok, requesting that the Applicant’s
Discovery Affidavit be served by no later than
31 October 2007. A
copy of the letter dated 27 September 2007 is attached hereto marked
annexure “
I
”.
5.14 I was advised by Mrs. Rangata
that Messrs Symington & De Kok reported to her that they sent the
letter discussed in paragraph
5.13 above to Messrs Maponya’s
offices via docex on 28
th
September 2010 (sic), under
cover of a letter dated 28
th
September 2010 (sic). The
court is in this regard, referred to the letter dated 28
th
September 2007, which is attached hereto marked annexure “
12
”.
I was further advised by Mrs. Rangata that the said letter never came
to her attention as it was either misfiled or misplaced,
and that she
only became aware of the letter on 3
rd
March 2008 when
Messrs Symington & De Kok transmitted the letter as well as the
Notice of Motion to her offices.
5.15 I note
that, together with the letter as discussed in paragraphs 5.13 and
5.14 above, an Application to Compel, set down for
13 March 2008, was
attached. A copy of the Notice is attached hereto marked annexure
“
J
”.
The Court should note that the Notice was served on attorneys
Symington de Kok on 26 February 2008 only.
5.16 I was
informed by Mrs. Rangata that, as a result of what appears to have
been an administrative error on their side, the letter
as discussed
in paragraph 5.13 and the Notice to Compel as discussed in paragraph
5.15 were misfiled or mislaid and that she was
not aware of the
letter or the Notice to Compel.”
[11]
The letter dated 28 September 2007 referred to above, makes it clear
that the applicant’s attorneys had been informed
by an earlier
letter dated 13 August 2007 about the notice to discover, but the
deponent to the applicant’s founding affidavit
says nothing
about this, giving the impression that they were only informed of
this request to discover for the first time in September
2007. The
deponent to the founding affidavit says that M/s Rangata (the
attorney handling the matter) only became aware of the
letter on 3
March 2008, a copy of which had been faxed to her together with copy
of the application to compel, which was set down
for 13 March 2008.
From this it is evident that she was aware that the application would
be heard on 13 March 2008 and this would
call for an explanation of
what was done to avoid the order to compel being granted. The
explanation proffered is that she was
awaiting contents of the Road
Accident Fund’s file to enable her to prepare the requested
affidavit. Yet the letter requesting
the information was written on
26 March 2008, which is after the application would have been heard.
There is no explanation whatsoever
what steps were taken to prevent
the granting of the orders to compel and to strike out the defence.
[12]
It is unnecessary to catalogue further the unacceptable explanations
given for the failure to file the discovery affidavit
and failure to
forestall the striking out of the applicant’s defence. Suffice
it to say that the explanations range from
administrative chaos in
the office of the applicant’s attorneys, the pressure of work
in that office, the failure of the
applicant (Road Accident Fund) to
timeously furnish their attorneys with the necessary information and
inexperience or ineptitude
on the part of some people who were
involved in the handling of the matter. In oral argument, M/s
Granova, who appeared for the
applicant, could not argue with any
confidence that the explanation tendered by the applicant was
reasonable and acceptable. She
made it clear that the only ground
upon which she would press for the granting of rescission was the
presence of a
bona fide
defence pointing to what she called
“strong prospects of success on the merits”, an issue to
which I now turn.
Is
there a
bona fide
defence?
[13]
It should be noted that the applicant ultimately filed the discovery
affidavit on 19 July 2008, a month after the defence had
been struck
out. The respondent had in the meantime set down the matter for
hearing on 14 October 2008. On that day the applicant
was represented
at court and the parties reached an agreement in terms of which the
applicant conceded full liability for the respondent’s
claim.
The agreement was made an order of court and it reads as follows:
“
IT
IS ORDERED THAT: (By agreement)
1. Defendant is
liable for payment of the plaintiff’s full (100%) proven or
agreed damages.
2. Defendant is
liable for payment of the plaintiff’s taxed or agreed party and
party costs, on High Court scale, pertaining
to the merits trial.”
[14]
It is noteworthy that this order was not challenged in these
proceedings nor was there any attempt to have it set aside or
varied.
What the applicant seeks is that the order striking out its defence
should be set aside so that its defence should be reinstated,
thus
enabling it to continue to defend the action on the merits. The
defence that the applicant wishes to put up, is to the effect
that
the respondent has no
locus
standi
in
this matter as the deceased owed her no duty of support because they
were not married and also that the deceased was not the
biological
father of the minor child. In support of this defence, the applicant
annexed to its papers affidavits by the deceased’s
father and
mother in which they deny the existence of any customary union
between the deceased and the respondent, as well as denying
that the
deceased was the biological father of the minor child. In effect, the
applicant alleges that the respondent’s third
party claim is
fraudulent.
[15]
During the course of oral argument I asked M/s Granova why was such a
grave allegation not disclosed in the applicant’s
plea and she
disclosed that when the plea was drawn the applicant had not yet
investigated the merits of the claim and hence its
plea of a bare
denial. It was only on 23 October 2008 that the reports of the
applicant’s assessors became available and
it was then that the
true position became known. This would mean that when the applicant
accepted liability as per court order
dated 14 October 2008, it was
not aware of the true position.
[16]
However, the applicant did not aver in its papers that it only became
aware of the alleged fraud after it had accepted full
liability for
the respondent’s claim and has also not sought a variation of
the court order. In fact, its case was not argued
along these lines.
Instead, counsel for the appellant argued that, by consenting to the
order, the applicant did not thereby concede
full liability for the
respondent’s claim. She referred to the judgment in
KRAWA
NO v ROAD ACCIDENT FUND
4
and submitted that the
issue of whether the deceased had been under a duty of support in
relation to the respondent and her child
had not been admitted. This
implies that to her (counsel for the applicant) the order of 14
October 2008 was irrelevant, which
explains why there was no
application to set it aside.
[17] In countering the
argument that the court order did not entail admission of full
liability for the respondent’s claim,
Mr. Cilliers pointed out
that after the consent order was granted, the matter was again set
down for the hearing of evidence on
quantum. For the purpose of such
hearing a pre-trial conference was held on 12 November 2009 at which
the applicant was represented.
Counsel referred to paragraph 6 of the
pre-trial minutes, which reads as follows:
“
Die partye
bevestig dat die kwantum van die Eiser se skade die enigste
uitstaande geskilpunt is aangesien die meriete op 14 Oktober
2008
afgehandel is op die basis dat die Verweerder volle aanspreeklikheid
aanvaar vir die betaling van die Eiser se ooreengekome
of bewese
skade.”
Mr.
Cilliers submitted that this is confirmation of what the parties had
all along accepted, namely, that the order of 14 October
2008
encompassed settlement of all issues relating to the merits,
including the
locus
standi
of
the respondent, and that only quantum remained outstanding. He
submitted that this is in line with the decision in
TOLSTRUP
NO v KWAPA NO
5
.
Counsel referred in particular to the following passage at 77 F –
G:
“
An agreement
or finding on liability (which is the equivalent of the merits')
clearly disposes of everything bar the
quantum
of
damages, and hence the willingness to afford the plaintiff interim
payments.
Quantum
would
not include a consideration of defences on the merits, be they
defences raised by way of special plea, such as lack of jurisdiction,
non
locus standi
,
prescription or the like, or substantive defences such as absence of
negligence, mistaken identity, contributory negligence and
so on, all
of which relate to
whether
damages
are payable. Once that is out of the way, the parties can concern
themselves with
how
much
is
payable.”
[18] Quite clearly
KRAWA
provides no support for the proposition advanced by M/s Granova. In
that case, Bloem AJ made it clear that the admission of liability
specifically covered everything except quantum. The learned judge
found that the issue of whether the deceased, while alive, was
under
a duty to support the plaintiff, fell within the merits. If there was
any doubt in the instant case about what elements were
incorporated
in the applicant’s acceptance of liability for the respondent’s
damages, this was dispelled by paragraph
6 of the pre-trial minutes
which recorded that only the quantum of the respondent’s claim
was outstanding. Besides, I agree
with the dictum in
TOLSTRUP
quoted above, which is not contradicted by
KRAWA
.
[19] I accordingly
conclude that the merits in this matter have finally been determined
by a court of law and the issue is now
res judicata
. As long
as the order of 14 October 2008 stands, a defence on the merits
cannot be reopened and is irrelevant. It cannot therefore
be said
that there is a
bona fide
defence for the purpose of the
application before me. In the premises, sufficient cause has not been
shown in this case.
[20] Faced with the
difficulty caused by the failure to apply for the setting aside of
the order of 14 October 2008 counsel for
the applicant submitted,
belatedly, that the prayers to the notice of motion were wide enough
to include the setting aside of that
order and urged me to do so.
Unfortunately no case has been made out in the papers for such an
order, assuming that it can be granted.
In fact, nothing is said
about it and when I raised it, counsel for the appellant sidefooted
it by raising the rather bizarre argument
discussed in para [16],
[17] and [18] above.
Conclusion
[21] In conclusion, I
wish to state that the possibility that the respondent’s claim
may be fraudulent, is a worrying one
indeed and I note that the
respondent did not pertinently deal with the averments contained in
the affidavits of the deceased’s
parents. However, I can find
no basis for granting rescission purely because of the possibility
that fraud may have been committed
(and it is only a possibility at
this stage). Moreover, there are other considerations to be taken
into account, the foremost of
which is that the applicant had more
than ample opportunity to investigate the claim before summons was
issued, or at the very
least, before filing its plea. I say this
because the claim was lodged on 31 October 2005 and a whole year and
seven months elapsed
before the plea was delivered. Interestingly, by
the time that the pre-trial conference was held on 12 November 2009,
the applicant
was already in possession of its assessors’
report. Yet its representative confirmed settlement of the merits at
the conference.
And it is not as if the applicant will have no remedy
if it can prove the alleged fraud.
Costs
[22] Regarding costs,
whereas I granted the condonation applied for in respect of the
replying and the confirmatory affidavits,
this was purely in order to
enable full argument to be heard on the main application and not
because the applicant had given a
reasonable explanation for same. At
the same time I think that the respondent acted unreasonably in
opposing these two applications
and she is not entitled to the costs
thereof.
Order
[23] In the premises, I
make the following orders:
1. The main application
for rescission is dismissed with costs.
2. No costs order is made
in respect of the applications for condonation of the late filing of
the replying and the confirmatory
affidavits.
____________
H.M. MUSI, JP
On
behalf of applicant: Adv. A. Granova
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of respondent: Adv. H.J. Cilliers
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
/sp
1
Compare
WALTLOO MEAT AND CHICKEN SA
(PTY) LTD v SILVY LUIS (PTY) LTD AND OTHERS
[2008] ZAGPHC 136
;
2008
(5) SA 461
(TPD).
2
See
Herbstein and Van Winsen,
The Cicil
Practice of the High Courts of South Africa
,
5
th
Edition
by Cilliers, Loots and Nel, Volume 1 at p. 398 and the authorities
cited in footnote 170.
3
The
applicant’s attorneys are Maponya Incorporated of Pretoria,
who appointed Symington & De Kok as their Bloemfontein
correspondents. There has been no suggestion that Symington & De
Kok share any blame for the poor handling of the applicant’s
case and hence they have not been called upon to explain anything
and significantly they have not filed any affidavit in the
matter.
In this judgment where I refer to the applicant’s attorneys,
this shall be reference only to Maponya Incorporated.
4
2010
(6) SA 550
(ECG)
5
2002
(5) SA 73
(WLD)