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[2010] ZAFSHC 62
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Padongelukfonds v Templeton (A99/2009) [2010] ZAFSHC 62 (1 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: A99/2009
In the appeal of:
DIE
PADONGELUKFONDS
Appellant
and
NADINE
MARGARET TEMPLETON
Respondent
CORAM:
RAMPAI,
J
et
VAN DER MERWE, J
et
MTHEMBU,
AJ
JUDGEMENT:
RAMPAI, J
HEARD
ON:
19 MAY 2010
_______________________________________________________
DELIVERED
ON:
1 JULY 2010
[1] This is an appeal
against the judgment and the resultant order by a single judge. The
judgment in the court
a
quo
was
given in favour of the plaintiff, the respondent in these proceedings
on 18 Febuary 2009. The scope of the appeal is limited
to the merits
only. The appeal is opposed.
[2] The appeal is
accompanied by a condonation application. The appeal was not filed
in good time. The defendant, now the appellant,
seeks to have such
delay condoned so that the substantive merits may be considered an
appeal. The condonation application is likewise
opposed.
[3] I shall refer to the
parties as they were referred to in the court
a
quo
,
namely: the defendant and the plaintiff. The plaintiff had sued the
defendant for the payment of the sum of R754 402,68 and
certain
ancillary relief. The amount claimed represented the sum of damages
which the plaintiff alleged she suffered as result
of certain bodily
injuries she alleged she sustained in a road accident.
[4] In the supplementary
condonation application the plaintiff alleged that the incident took
place in Bloemfontein on 19 March
2005. The scene of the accident
was at Westdene where First Avenue intersects Nelson Mandela Drive.
[5] The summons was
issued on 3 August 2007. The plaintiff alleged that the accident was
caused by the sole negligence of the defendant’s
insured driver
in the driving of, a VW Passat with registration number BGD411FS,
then and there driven by a certain MS Pheko.
[6] In the plea, the
defendant admitted the particulars of the accident, the identities of
the drivers concerned and the descriptions
of the motor vehicles
involved. The defendant’s plea was filed on 18 October 2007.
[7] The defendant denied
that the accident was caused by the sole negligence of the insured
driver of the sedan as alleged or in
any other manner whatsoever. On
the contrary the defendant specifically pleaded that the collision
was caused by the sole negligence
of the plaintiff herself, N M
Templeton, in the driving of a motor cycle with registration number
CPH168FS.
[8] The court
a
quo
directed that the issues in dispute in respect of the quantum and
merits be separately adjudicated and that the costs relating
to such
a separation application be reserved for later adjudication. The
order was made on 11 December 2008 approximately nine
weeks before
the hearing.
[9] The hearing started
on 17 February 2009 and ended the next day. The court
a
quo
came to the conclusion that the sedan driver was 75% negligent and
that the scooter driver was 25%. Accordingly judgment was given
in
favour of the plaintiff with costs including the costs of the
separation application.
[10] The defendant was
aggrieved. On the 23
rd
February 2009 the defendant asked for reasons for the findings and
the order which resulted from them. On the 4
th
March 2009 the written judgment of Jordaan J was delivered.
Subsequently the defendant brought an application on 25 May 2009 for
leave to appeal against the finding of the court
a
quo
that the defendant was 75% liable for such damages as the plaintiff
might prove and 100% of the plaintiff’s cost until the
last day
of the trial. The defendant was granted leave to appeal on 29
September 2009.
[11] On 29 October 2009
the defendant filed the appeal record. Simultaneously the defendant
applied to the registrar to have a
date allocation for the hearing of
the appeal. These two procedural steps were 71 days belated –
see uniform court rules
49(6)(a) and 49(7)(a).
[12] The defendant filed
its condonation application on 30 October 2009. The plaintiff filed
her notice of intention to oppose
the condonation application on 5
November 2009. Two weeks later, on 19 November 2009, she filed her
opposing affidavit. On 7
December 2009 the defendant filed her
replying affidavit. The appeal was filed on 12 January 2010 for
hearing together with the
condonation application on Monday 17 May
2010. Having heard argument for and against both we reserved
judgment.
[13] I deal with the
condonation application first. Subrule section 6(a) of rule 49
provides:
“
6
(a)
Within sixty days after
delivery of a notice of appeal, an appellant shall make written
application to the registrar of the division
where the appeal is to
be heard for a date for the hearing of such appeal and shall at the
same time furnish him with his full
residential address and the name
and address of every other party to the appeal and if the appellant
fails to do so a respondent
may within ten days after the expiry of
the said period of sixty days, as in the case of the appellant, apply
for the set down
of the appeal or cross-appeal which he may have
noted. If no such application is made by either party the appeal and
cross-appeal
shall be deemed to have lapsed: Provided that a
respondent shall have the right to apply for an order for his wasted
costs.”
[14] Subrule section 7(a)
of rule 49 provides:
“
(7)
(a)
At the same time as the
application for a date for the hearing of an appeal in terms of
subrule (6)
(a)
of
this rule the appellant shall file with the registrar three copies of
the record on appeal and shall furnish two copies to the
respondent.
The registrar shall further be provided with a complete index and
copies of all papers, documents and exhibits in the
case, except
formal and immaterial documents: Provided that such omissions shall
be referred to in the said index. If the necessary
copies of the
record are not ready at that stage, the registrar may accept an
application for a date of hearing without the necessary
copies if-
(i) the application
is accompanied by a written agreement between the parties that the
copies of the record may
be handed in late; or
(ii)
failing such agreement, the appellant delivers an application
together with an affidavit in which the reasons
for his omission to
hand in the copies of the record in time are set out and in which is
indicated that an application for condonation
of the omission will be
made at the hearing of the appeal.
”
[15] The condonation of a
parties non-compliance with the court rules is not simply there for
the asking. It is not automatically
granted. The court has to
consider all the relevant factors in order to exercise the discretion
entrusted to it properly.
1
[16] In exercising its
discretion the court will take into account the following factors:
the degree of non-compliance; the explanation
given for it; the
prospects of success on appeal; the importance to the case; the
respondent’s interest in the finality of
the judgment; the
convenience of the court; and the avoidance of unnecessary delay in
the administration of justice.
[17] The purpose of civil
litigation is to bring about orderly settlement civil disputes. A
successful litigant is entitled to
final judgment. Delays by an
unsuccessful litigant in challenging an unfavourable judgment has an
adverse effect on the interest
of the successful party in the
finality of the judgment.
2
[18] The defendant
applies for the condonation of its lateness, firstly, in applying for
the allocation of a date for the hearing
of the appeal and secondly,
in lodging the appeal record in accordance with the rules. The two
procedural steps were both carried
on 29 October 2009. They were
thus 71 days outside the formal deadlines as laid down in the rules.
The appeal has therefore lapsed
in terms of rule 49 (6)(a). The
purpose of the defendant’s condonation application is to have
the appeal received and reinstated.
The defendant tenders the costs.
[19] Mr Cilliers
acknowledges that there has been a clear violation of the court rules
on the part of the defendant. Notwithstanding
such a concession, he
contended that the violation of the court rules was due to some
special circumstances which were prevailing
in the life of the
defendant’s attorney who candidly accepted full responsibility
for the non-compliance. He therefore submitted
that the defendant
had made out a proper case for the condonation of its non-compliance.
[20] On behalf of the
plaintiff Ms Murray contended that the defendant’s violation of
the court rules coupled with the negligent
actions of its attorney
had been such a serious degree of non-compliance that it could not be
condoned on the basis of the candid
and honest explanation given for
it.
[21] In its founding
affidavit the defendant stated that leave to appeal was granted on 18
May 2009; that it filed notice of appeal
on 25 May 2009; that it
requested for a transcript of the court record from Krino
Transcribers; that Ms Ross, its attorney and
deponent, received the
court record on 25 June 2009; that her work schedule was incredibly
hectic at the time since she was on
verge on making a new career
move; that she put the court record aside with the aim of speedily
perusing and working on it later
but never got to it in good time;
that she was working under tremendous pressure at the time updating
all her files; that on 22
September 2009 its responsible claim
handler enquired about the pending appeal from its attorney; that
only then did the attorney
realise that she had not given the file
the necessary attention; that she then immediately perused the court
record and discovered
with dismay, that the court record was
incomplete; that she received a complete transcript on 6 October
2009; that she was a novice
with limited experience in the legal
profession; that she consulted an advocate on the same day; that she
briefed an advocate on
8 October 2009; that she resigned from the
service of Mpobole & Ismael on 15 October 2009 and that she took
up new employment
with CRC Church Group two weeks later.
[22] It is also the
defendant’s explanation that there was a loss of contact
between its attorney and its advocate for almost
three weeks after 8
October 2009. The advocate’s e-mails to the attorney were not
answered. The two re-connected on 28
October 2009. The next day the
court record was filed together with an application for the appeal
date. Both steps should have
been taken no later than 18 August when
the 60 day period expired since was filed notice of appeal.
[23] In the opposing
affidavit Mr Hart, the plaintiff’s attorney and deponent,
answered that the defendant’s attorney
Ms Ross, took no further
steps to prosecute the appeal between 25 June 2009 and 22 September
2009. The plaintiff countered that
the defendant had given an
inadequate explanation; that the appeal had no reasonable prospects
of success and that the unreasonable
delay has severely prejudiced
the plaintiff. She prayed through her attorney that the condonation
application be refused.
[24] In its replying
affidavit the defendant responded through its attorney that she
devoted a whole lot more time to her plans
in respect of her pending
new career move than to the defendant’s appeal. She was
working on 400 files in order to hand
them over to a colleague. She
used a diary system but did not diarise the particular file. She
kept on thinking that she had
time and that she would quickly get to
it and start working on it but she never got there. Between 25 June
2009 and 22 September
2009 the file was on top of a cabinet in her
office. From 8 October 2009 to 28 October 2009 she was seldom in her
office at Mpobole
& Ismail. She did not do regular check of her
e-mails at the time. She expected to be contacted on her cellphone
if she was
urgently needed. She was of the opinion that she gave an
adequate explanation for the delay; that the defendant had a
reasonable
prospect of success and that the plaintiff was not
prejudiced by the delay.
[25] As regards
prejudice, it must be borne in mind that the issues of quantum were
separated from those of the merits. The merits
were determined in
favour of the plaintiff on 18 February 2009. The quantum issues
still had to be determined. It seemed unlikely
that the matter would
have been enrolled within 71 days for that purpose even if the
defendant did not appeal. Moreover, there
is no averment by or on
behalf of the plaintiff that between 25 June 2009 and 22 September
2009, she ever complained to the defendant
about the delay. The
defendant was never called upon to expedite the prosecution of its
appeal because the delay was prejudicing
the plaintiff. In my view
the interim payment which the defendant made, in a way mitigated the
prejudice caused by the delay.
However, I acknowledge that any
non-compliance with the court rules entails some prejudice even if
the affected party does not
complain.
[26] As regards the
prospects of the appeal, it would seem that the appeal does have some
good prospects of success. This is a
very important factor in
determining whether to refuse or grant a condonation application. In
this case, this factor strongly
favours the grant of the application.
However its significance may be eroded by some other factors such as
the gravity of non-compliance
or the inadequacy of the explanation.
[27] As regards the
importance of the case, it will be readily appreciated that a case of
over three quarters of a million rand
is a huge and important case to
both parties. Perhaps it is the first and probably the last case of
this sort the plaintiff in
which she will ever be involved. However,
for the defendant the situation is completely different. The
defendant is involved,
has been involved and will still be involved
in many similar cases. Herein is the importance of the case. It is
therefore important,
not only for the defendant alone but the general
public also, to have such cases correctly decided in accordance with
sound principles.
Unless the defendant takes doubtful judgments on
appeal, it will be failing in its duty to dispense public funds
responsibly and
appropriately.
[28] Certainly the
plaintiff has a vested interest in the finality of the judgment. A
successful party is entitled to expect and
to demand speedy delivery
of the fruit of a judgment. Where an unsuccessful party takes a
judgment on appeal, such an appeal must
be prosecuted without undue
delays. The respondent, in other words the beneficiary of the
judgment, also has an interest in the
fairness and justness of the
judgment and not only its finality.
[29] The rule required
the defendant to have taken the necessary steps within 60 days of its
notice of appeal. The defendant exceeded
the prescribed time
deadline by 71 days. Any non-compliance with the court rules causes
inconvenience to the court itself. We
are now dealing with this
sideline application instead of itself. This exercise in itself is a
great inconvenience, precisely
caused by the failure to obey the
court rules.
[30] The defendant’s
notice of appeal was filed on 12 May 2009. Nothing seriously
constructive was done, other than to seek
and obtain a court record,
during the sixty-day period. Such a period expired on 18 August
2009. By operation of the law the
appeal automatically lapsed. The
filing of the record and the request for an appeal date were done on
29 October 2009. Both steps
were taken 71 days out of time. The
delay was rather very long. The bad situation becomes even worse
when the initial 60 day
period is also taken into account. Such a
degree of neglect is telling against the defendant.
[31] It is very clear
that the long delay was occasioned by the defendant’s attorney.
She was a novice with no apparent experience
in civil litigation in
general and appeal procedure in particular. It seemed that she was
overwhelmed by lack of personal know-how
and in-house support system.
Her pending career move made matters worse. She almost exclusively
devoted her energy, within the
little time she still had, in pursuit
of her own interest or those of her new master, at the expense of the
interests of her clients,
in particular the defendant.
[32] It is indeed so that
a party cannot always avoid the adverse consequences of the actions
of his legal representatives. Ms
Murray argued that the actions of
the defendant’s attorney boiled down to acts of gross
negligence and that the defendants
itself was also to blame for its
passiveness during the period of the attorney’s inactivity. I
am not certain if there was
much the defendant could have done to
ensure that the appeal was properly prosecuted in accordance with the
rules. There is no
indication that the responsible claim handler was
familiar with the appeal prosecution of civil appeals to have guided
the defendant’s
attorney or that he was aware of the attorney’s
inadequacies or that he was aware of the fact that her personal
affairs were
hindering her from prosecuting the appeal.
[33] We do know that on 8
October 2009 she consulted Ms Diane Birch and a certain advocate.
The advocate, and probably Ms Birch
as well, advised her on the
procedures. Notwithstanding such advice(s) she failed to lodge the
court record at once. The advocate
had to remind her about it almost
three weeks later. The point is: if any advice by an advocate could
not make her to immediately
take constructive steps to prosecute the
appeal, what could telephone enquiries from a client have achieved?
[34] In these
circumstances, dictates of justice seem to suggest that it will be
unfair and unjust to penalise the defendant on
account of the neglect
or remissness of its attorney. In my view the defendant has given a
reasonably adequate and satisfactory
explanation for the
non-compliance.
[35] Having considered
all the relevant factors, the submissions made by the counsel and the
peculiar circumstances of the case,
I would grant the condonation
application. The opposition was justified. The defendant has
tendered to pay the plaintiff’s
costs thereof.
[36] Accordingly I make
the following order:
36.1 The appellant’s
late filing of the appeal record is condoned;
36.2 The appellant’s
late application for an appeal date is also condoned;
36.3 The appellant’s
appeal which automatically lapsed in terms of rule 49(6)(a) is hereby
reinstated;
36.4 The appellant is
hereby directed to pay the costs of this condonation application.
[37] Now the merits of
the appeal. The undisputed facts are that early in the morning, on
Saturday 19 March 2005 the plaintiff
was on her way home at Willows
from Cape Town Fish Market at Preller Square. She worked at that
restaurant as a waitress; she
was riding a scooter in a southerly
direction on the inner lane in First Avenue shortly before the
accident; at ±02:35 she
was on the verge of crossing Nelson
Mandela Drive. The insured driver was driving a sedan in a westerly
direction on the middel
lane in Nelson Mandela Drive, at the same
time he was on the verge of crossing First Avenue, the scooter and
the sedan collided
inside the intersection.
[38] The real issue in
the case was in whose favour was the green traffic light at the
critical moment of the collision. Put differently,
the question was
who had the right of way to proceed and who was obliged to stop
before entering the intersection?
[39] The plaintiff’s
version was narrated by the plaintiff herself. She did not call any
witness. Her version was that the
traffic lights were green in her
favour when she ventured into the intersection. She alleged that the
sedan driver disobeyed the
traffic lights by entering the
intersection when the traffic lights were red against him.
[40] The defendant’s
version was narrated by three witnesses, namely: Mr N E Leseo, Mr J
du Plessis and Ins D G Raath. The
sedan driver, Mr Pheko, did not
testify. He died before the trial. Mr Leseo testified that he was a
passenger in the sedan at
the time of the collision. His version was
that the traffic lights were green in Nelson Mandela Drive when the
sedan entered the
intersection to cross First Avenue.
[41] Mr du Plessis
testimony was that he was driving westwards in Nelson Mandela Drive.
He was following a certain vehicle in which
friends of his female
companion were travelling. The insured sedan was also ahead of him.
The traffic lights in Nelson Mandela
Drive were initially red as they
were approaching First Avenue but turned suddenly green. Then the
insured driver vehicle began
moving forward, in other words, to cross
First Avenue. He then heard a hard bang.
[42] Inspector Raath’s
testimony was that he arrived on the scene after the collision. He
saw the sedan as well as the scooter
involved. His version was that
the final rest position of the sedan was 30m from the area of impact
inside the intersection.
[43] The version of the
plaintiff can be criticised in many respects. Her version that
before the collision she saw a speeding
motor vehicle in Nelson
Mandela Drive going over a red traffic light and her testimony that
she concentrated on it for sometime
after it had crossed her path of
travel, was rather surprising. She knew that Nelson Mandela Drive
was a one-way street. There
was not traffic from her right-hand-side
to worry about. Any possible danger for her by a similarly reckless
driver, if any there
was, would have emerged from her left-hand-side
in Nelson Mandela Drive. However, she hardly looked in that
direction. What is
even more amazing, is that she hardly reduced her
speed just to make doubly sure there was no other speeding motor
vehicle in Nelson
Mandela Drive to endanger her safety.
[44] The alleged reckless
behaviour of the unidentified motorist would have served as a warning
to a reasonable person in those
circumstances to be careful before
venturing to cross Nelson Mandela Drive. In such circumstances a
reasonable careful driver
of a scooter would have immediately reduced
speed and would have made doubly sure it was safe to cross. The
plaintiff knew too
well that the particular intersection was
notoriously prone to accident but she did not approach it with any
caution as one would
have expected from someone who knew as much as
she did. Moreover she knew that intoxicated drivers, from a pub up
the street,
often go over the red traffic light at the particular
point.
[45] Initially she was
adamant that the sedan crashed into her scooter and that it was not
the other way round. During intense
cross-examination she was
eventually made to concede that it was in fact her scooter which had
crashed into the sedan. She testified
she did not see the sedan
which collided with her scooter. She also testified that she made a
mistake by entering an intersection,
at night for that matter,
without carefully ascertaining that it was safe for her to do so.
[46] When she was asked
whether she had slammed the brakes her answer was: “I must
have, I don’t know.” Since
she did not see the sedan at
all, one would have expected a straight forward negative answer to
that question. It seems illogical
to say she must have applied the
brakes when she saw nothing to make her to take any evasive action.
It can be deduced from all
these that the plaintiff was not keeping a
proper look-out at the crucial moment when she attempt to cross
Nelson Mandela Drive.
If we accept this, and I think we should, then
her evidence that the traffic lights were green in favour of First
Avenue and red
against Nelson Mandela Drive loses its weight. In my
view that aspect of her evidence was very unreliable.
[47] Mr Leseo’s
version cannot be convincingly criticised. He was an impressive
witness with virtually no motive to unfairly
build or destroy the
case of any of the parties. His version that the traffic lights were
green in Nelson Mandela Drive when the
sedan enter the intersection
was substantively credible and reliable. Implicit in his version was
the legitimate inference that
the traffic lights must have been red
in First Avenue when the scooter entered the intersection. This in
turn means that the sedan
driver was entitled to proceed across First
Avenue and that the scooter driver was supposed to have stop before
endeavouring to
cross Nelson Mandela Drive.
[48] The gentleman was an
objective witness. According to him the sedan entered the
intersection at a high speed. He added that
had the sedan driver
driven at a slower speed he could have noticed the lady on the
scooter. The point he was trying to make was
that in spite of the
scooter driver’s going carelessly over the red light, the
collision could still have been avoided had
the sedan been travelling
at a safe and permissible speed in the circumstances.
[49] The evidence of Ms
Raath that he observed brake marks made by the sedan suggested that
the sedan driver probably saw the scooter,
albeit too late, and that
he took some evasive action. The length of such brake marks are
objectively give credence to Mr Leseo’s
evidence that the sedan
was speeding. Moreover it tends to indicate that the sedan driver
was more alert than the scooter driver.
It is probable that a slower
speed might have delayed the motion of the sedan by a fraction of a
second which could have enabled
the sedan to narrowly miss the
scooter.
[50] From the aforegoing
analysis, it is obvious that both drivers were to blame for the
accident. However, the court
a
quo
erred in finding that the negligent sedan driver was the primary
cause of the accident. Such a finding was not borne out by the
evidence of a credible and reliable witness and the evidence as a
whole. The issue had to be decided mainly on Mr Leseo’s
version. No sound reason existed to disbelieve him. As I see it,
the accident was chiefly occasioned by the negligence of the
plaintiff. She disobeyed a red traffic light and carelessly tried to
cross a major street in the city without keeping a proper
lookout.
In the process her scooter crashed into the sedan which was entitled
to proceed because the traffic light was green in
its favour.
[51] In the circumstances
the apportion of 75% - 25% in favour of the plaintiff is a finding
which I, on appeal, cannot uphold.
In view of the misdirection we
are entitled to interfere with the apportion of negligence or fault.
In my view an apportionment
of 80-20 in favour of the sedan driver
appears to be fair, just and equitable.
[52] Accordingly, I make
the following order:
52.1 That appeal
succeeds;
52.2 That the order of
the court
a
quo
is
set aside and substituted with the order as set out below;
52.3 That the plaintiff
was 80% negligent in causing the collision and thus 80% liable for
the damages she has suffered;
52.4 That the
contributory negligence of the insured driver in causing the
collision was 20% and thus 20% liable for the damages
suffered by the
plaintiff;
52.5 That the defendant
is therefore liable for 20% of any damages the plaintiff may prove to
have suffered;
52.6 That the defendant
pays the costs the action including the costs of the application for
separation of issues;
52.7 That the plaintiff
pays the costs of the appeal.
_______________
M. H. RAMPAI, J
I concur.
________________________
C. H. G. VAN DER
MERWE, J
I concur.
________________
J. B. MTHEMBU, AJ
On behalf of the
appellant: Adv. H. J. Cilliers
Instructed by:
Mpobole &
Ismail
BLOEMFONTEIN
On behalf of the
respondent: Adv. H. Murray
Instructed by:
Lovius-Block
BLOEMFONTEIN
1
United
Plant Hire (Pty) Ltd v Hills & Others
1976 (1) SA 717
(AD) at 720 e – h and 722 c – d.
2
United
Plant Hire v Hills,
supra,
op cit.