Dumbu v Golden Arrow Bus Services (7673/04) [2007] ZAWCHC 64 (6 November 2007)

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[2007] ZAWCHC 64
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Dumbu v Golden Arrow Bus Services (7673/04) [2007] ZAWCHC 64 (6 November 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 7673/04
In
the matter between:
NELISWA
PAMELA DUMBU
Plaintiff
and
GOLDEN ARROW
BUS SERVICES Defendant
JUDGEMENT
DELIVERED ON THIS 6
TH
DAY OF NOVEMBER 2007
NDITA,
J:
[1] On
26 December 2001, the plaintiff was injured in a motor vehicle
accident when the driver of the Golden Arrow bus, in which she
was a
paying passenger, allegedly steered such vehicle into a pothole,
thereby losing control and causing the passengers, inter alia
the
plaintiff, to be flung from their seats and roll onto the floor.
Arising from the said collision, the plaintiff instituted an
action
for damages. The matter is due to proceed on trial on 26 November
2007.
[2] In
terms of Rule 33 (4) the defendant seeks separation of the issues of
liability and quantum of damages. The plaintiff opposes
the
application.
APPLICABLE
LEGAL PRINCIPLES
[3] Rule
33 (4) provides as follows:
“
If,
in any pending action, it appears to the court
mero
motu
that there is a question of law or fact which may be conveniently
decided either before any evidence is led or separately from any
other question, the court may make an order directing the disposal of
such question in such manner as it may deem fit and may order
that
all further proceedings be stayed until such question has been
disposed of, and the court shall on the application of any such
party, make such order unless it appears that the questions cannot be
conveniently decided separately.”
Miller, J in
Minister of
Agriculture v Tongaat Group Ltd
1976 (2) SA 357
summarises the
meaning of convenience as follows:
“
The word
‘convenient’ in the context of Rule 33 (4) is not used, I think,
in the narrow sense in which it sometimes used to convey
the notion
of facility or ease or expedience. It appears to be used to convey
also the notion of appropriateness; the procedure would
be convenient
if, in all circumstances, it appeared fitting and fair to the parties
concerned…. It must be borne in mind that the
grant of the
application under the Rule, although it might result in the saving of
many days of evidence in Court, might nevertheless
cause a
considerable delay in the reaching of a final decision in the case
because of lengthy, barren interregnum between the conclusion
of the
first hearing at which special questions are canvassed and the
commencement of the trial proper… In such a case, the advantages,
in the form of curtailment of time, actually spent in Court, which
would result from the separate decision of the special questions
might be outweighed by the disadvantages of delaying the ultimate
decision of the case; it might cause prejudice to the party who
ultimately obtains a judgement in his favour and who might suffer
considerable pecuniary loss through the circumstance that he could
only receive payment of what was found to be due to him very much
later than he would have received it had the trial been allowed
to
proceed in the ordinary way.”
[5] Flowing from this dictum, it is clear that the
function of the Court in an application under this Rule is to assess
to the best
of its abilities the nature and extent of the advantages
and disadvantages that would flow from the granting of such an order.
One
of the factors to be taken into account by the Court, when
deciding whether to order separation, is the possibility of grave
injustice
to the opposing party. However, the plaintiff must show
that the balance of convenience favours him. (See
Braaf v Fedgen
Insurance
LTD
1995 (3) SA 938
at 940.)
FACTUAL
BACKGROUND
[6] When the plaintiff was involved
in the collision on 26 December 2001, she was 53 years old and
working as a domestic assistant.
Summons in the current action were
issued on 13 September 2004. It is not clear from the papers filed of
record why there has been
a considerable delay in bringing the matter
to trial.
[7] The
grounds upon which the defendant seeks the separation of the merits
and the quantum are as follows:
The
merits are in dispute and the defendant is confident of success on
merits.
The
separation will be cost effective because it will not only avoid an
opposed trial on both the quantum and the merits but it
is also
apparent that the plaintiff’s financial situation is extremely
limited as a result of which the defendant will not be
in a position
to satisfy an adverse costs order.
The
separation of the determination of the quantum, and merits would
facilitate the convenient and expeditious disposal of the

litigation.
[8] From
the plaintiff’s point of view, the application should be refused
because the balance of convenience favours same on the
following
grounds:
It
is clear from the orthopaedic surgeon’s report that the plaintiff
has been unable to work since the collision and accordingly
has been
without an income for a period of almost six years.
Even
if the plaintiff is successful at the hearing of the merits, the
determination of the quantum of her claim, if separation is
granted,
will in probability be delayed until the end of 2009 because
currently, according to the Registrar, no Fourth Division
dates are
available before August 2009.
Should
the defendant appeal after hearing of the merits, which may done
prior to the hearing on quantum, the plaintiff’s claim
would still
further delayed.
APPLICATION
OF THE LAW TO THE FACTS
[9] In
this matter, it is clear that there has been a lengthy delay between
the date upon which the collision occurred and the hearing
of this
application. Although no reasons have been advanced for the delay, it
is clear that the separation of the issues will keep
the plaintiff
out of her entitlement, (assuming that the plaintiff’s claim on the
merits will be successful), for a considerable
long time. This is
unfair to both parties. Seeing that convenience, does not only
concern expediency, efficacy and desirability,
but also fairness,
justice and reasonableness, I am of the view that the balance of
convenience favours the plaintiff. (See
ABSA
Bank v Botha
1997 (3) SA 510.)
Furthermore, the interest of expedition and
finality of litigation are better served by the disposal of the
matter in one hearing.
(See
Braaf
v Fedgen
supra at 941.)
[10] In
my view, the balance of convenience in this matter favours the
plaintiff. Accordingly, the application for a separation of
the
issues is dismissed. No order is made as to costs.
NDITA, J
7