Road Accident Fund v Blignaut, Blignaut v Road Accident Fund; Road Accident Fund v Motale (A280/2003 , A281/2003 , A282/2003) [2004] ZAFSHC 78 (29 July 2004)

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[2004] ZAFSHC 78
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Road Accident Fund v Blignaut, Blignaut v Road Accident Fund; Road Accident Fund v Motale (A280/2003 , A281/2003 , A282/2003) [2004] ZAFSHC 78 (29 July 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeals
No,: A280.2003
A281/2003
A282/2003
In
the appeals between:
ROAD
ACCIDENT FUND
Appellant
and
A.J.C.
BLIGNAUT
Respondent
ROAD
ACCIDENT FUND
Appellant
and
J.
BLIGNAUT
Respondent
ROAD
ACCIDENT FUND
Appellant
and
M.S.
MOTALE
Respondent
___________________________________________________________
CORAM:
MALHERBE JP
et
VAN DER MERWE J
___________________________________________________________
HEARD
ON:
26 JULY 2004
___________________________________________________________
JUDGMENT
BY:
MALHERBE JP
___________________________________________________________
DELIVERED
ON:
29 JULY 2004
___________________________________________________________
These 3 appeals were heard together at the request of
appellants’ attorneys. They were argued together in the court
a
quo
and the same firm of attorneys represents
the 3 respondents.
Each of the respondents instructed a firm of attorneys
from Vereeniging, Messrs. Steyn Lyell & Marais, to institute
action against
appellant in the Magistrate’s Court, Sasolburg for
the recovery of damages arising from injuries sustained in two
separate motor
vehicle accidents. In each case default judgment was
granted against appellant. In each case appellant’s application
for rescission
of the default judgment was late. In each case
appellant’s application for condonation of its failure to apply
timeously for
rescission of the default judgment was dismissed with
costs. These appeals are against the Magistrate’s order refusing
condonation.
The applications in the court
a
quo
contain virtually identical allegations
regarding the reasons for the failure to comply with the Rules of
court. The parties agreed
to argue these appeals with reference to
the facts in the MOTALE appeal. In what follows I also refer to
those facts.
Summons was served on appellant on 3 October 2001.
Default judgment was granted on 16 November 2001. Appellant
received notice
of this judgment on 11 December 2001. In terms of
Rule 49(1) of the Magistrate’s Court Rules appellant could apply
for rescission
of that judgment within 20 days of obtaining knowledge
thereof. This period
expired on 14 January 2002. Although the application
was served on the respondent’s attorneys on 14 January 2002 it was
only filed
with the Clerk of the Court on 17 January 2002. It was,
therefore, not “served and
filed” within the prescribed period as required by
Rule 49(1). In any event, this application was withdrawn before it
was to be
heard on 13 February 2002. On 19 March 2002 appellant
served and filed an application for
“condoning the late filing of the Applicant’s application in
terms of Rule 49,”
as well as a separate application for rescission of the
default judgment. This latter application repeated almost
verbatim
the allegations contained in the first
application for rescission.
Before this Court can consider the merits of the appeal,
it has to consider an application to reinstate the appeal
(application number
2607/2003) because it had lapsed on account of
appellant’s failure to prosecute it in accordance with Uniform Rule
of Court 50(1).
(In his Heads of Argument counsel for appellant
mistakenly refers to Rule 49(6)(b). Rule 49 deals with appeals
from
the Supreme Court whereas Rule 50 deals with appeals
to
the Supreme Court from Magistrates’ Courts. This is such an
appeal). Rule 50 does not contain a provision similar to Rule 49(6)
relating to reinstatement of an appeal from the Magistrate’s Court.
In
my view such an application can be made in terms of Uniform Rule of
Court 27 which provides for extension of any time prescribed
by the
Rules “on good cause shown”.
Rule 50(4) requires an appellant to apply for the
assignment of a date for the hearing of an appeal within 40 days of
noting the appeal.
The appeal was noted on 13 December 2002.
(Appellant mistakenly refers to 6 December 2002 being the date of the
notice. It was
only served on respondent’s attorneys on 13
December 2002 and filed with the Clerk of the Court on the same
date). The 40 day
period lapsed on 13 February 2003. Appellant
applied for a trial date only on 28 July 2003, i.e. more than 5
months late.
Appellant
relies on the affidavit of his attorney, Mr Malatji, in support of
the application to reinstate the appeal. I quote the
relevant
paragraphs from this affidavit which was delivered with the Notice of
Motion on 28 July 2003:
“ 2.
The Appellant noted an appeal in this matter per notice dated 6
December 2002. The appeal was required to be prosecuted on or before
6 March 2003. The Appellant has not prosecuted the appeal within the
aforementioned period and requests this Honourable Court to
revive
the appeal and the date of hearing thereof.
3.
The application for Rescission of Judgment by the Appellant was
eventually argued on 15 October 2002 and our correspondent attorneys
in Sasolburg forwarded the Magistrate’s reasons to us on 14
November 2002. I prepared recommendations to the Appellant
recommending
that the decision of the Court
a quo
should be
taken on appeal and this recommendation was provided to the Appellant
on 6 December 2002.
4.
The Appellant was engaged in a restructuring process. The process
entailed separating the functions of the Appellant insofar as
defended and undefended matters are concerned. The Applicant was in
the process of establishing litigation departments which would
be
responsible for dealing with defended matters and liaising with
applicant’s attorneys whereas the claims department would then
be
charged with the responsibility of investigating and settling claims
which were not defended.
5.
The restructuring process involved the transfer of files from claims
departments to litigation departments in all of the respondent’s
various branches across the country. As a safety measure, I filed a
notice of intention to appeal in this matter pending receipt
of
formal instructions from the applicant to prosecute an appeal on the
aforementioned date of 6 December 2002. However, the applicant
was
unable to locate their file timeously to provide me with formal
instructions to proceed with the appeal and to provide me with
a
power of attorney in this regard.
6.
I eventually impressed upon the Appellant’s to consider my
recommendation and to locate their file and on 18 February 2003 I
received
formal instructions to prosecute the appeal. I immediately
proceeded to instruct Messrs Taxco Transcribers in Bloemfontein to
attend
to the preparation of the appeal record. A copy of my
instructing letter is attached hereto marked Annexure “A”. I
also attach
in this regard a copy of a fax received from Taxco
Transcription Services marked Annexure “B” hereto.
7.
I had received an undertaking from the transcribers that the record
would be ready prior to the date on which we would have needed
to
prosecute the appeal. However, despite the aforementioned
undertaking and numerous telephone calls, I did not receive the
record
timeously. I eventually received the record as prepared by
them on 8 May 2003. On receipt of the aforementioned record, I
realised
that they had made a grave error in that they had retyped
all the documents (including affidavits filed in the court
a quo
)
that were filed in the court file instead of simply preparing the
record and typing only the judgments as given by the court
a quo
.
8.
I requested them to forward the files back to me so that I could make
alternative arrangements for preparation of the record. I
then
proceeded to make alternative arrangements for the record to be
prepared by Sneller Transcriptions (Pty) Ltd and they prepared
the
relevant record on 3 July 2003 after it had been forwarded to our
correspondents on 29 May 2003.
9 .
This matter has been to a large extent a comedy of errors. It is my
humble submission that the Appellant should not be unduly penalised
by the court as a result of the comedy of errors that occurred in
regard to the matter. The Appellant is desirous of having the
appeal
determined by this court. The issues raised in regard to application
for rescission of judgment are quite substantial and
the Appellant
seeks this court’s guidance in future dealings relating to similar
matters and thus judgment in regard to this matter
and the two other
related matters will be of great substance and assistance to the
Appellant’s future functioning.
10 .
I humbly request the above Honourable Court to grant the order as
prayed for.”
I have already mentioned that Mr Malatji obviously does
not know the relevant Rule or did not read it properly. When he
received instructions
to prosecute the appeal on 18 February 2003,
the period of 40 days after noting the appeal had already lapsed.
According to his
letter to Taxco dated 18 February 2003 he was under
the impression that it would be in order to receive the record
shortly before
6 March 2003. There is nothing to substantiate his
allegation that the transcribers had undertaken to have the record
ready by a
certain date. (Paragraph 7 of the affidavit).
The allegations in paragraphs 4 and 5 relating to
appellant’s restructuring process are clearly hearsay. Mr Malatji
is an attorney
in private practice and must have obtained his
knowledge about appellant’s so-called restructuring process from
officials in appellant’s
employ. In this regard appellant’s
counsel submitted that respondent did not deliver an answering
affidavit alerting appellant
that the hearsay argument would be put
forward, so that appellant could tender first hand evidence in reply.
This submission is
entirely unconvincing. An applicant who bases an
application for condonation on pure hearsay, does so at his own
peril. Why must
his opponent alert him that his evidence is hearsay?
The use of hearsay by Mr Malatji is only further evidence of the
incompetence
with which he has handled these matters. In any event,
he does not say when the restructuring process started or how long it
lasted.
It seems strange that litigation departments were being
created by appellant, apparently for the first time, incidentally
during
the period November 2002 to February 2003. What happened to
defended matters during the previous decades since appellant came
into
existence? Moreover, this matter was undefended because
appellant had not entered appearance to defend. There would,
therefore,
on Mr Malatji’s version, have been no reason to
transfer this file from the claims department, where Mr Miller had
been dealing
with it throughout, to any other department. Most
important, Mr Malatji does not explain why or how the file presumably
got lost.
He does not explain why appellant was unable to locate the
file timeously. He does not say what happened to the file or why it
was presumably mislaid. It is also strange that an attorney delivers
a notice of intention to appeal without instructions from his
client.
Be that as it may, what Mr Malatji says in his affidavit shows
clearly that this is not so much a comedy of errors as that
he does
not know the applicable Rules of court and that appellant was grossly
negligent in handling this matter.
Apart from the above considerations, on Mr Malatji’s
own version appellant had to prosecute the appeal on or before 6
March 2003.
There is no allegation that he approached respondent’s
attorneys to agree to late prosecution. Once 6 March 2003 had come
and
gone appellant should have sought condonation without delay.
There is nothing that prevented it from approaching the Court for an
extension of time within which to prosecute the appeal according to
the Rules and explaining under oath, corroborated by the various
transcribers, the difficulties with regard to the record. In this
regard it is difficult to understand what Mr Malatji intended
to
convey in paragraph 7 of his affidavit about the so-called “grave
error”. The relevant part of his letter to Messrs Taxco
Transcribers dated 18 February 2003 reads as follows:
“
We
confirm having requested you to compile an appeal
record for us on the following civil cases, which were heard in the
magistrate court for the district of Sasolburg:
• M.S. MOTALE / ROAD ACCIDENT FUND – 4308/01
• J
BLIGNAUT / ROAD ACCIDENT FUND – 4571/01
• AJC
BLIGNAUT / ROAD ACCIDENT FUND – 4573/01
Kindly note that all we require is the following:
•
All the documents used in the Application in an appeal record format;
• The judgement of the court of the 24
th
April 2002;
• Notices of Appeal.”
I fail to understand that the transcriber made a “grave
error” by re-typing all the documents, including affidavits filed
in the
court
a quo
.
How else is an appeal record “compiled in an appeal record format”?
Do “all the documents used in the application” not
include
affidavits?
My conclusion is that appellant’s explanation for its
failure to prosecute the appeal timeously is entirely unconvincing
and unsatisfactory.
The explanation in each of the appeals is exactly
the same. It follows that not one of the appeals can be re-instated.
Respondent’s counsel submitted that the Court should
order appellant to pay the costs of appeal on the attorney and client
scale
as a mark of its disapproval of the manner in which these
matters have been handled by appellant. Although incompetence is
plainly
evident, I find no evidence of
mala
fides
and decline to make a punitive costs
order.
The
following order is issued in each of the 3 appeals:
1. The
appeal is removed from the Roll.
2. Appellant
is ordered to pay respondent’s costs.
___________________
J.P. MALHERBE JP
I CONCUR
__________________________
C.H.G. VAN DER MERWE J
On behalf of Appellant:
A.G.
South
Instructed by
Honey
& Partners
Bloemfontein
On behalf of Respondent:
D.A.
Louw
Instructed by
Rossouws
Bloemfontein
/scd