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2024
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[2024] ZAMPMBHC 76
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Noortman v Road Accident Fund (A40/2023) [2024] ZAMPMBHC 76 (28 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
APPEAL
CASE NO:
A40/2023
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES /
NO
(3)
REVISED:
YES /
NO
28
October 2024
In the matter between: -
KARMANN
NOORTMAN
Appellant
VS
ROAD
ACCIDENT FUND
Respondent
Heard on: 23
August 2024
Delivered:
28
October
2024. This judgment was handed
down electronically by circulation to the parties' representatives by
email. The date for hand-down
is deemed to be 28 October 2024.
JUDGMENT
Coram:
Mazibuko AJ (Langa J and Vukeya J concurring)
INTRODUCTION
[1]
The
litigation culminating in this appeal was launched in the court
a
quo
by the appellant, Mr Karmann Noortman,
a
tow truck driver
who
sought an order to rectify his identification number reflected on the
Road Accident Fund (“RAF”) link system; alternatively,
replacing the RAF link to reflect his identity number instead of his
brother’s, (“
Johannes
Gerhardus Noortmann”
).
The court
a
quo
sitting in an unopposed motion roll, refused the application.
Aggrieved
by the court
a
quo
’s
decision, the appellant appealed the order and judgment.
FACTUAL
BACKGROUND
[2] According to
the appellant, on 20 February 2017, he was involved in a motor
vehicle accident whilst attending to a recovery
of a motor vehicle.
He got injured and was taken for medical attention. On 31 July 2018,
he lodged a personal injury claim with
RAF.
[3] The lodgment
documentation contained the particulars of the appellant but his
brother’s identity number. It was
alleged that the appellant’s
erstwhile attorneys completed the lodgment documents before his
current attorneys were instructed.
On 23 August 2018, RAF sent out
correspondence of non-compliance wherein they stated the claimant as
Johannes Gerhardus Noortmann, Reference Number 560/12700824/31/0,
Link Number 4456301.
The details were those of the appellant’s
brother, not the appellant’s. They also stated that the
claimant had previously
lodged three claims and he had incorrectly
stated to the experts, one of whom was Dr Mncina, that he had no past
medical history.
[4]
RAF has maintained its position despite the correspondence, including
a letter of demand explaining the appellant’s
allegations that
he was the one involved in a car collision on the date in question,
not his brother. To this end, the appellant
attached the
correspondence showing his request to RAF for the details alteration.
The appellant proceeded to lodge an
application to rectify his details, and RAF did not oppose it. This
appeal is not opposed by
RAF, there is also no cross-appeal.
THE DECISION OF THE
COURT
A QUO
[5]
What was before the court
a quo
was an unopposed application to rectify identity details entered into
the RAF digital system, which, according to the appellant,
made it
difficult for his RAF claim to be processed. The question was whether
the applicant had made out a case for the rectification
of his
identity details.
[6] The court
a
quo
refused the application on the basis that misrepresentations
were made to RAF. It was an attempt by the appellant to take over his
brother’s claim through a different persona. The appellant had
no
locus standi
to have his brother’s details on the RAF
link system altered, nor did the attorney, Mr W.P. Meintjies (“Mr
Meintjies”),
who deposed to the founding affidavit as he had
the mandate by the appellant’s brother, not the appellant. It
viewed the
application or the facts leading to it as planned fraud,
warranting an investigation by the Director of Public Prosecutions,
South
African Legal Practice Council
(“
LPC”
)
and the South African Police Services, respectively.
[7] At the hearing,
the court
a quo
directed that it required no address or
explanation of matters as it had read the papers. Mr Meintjies was in
appearance.
ISSUE
[8] The issue
before this Court is whether the court
a quo
was correct to
refuse the rectification application, especially given that the
appellant was required to establish a
prima facie
case.
Further, were the findings justifiable?
LEGAL
PRINCIPLES
[9]
It
is a well-established principle that an appeal Court may interfere
with the exercise of discretion in the true sense by a court
of the
first instance only if it can be demonstrated that the latter court
exercised its discretion capriciously or on a wrong
principle or has
not brought an unbiased judgment to bear on the question under
consideration, or has not acted for substantial
reasons.
[1]
[10]
Section 4(1) of the RAF Act provides:
‘
The
powers and functions of the Fund shall include-
(a)…
(b)
the investigation and settling, subject to this Act, of claims
arising from loss or damage caused by the driving of a motor
vehicle
whether or not the identity of the owner or the driver thereof, or
the identity of both the owner and the driver thereof,
has been
established;
(
c)
the management and utilisation of the money of the Fund for purposes
connected with or resulting from the exercise of its powers
or the
performance of its duties.
In
terms of s 15(1)(a) the RAF may institute and defend legal
proceedings. Section 15(1)(b) provides that the RAF may ‘commence,
conduct, defend or abandon legal proceedings in connection with
claims investigated and settled by it’.
[11]
‘[Courts] do not, or should not, sally forth each day looking
for wrongs to right. We wait for cases to come to
us, and when they
do we normally decide only questions presented by the parties.
Counsel almost always know a great deal more about
their cases than
we do.
[2]
[12]
Where the misappropriation of public funds is properly raised before
a court, it must, of course, deal with it decisively
and without
fear, favour or prejudice. But a court has no general duty or power
to exercise oversight over the expenditure of public
funds. This is
so for three main reasons. The first is the constitutional principle
of separation of powers. The second is that
the exercise of such a
duty or power would infringe the constitutional rights of ordinary
citizens to equality and to a fair public
hearing. The third is the
principle that the law constrains a court to decide only the issues
that the parties have raised for
decision.
[3]
DISCUSSION
[13] In summation,
the basis of the appeal is that the court
a quo
misdirected
itself when:
13.1. It
found the rectification of identity details was a misrepresentation
to RAF, which could not be amended;
13.2. It
decided the matter on evidence not placed before it;
13.3. During
unopposed motion proceedings, it made findings without hearing any
oral evidence after declining the appellant’s
legal
representative’s request to address the court
a quo
on
concerns it may have had.
[14]
The court
a quo
had a duty to act procedurally fair to the litigants and their legal
representatives since its decision had an adverse impact on
their
rights. Its orders cast aspersions on Mr Meintjie’s ethical
behaviour. They resulted in a referral of the matter to
the
professional regulatory authority, the LPC, without him being
afforded an opportunity to defend the findings. Inviting him
and
affording him an opportunity to make submissions during the
proceedings would have contributed to the accuracy of the findings
and ultimate decision of the court
a
quo
.
[15]
RAF is statutory empowered to conduct its own investigation and make
a determination regarding claims brought against
it. The court
a
quo
had no evidence presented before
it to make a finding that there was misrepresentation and planned
fraud against RAF. The rectification
request could not have been a
misrepresentation when there was an investigation outcome to that
effect shared by the appellant
with RAF. Nothing precluded RAF from
conducting its own investigation if not satisfied. However, RAF
elected otherwise.
[16]
The uncontested evidence before the court
a
quo,
as stated in the following
passage from the founding affidavit, was
“
12.2
From the
collision report compiled by Trafcol Collision Investigators and
provided to the Respondent, the details of the accident,
and the
claimant Karmann Noortman appear.
The
respondent despite these details has failed or refuses to appoint an
investigator to verify the aspect (s) which seemingly it
disagrees
with and chooses to do nothing delaying the finalisation of the
claim.
”
(sic).
[17]
None of the findings the court
a quo
made had been open for it
to make as they were based on facts, pleadings and inadmissible
evidence that was not before it. Moreover,
these findings were made
without any admissible evidence, as the parties concerned were not
invited to make presentations before
the findings. They were mainly
based on the information from the court file to which the court had
not been referred. The court
a quo
did not constrain itself to
the pleadings or papers for the issue before it. It went beyond that
and perused the whole court file.
It was required to adjudicate on
the issue before it as per the pleadings and evidence presented to
it. The rectification application
required that it be treated as an
interlocutory application, not as disposing of the matter in its
entirety.
CONCLUSION
[18]
The tenor of the court a
quo'
s judgment suggests that there
was something untoward about the rectification application. It based
this finding on its reading
of the court file content it was not
referred to. The issue before it, as already alluded to, was whether
or not the appellant
had made out a case for an order to have his
identity details corrected. Which issue RAF knew about, according to
the correspondence
exchanged and the rectification application. The
application was properly served on RAF, and it can be accepted that
it elected
not to oppose same. It was not open to the court to read
the contents of the court file for the purpose of making a finding
without
affording the side of the interested parties an opportunity
to be heard, especially when they appeared before it.
[19] In the absence
of facts or evidence supporting the correct exercise of discretion
regarding the rectification application,
the court
a quo
would
not be justified in refusing to grant the rectification order and
make the findings it did. For these reasons, this court
is at liberty
to interfere with the discretion exercised by the court
a quo
.
It follows then that the order granted by the court
a quo
ought to be set aside and the appeal to succeed.
[20] Consequently,
I propose the following order:
Order:
1.
The order granted by the court
a
quo
is set aside
and
substituted with the following:
a.
The appeal is upheld.
b.
The rectification application is remitted
to the court
a quo
.
c.
The finding of fraud and the order of
referral for investigations to the Legal Practice Council,
Mpumalanga, Director of Public
Prosecutions, Mpumalanga, the Station
Commissioner, Nelspruit Police Station and the Chief Executive
Officer of Road Accident Fund,
is set aside.
d.
No costs order is made.
N.
G. M. MAZIBUKO
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MBOMBELA
I agree
M. B. G. LANGA
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MBOMBELA
I agree and it is so
ordered
L. VUKEYA
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MBOMBELA
Appearances
:
For
the
appellant
:
Instructed
by:
For
the respondent:
Advocate
T. Ngwenya
Meintjies
& Khoza Attorneys
No
appearance
Date
heard:
Date
of Judgment:
23
August 2024
28
October 2024
[1]
Trencon
Construction Pty (Ltd) v Industrial Development Corporation of South
Africa Limited and Another
[2015] ZACC 22
;
2015 (5)
SA 245
(CC);
2015 (10) BCLR 1199
(CC) para 88-89; Hotz and Others v
University
of Cape Town
[2017] ZACC
10
;
2017 (7) BCLR 815
(CC);
2018 (1) SA 369
(CC) para 28.
[2]
Minister
of Justice and Correctional Services and Others v Estate Late
Stransham-Ford and Others
2017 (3) BCLR 364
(SCA) para 24.
[3]
Magistrates
Commission and Others v Lawrence
[2021] ZASCA 165
;
2022 (4) SA 107
SCA para 78-79.