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2024
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[2024] ZAFSHC 217
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Hakisa v Road Accident Fund (5440/2017) [2024] ZAFSHC 217 (18 May 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:5440/2017
In
the matter between
ELIA
HAKISA
PLAINTIFF
And
ROAD
ACCIDENT FUND
RESPONDENT
Coram:
MOLITSOANE,
J
Heard:
3
MAY 2024
Delivered:
18 MAY 2024
JUDGMENT
Molitsoane
J
[1]
This matter appeared before me as a trial
enrolled and set down by agreement between the parties. On the first
day of the trial,
counsel for the defendant indicated to this court
that she held no instructions to proceed with the trial in this
matter and consequently
requested permission to withdraw as an
attorney of record of the defendant. The plaintiff did not object to
the intended withdrawal.
Although the withdrawal was requested at the
doorstep of the court, I accepted the request for the attorney of the
defendant to
cease to act in these proceedings.
[2]
The matter was set down for the hearing of
the merits. Before she could withdraw, Counsel for the defendant drew
the question raised
by the defendant in the plea in which the
following was averred: ‘The Defendant specifically pleads that
the Plaintiff was
not legally in the country at the time of the
accident thus the Defendant is not liable to compensate the
Plaintiff.’ I hasten
to add that after withdrawal of the
defendant’s attorney the matter proceeded on an undefended
basis.
[3]
At the onset, the plaintiff launched an
application in terms of rule 38(2) in which a request was made to
lead the Plaintiff’s
evidence and some of his expert testimony
by way of affidavits. The application was granted. The evidence
contained in the affidavits
aforementioned remain uncontested. I
interpose that I am satisfied that the Plaintiff has made out a case
for the order sought
and the defendant is liable to compensate him as
prayed for.
[4]
With
regard to the issue referred to by Counsel for the Defendant before
she withdrew, regarding the liability of the defendant
to compensate
illegal foreigners injured or killed in road accidents in our
country, though the issue was not pertinently argued
before me, I am
fortified that the defendant is liable to compensate those entitled
to compensation irrespective of whether the
person injured or killed
is an illegal foreigner
[1]
.
[5]
[6]
In the result I make the following order:
Order
1.1
The Defendant is liable to pay
100%
(
one hundred
percent
)
of the Plaintiff's proven or agreed damages;
1.2
The Defendant shall pay the Plaintiff the
sum of
R763 923.20( Seven hundred and
sixty three thousand and nine hundred and twenty three rand and
twenty cents
in respect of
general damages. The issue of general damages is separated from the
issue of loss of earning capacity and is
postponed to the pre-trial
roll of 2 September 2024
1.3
The Defendant shall pay the abovementioned
amount into the Plaintiff’s Attorneys trust account.
The Plaintiff's
Attorney's trust account details are as follows:
ACCOUNT
HOLDER:
VZLR
INC
BRANCH:
ABSA
BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE
OF ACCOUNT:
TRUST
ACCOUNT
ACCOUNT
NUMBER:
3[…]
REFERENCE:
MAT103105
1.4
The Defendant shall furnish the Plaintiff
with an Undertaking in terms of Section 17(4)(a) of Act 56 of 1996,
in respect of future
accommodation of the Plaintiff in a hospital or
nursing home or treatment of or the rendering of a service or
supplying of goods
of a medical and non-medical nature to the
Plaintiff (and after the costs have been incurred and upon submission
of proof thereof)
arising out of the injuries sustained in the
collision which occurred on
6 February
2017.
1.5
In the event of default on the costs
payment, interest shall accrue on such outstanding amount at the
statutory more rate on the
date of taxation / settlement of the bill
of cost, as per the
Prescribed Rate of Interest Act, 55 of 1975
, as
amended, per annum, calculated from due date until the date of
payment.
1.6
In the event that the Defendant does not,
within 180 (one hundred and eighty) days from the date on which this
order is handed down,
make payment of the capital amount, the
Defendant will be liable for payment of interest on such amount at
11,75% (the statutory
rate per annum) compounded and calculated
fourteen days from date of this order.
2.
2.1
The Defendant to pay the Plaintiff's taxed or agreed party and party
cost, up to and including the date,
when the order is made an order
of court.
2.2
The reasonable qualification fees of all
the Plaintiff’s experts of whose reports had been furnished to
the Defendant and
/ or its experts:
2.2.1 Dr JP
Marin
- Orthopaedic Surgeon
2.2.2 Ms
Hanri Meyer
-
Rita van Biljon
Occupational Therapist
2.2.3
Mr Ben Moodie
-
Industrial
Psychologist
2.2.4 Mr J
Sauer
- Actuary
2.3
Cost of Counsel on scale A.
3.
In
the event that cost is not agreed, the parties agree as follows:
3.1
The Plaintiff shall serve a notice of taxation on the Defendant's
attorney of record;
3.2
The Plaintiff shall allow the Defendant fourteen court days to make
payment of the taxed cost.
P.E.
MOLITSOANE, J
For
the Applicant:
Adv.
JC Van Eeden
Instructed
by:
Du
Plooy Attorneys
BLOEMFONTEIN
For
the Respondent:
No
appearance
Instructed
by
State
attorney (Withdrew)
[1]
See
Mudawo and Others v Minister of Transport and Another (011795/2022)
[2024] ZAGPPHC 258(26 March 2024.