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[2024] ZAECMKHC 119
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Yeomans v MEC for Roads and Public Works of the Eastern Cape Province (3889/2015) [2024] ZAECMKHC 119 (29 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not
reportable
CASE
NO. 3889/2015
In
the matter between:
RICHARD
ALEXANDER YEOMANS
Applicant
and
MEC
FOR ROADS AND PUBLIC WORKS
OF
THE EASTERN CAPE PROVINCE
Respondent
JUDGMENT
LAING
J
[1]
This is an interlocutory application for an interim payment
of R
7,500,000 in terms of rule 34A(1) of the Uniform Rules of Court
(‘URC’), pending the outcome of the action proceedings.
The applicant also seeks an order prescribing the procedure for the
further conduct thereof.
Background
[2]
The applicant’s attorney, Mr Jonathan Cohen, stated
in a
founding affidavit that the underlying claim was for damages suffered
by the applicant because of personal injuries sustained
in a motor
vehicle accident that occurred on 6 August 2012 between Gariep Dam
and Venterstad. The three-axle truck driven by the
applicant
overturned when he attempted to negotiate a sharp bend in the R701
provincial road.
[3]
The matter went to trial but only for the determination
of liability.
On 14 July 2020, Smith J (as he was then) held the respondent liable
for such damages as the applicant was able to
prove; the learned
judge made no finding in relation to contributory negligence. The
respondent’s appeal was unsuccessful.
The quantification of
damages remains to be determined.
[4]
In his particulars of claim, the applicant described
the extensive
personal injuries that he suffered, including a cervical spine
fracture that has caused total paralysis from his
chest downwards. He
relied on several expert reports to substantiate his claim.
[5]
Furthermore,
the provisions of the Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (‘the COID Act’)
apply,
entitling the applicant to payment of compensation which must be
deducted from any award of damages to be made by the court
in due
course.
[1]
To that effect, Mr
Cohen averred that the applicant received compensation to the sum of
R 556,367 until 22 June 2023, after which
it was assumed for purposes
of the application that the Compensation Commissioner would continue
to pay him a monthly pension of
R 6,100 until the date upon which the
court awards him damages.
[6]
Mr Cohen tabulated the damages as follows:
Item
Sub-total
(R)
Total
(R)
(a)
Past
hospital, medical and related expenses
[2]
1,736,643
1,736,643
(b)
Estimated
future expenses, including medical and related expenses, as well
as further expenses regarding attendant care, assistive
devices,
therapy, and alterations to applicant’s home
[3]
10,184,324
10,184,324
(c)
Past and
future loss of earnings or earning capacity:
[4]
(i)
past loss (after deduction of a 5% contingency
amount)
(ii)
future loss (after deduction of a 10% contingency
amount)
(iii)
less COID Act payments received to date of actuarial calculation
2,310,181
748,696
(605,170)
2,453,707
(d) General
damages for permanent impairment, disablement and handicap; past
shock; past and future pain, suffering
and discomfort; permanent
disfigurement; reduced life expectancy; and permanent loss of
enjoyment of amenities of life
4,000,000
4,000,000
Total damages
claimed (R)
18,374,674
[7]
The applicant is unemployed and does not earn an income.
Mr Cohen
alleged that the applicant has extensive medical needs and daily
assistance requirements, without which his health would
be
imperilled. He went on to describe the applicant’s financial
situation, referring to his indebtedness to Standard Bank
Ltd and how
this had resulted in proceedings for the recovery of a bank loan and
for an order to have his primary residence declared
executable. A
primary purpose of the present application was to allow the applicant
to obtain an interim payment to cover such
indebtedness. This would
minimise the risk of possible homelessness or associated hardships.
[8]
Furthermore, Mr Cohen indicated that the applicant required
approximately
R 60,000 per month to meet his expenses. It was,
accordingly, essential for him to obtain the interim payment in
question.
[9]
Mr Cohen contended that, having regard to the value of the
applicant’s
claim, less general damages, the sum of R 7,500,000
would be appropriate. He also pointed out that the accident occurred
on 6 August
2012; the action had been delayed by various
interlocutory applications, the separation of issues, the appeal
process in relation
to the determination of liability, and the
COVID-19 pandemic. Accordingly, this was an appropriate matter for
the court to order
an early trial and to issue such directions as to
ensure that it was ready to proceed on the allocated date.
[10]
The present application was initially set down for hearing on 12
March 2024.
An order was granted by agreement in terms of which the
respondent was ordered to make an interim payment of R 2,775,076 and
that
the matter be postponed until 1 August 2024 for the delivery of
outstanding answering and replying papers.
[11]
In a
supplementary affidavit, Mr Cohen indicated that he had contacted
Standard Bank Ltd after receipt of the interim payment to
ascertain
how much was required to repay the outstanding loan and to settle the
proceedings. Pending a response, he estimated that
this amounted to
approximately R 880,000. He went on to allege that the applicant owed
R 1,399,837 to his medical aid scheme for
past medical and related
expenses; the applicant also owed R 315,393 to sundry creditors,
including Absa Bank Ltd, Woolworths,
the City of Cape Town, and the
supplier of a new wheelchair. Finally, the applicant owed Mr Cohen’s
legal practice at least
R 3,645,306 for services provided as
attorneys or record.
[5]
Consequently, the applicant owed more than R 6,240,536 to various
parties. He persisted in his claim for the balance of the payment
originally claimed, i.e. R 4,744,924.
[6]
[12]
In addition, because of the respondent’s delay regarding the
interim
payment, the applicant incurred further damages pertaining to
the legal fees incurred for execution proceedings, as well as
interest
lost on the late interim payment; this totalled R 57,018.
The respondent has since undertaken to pay the amount in question.
[13]
The state
attorney, Mr Laubscher Potgieter, deposed to the respondent’s
answering affidavit, pointing out that the interim
payment of R
2,755,076 was for the applicant’s past and future medical
expenses. It excluded provision for loss of income
because this was
disputed. The applicant had commenced work for his last employer,
RTS,
[7]
only three weeks before
the date of the collision; furthermore, he had produced no payslips,
and he had informed the industrial
psychologist, Dr Peter
Whitehead,
[8]
that RTS would
close its business. Consequently, the respondent intended to obtain
its own expert opinion regarding loss of income.
[14]
Mr Potgieter proceeded to identify and deal with the four grounds
upon which
he alleged the application was based. He contended,
firstly, that the repayment of the loan from Standard Bank Ltd did
not fall
within the ambit of rule 34A(1). He contended, secondly,
that the respondent’s interim payment of R 2,755,076 included
provision
for the applicant’s past and future medical expenses;
this was sufficient to cover his indebtedness to the medical aid
scheme.
He contended, thirdly, that the settlement of amounts owed to
sundry creditors was also something that did not fall within the
ambit of rule 34A(1); the applicant had, moreover, failed to comply
with rule 34A(2) by neglecting to provide documentary proof
of the
amounts in question. He contended, fourthly (and finally), that the
payment of legal fees did not form a proper basis upon
which to claim
an interim payment.
[15]
The applicant, in reply, dealt with Mr Potgieter’s assertions
regarding
his source of income after the accident. He averred that he
had undertaken contract work for about five years as a tetraplegic at
the Fish Hoek fire station, in terms of the expanded public works
(‘EPW’) programme. He had earned R 150 per day, which
later increased to R 180 per day; however, he had no documentary
proof thereof. He had later left such employment, for various
reasons, and had subsequently been unemployed. At present, the
applicant’s sole source of income was a pension from the
Compensation Commissioner, which had increased to R 6,558 per month.
[16]
Furthermore,
the applicant reiterated that he and his wife continued to suffer
financial hardship. The respondent’s interim
payment had
alleviated his situation to some extent, but R 3,485,460 was still
required to settle his indebtedness.
[9]
He also estimated that he would require approximately R 50,000 per
month to meet his expenses once he had settled his indebtedness
to
Standard Bank Ltd, using the interim payment already received. His
wife was employed at Absa Bank Ltd and earned a gross income
of R
22,000 per month.
Issues
to be decided
[17]
The issues
to be decided are as follows: (a) whether the applicant has met the
requirements of rules 34A(1) and (2); (b) if so,
then, subject to the
provisions of rule 34A(4), what would constitute a just award; and
(c) what procedure for the further conduct
of the matter should be
prescribed, as envisaged under rule 34A(7).
[10]
A
brief analysis of the applicable principles is set out below.
Legal
framework
[18]
The relevant provisions of rule 34A provide as follows:
‘
34A
Interim payments
(1) In an action
for damages for personal injuries or the death of a person, the
plaintiff may, at any time after the expiry
of the period for the
delivery of the notice of intention to defend, apply to the court for
an order requiring the defendant to
make an interim payment in
respect of his claim for medical costs and loss of income arising
from his physical disability or the
death of a person.
(2) Subject to the
provisions of rule 6 the affidavit in support of the application
shall contain the amount of damages claimed
and the grounds for the
application, and all documentary proof or certified copies thereof on
which the application relies shall
accompany the affidavit.
(3) …
(4) If at the
hearing of such an application the court is satisfied that–
(a) the defendant
against whom the order is sought has in writing admitted liability
for the plaintiff’s damages; or
(b) the plaintiff
has obtained judgment against the respondent for damages to be
determined,
the court may, if it
thinks fit but subject to the provisions of subrule (5), order the
respondent to make an interim payment of
such amount as it thinks
just, which amount shall not exceed a reasonable proportion of the
damages which in the opinion of the
court are likely to be recovered
by the plaintiff taking into account any contributory negligence, set
off or counterclaim.
(5) …’
[19]
Van
Loggerenberg observes that the introduction of the rule has
alleviated, to some extent, the hardship that a plaintiff may suffer
because of having to lay out or borrow funds, pending the
determination of a claim.
[11]
In
Nel v
Federated Versekeringsmaatskappy Bpk
,
[12]
Schabort J emphasised that the court has at its disposal a discretion
that must be exercised judicially from case to case, dependent
on the
merits of each particular matter.
[13]
[20]
Regarding
the interpretation to be given to rule 34A, it was held, in
Karpakis
v Mutual & Federal Insurance Co Ltd
,
[14]
that the only restrictions to which an interim payment was subject
are those contained in the rule itself. To that effect, Lichtenberg
J
found that the rule did not prohibit an interim payment in relation
to future medical expenses and future loss or earnings.
[15]
In the more recent case of
Ngcobo
v Oelofse
,
[16]
Ford AJ stated that an applicant must, as a bare minimum, set out the
following: (a) proper grounds for the application; (b) documentary
proof or certified copies thereof, which must accompany his or her
affidavit; (c) sufficient detail or quantification of medical
costs
in the short term to warrant an interim payment; and (d) sufficient
detail or quantification of loss of earnings and what
he or she will
require in the short term to warrant such payment.
[17]
The learned judge held, further, that legal costs, household
expenses, and the need to repay loans from family or friends do not
constitute valid bases for interim payments.
[18]
[21]
The above cases were referred to by the parties in argument and
provide a basic
framework for the relevant legal principles. These
are applied to the facts of the matter in the discussion below.
Discussion
[22]
It is common cause that the applicant’s claim is for damages in
relation
to personal injuries that he sustained in an accident.
Furthermore, he has already obtained judgment against the respondent
for
such damages as are to be determined. The appeal was
unsuccessful. In the present matter, his claim is expressly based on
past
and future medical expenses as well as past and future loss of
earnings or earning capacity that arise from his physical disability;
he has excluded general damages. Consequently, the applicant has
satisfied, on the face of it, the essential requirements of rule
34A.
The respondent’s arguments must nevertheless be considered in
greater detail.
[23]
Counsel for the respondent initially focused his opposition to the
application
on the contention that the applicant’s claim fell
outside the ambit of rule 34A(1). Referring to
Ngcobo
, counsel
asserted that the applicant could not claim an interim payment for
purposes of repaying the loan to Standard Bank Ltd,
settling amounts
owed to sundry creditors, or paying his legal fees. The provisions of
rule 34A(1) only permit claims for medical
costs and loss of income.
Counsel also contended that the applicant had failed to supply
sufficient documentary proof of the claims
in question.
[24]
In
Karpakis
, the court dealt with the question of whether an
interim payment should be refused where there was a likelihood, if
not a certainty,
that the payment would be used for the defrayment of
legal fees. Lichtenberg J held as follows:
‘
The plaintiff
would still be able to apply for an interim payment and, if granted
and thereafter paid to him, he could quite properly
pay it over to
his attorney as a deposit for the fees in the action.
A
fortiori
must this be the case with the amount which the Court orders the
defendant to pay to the plaintiff for his loss of income. The
Court
will not order such sum if the plaintiff has not suffered such loss
already. Surely, if he obtains it by way of interim payment
because
he has already suffered it, he must be able to use it in whatever
reasonable manner he chooses, including, obviously, paying
it to his
attorney as a deposit.’
[19]
[25]
As counsel for the respondent acknowledged, it is open to an
applicant to use
an interim payment as he or she sees fit. Similarly,
Cilliers (
et al
) remarks:
‘
What a plaintiff
does with her compensation is no concern of either the defendant or
the court: the improbability that an award
will be used to make good
the plaintiff’s loss is no reason to deny damages, and a court
cannot refuse the plaintiff compensation
purely because she is more
likely to spend the money at the casino than at the chemist. For the
issue is not how the award will
be used, but whether the plaintiff
has suffered a loss for which she is entitled to be compensated.’
[20]
[26]
The distinction to be drawn is between the subject of the applicant’s
claim and the purpose to which he or she applies any award made in
that regard. Where the applicant has instituted an action for
damages
in relation to personal injuries, as is the case here, the subject of
any claim brought under rule 34A(1) must be limited
to medical
expenses and loss of income that have occurred because of such
injuries. Provided that either the respondent has admitted
liability
for the damages, or the applicant has already obtained judgment in
that regard, the court may, in the exercise of its
discretion, order
the respondent to make interim payment of an amount that is fair, and
which does not exceed a reasonable percentage
of the damages that the
applicant is likely to recover at trial. How the applicant intends to
use such interim payment or the purpose
to which he or she applies
such award is irrelevant.
[27]
In the present matter, the applicant has referred to his various
debts merely
to demonstrate the parlous state of his finances and the
severe economic hardship that he and his wife are experiencing. This
was
done, clearly, to persuade the court in the exercise of its
discretion regarding what would constitute a just interim payment and
to support the applicant’s seeking an early trial. The amounts
in question do not form the basis for his claim. He has tabulated
his
claim as one based on past and future medical costs and past and
future loss of earnings or earning capacity. The distinction
is clear
enough.
[28]
During argument, counsel for the respondent adjusted his approach to
a certain
extent and argued that the applicant had failed to meet the
requirements of rule 34A(2). There was insufficient documentary proof
or certified copies to support his claim. The provisions of rule
34A(2) constitute an important safeguard to protect a respondent
against an applicant’s over-zealous reliance on the remedy
available under rule 34A(1).
[29]
The court
held, in
Karpakis
,
that an applicant’s attachment of an expert report to his or
her affidavit, in support of a rule 34A application, constitutes
substantial compliance with the provisions in question.
[21]
Furthermore, in
Nel
,
the court indicated that where it was apparent from the papers that
the relevant documentation had already been furnished to the
respondent, prior to the application, it was unnecessary for the
applicant to attach such documentation to his or her founding
affidavit.
[22]
[30]
In the present matter, Mr Cohen averred as follows in his founding
affidavit:
‘
As alleged in
paragraph 16 of the particulars of claim, the applicant relies on the
following medico-legal reports filed on his
behalf in terms of
Uniform Rule 36(9)(b) which I pray be regarded as if included and
incorporated herein; and which provide particulars
of the nature and
extent of the bodily injuries which the applicant sustained in the
accident, as well as the nature, effects and
duration of the
permanent impairment, disablement and handicap which he has suffered
and which give rise to the damages which he
claims from the
respondent, as well as the treatment and care which he will require
in the future, and the costs thereof…’
[31]
Mr Cohen then listed the various medico-legal experts involved,
describing
the reports in question. These were all previously
delivered to the respondent in terms of rule 36(9)(b) and form part
of the record.
Similarly, Mr Cohen referred to the report of the
industrial psychologist, Dr Whitehead, as well as the reports of Ivan
Kramer
CC Consulting Actuaries, all of which having been filed
already. There was no need to have attached the reports in question
to
the application. The respondent was in possession thereof prior to
the institution of the present proceedings. The applicant has
complied substantially with the requirements of rule 34A(2).
[32]
Counsel for the respondent went on to point out, with specific
reference to
Dr Whitehead’s report, that it lacked supporting
documentation such as copies of employment contracts, tax invoices,
bank
statements, tax returns, and similar proof to substantiate the
applicant’s claim for past and future loss of earnings or
earning capacity. It was, counsel contended, chiefly anecdotal in
nature.
[33]
The report had already been placed squarely in dispute by Mr
Potgieter in his
answering affidavit. He explained that the
respondent’s previous payment of R 2,755,076 was only for the
applicant’s
past and future medical expenses. He stated further
that:
‘
No allowance has
been made for the applicant’s loss of income. This is so as the
applicant had commenced working at RTS only
approximately three weeks
prior to the collision. No payslips are available from the applicant.
Further, the applicant informed
his industrial psychologist, Mr
Whitehead, that after a period of some time, RTS was going to close
its business. It is for these
reasons that the applicant’s
claim for the component of loss of income is reasonably disputed and
the respondent intends
to appoint its own industrial psychologist in
this regard. Mr Whitehead’s report has been filed of record and
will be referred
to in argument to the extent necessary.’
[34]
That was the extent, no more, of the respondent’s challenge. In
reply,
the applicant simply confirmed that the contents of the
various medico-legal reports, including that of Dr Whitehead, were
true
and correct insofar as they related to him.
[35]
In
Van
Wyk v Santam Bpk
,
[23]
Hancke J found that:
‘
In an application
in terms of Rule 34A of the Uniform Rules for the interim payment of
damages in an action under the Multilateral
Motor Vehicle Accidents
Fund Act 93 of 1989 it should be borne in mind, in determining which
documents should in terms of Rule
34A(2) be annexed to the
application, that a Court at this stage only has to make an interim
assessment which can even be amended
at a later stage and that the
standard of proof is not as high as it will be when the action goes
on trial. The quantum of evidence
required by the Court at this stage
in order to be able to direct an interim payment will vary from case
to case and according
to the circumstances of each case. One of the
considerations which will be weighty is the extent of facts in
dispute as well as
the nature of these facts.’
[24]
[36]
The difficulty with the respondent’s position is that the facts
that
Mr Potgieter relied upon to dispute the applicant’s claim
for loss of income are far from clear. He placed no evidence before
the court to demonstrate that Dr Whitehead’s report was
factually incorrect. He merely referred to extracts therefrom to
draw
certain adverse conclusions, without the benefit of cross-examination
to test the factual basis therefor. The same approach
was adopted in
argument. Mr Potgieter also failed to address Dr Whitehead’s
methodology and findings. A vague reference was
made to the
respondent’s intention to appoint her own industrial
psychologist but that was all. The possibility cannot be
excluded
that the ensuing report might well correspond with Dr Whitehead’s.
[37]
In the absence of positive evidence to the contrary in the
respondent’s
papers or at least an indication that she would
present such evidence at trial, no real dispute of fact arises. Dr
Whitehead’s
report is,
prima facie
, adequate documentary
proof of the applicant’s claim for past and future loss of
earnings or earning capacity. It satisfies
the requirements of rule
34A(2) and establishes a provisional factual basis upon which the
court can exercise its discretion in
the making of an order that is
just in the circumstances. The correctness of Dr Whitehead’s
views will be properly examined
at trial but, for the purposes of
rule 34A, viz. to alleviate the financial difficulties experienced by
an applicant in having
to spend or borrow funds for the determination
of damages when judgment has already been obtained against the
respondent, his report
is sufficient.
Relief
and order
[38]
At this
stage, it is necessary to decide what would constitute a just order.
The respondent, as Mr Potgieter averred, has already
compensated the
applicant for his past medical and related expenses. Counsel for the
respondent confirmed, moreover, that the interim
payment also served
to provide at least a further R 1,000,000 for expenses to be incurred
prior to the commencement of trial.
[25]
This ignores, however, the substantial nature of the claim for future
medical and related expenses, many of which being for what
appear to
be immediate needs, e.g. a patient hoist, attendants, a lightweight
wheelchair, a motorised assistance drive, an adapted
vehicle, and a
bed with rails and elevated headrest.
[26]
These, on their own, amount to R 1,245,650 and exclude smaller
expenses that are listed in the medico-legal reports, which seem
to
be just as urgent. In addition, there appears to be an immediate need
for alterations and additions to the home to accommodate
the
applicant’s extensive personal injuries, amounting to R
2,686,045.
[27]
Similarly, it
appears that there are immediate rehabilitation needs.
[39]
The above
assessment rests, of course, on untested factual assertions made in
the underlying affidavits and various reports upon
which the
applicant relies. For purposes of deciding whether to order an
interim payment, a court is not required to evaluate the
evidence and
determine whether the applicant has proved his or her claim on a
balance of probabilities; that is something for trial.
Any award
based on such assessment carries, admittedly, an inherent risk that
the applicant will be unable to prove the extent
of his or her claim
for medical costs and loss of income in due course. In
Karpakis
,
Lichtenberg J held that the entire claim remains extant and must
still be proved, including those portions of it as might be covered
by the interim payment.
[28]
The award itself is subject to possible repayment, in whole or part,
in terms of a final order or judgment on the quantum, as apparent
from rule 34A(10). That seems to be a risk, however, with which the
applicant must be reconciled before electing to use the available
remedy.
[29]
If the applicant
has, in the end, demonstrated that his or her claim for interim
payment does not fail the preliminary yardsticks
and safeguards
created under rule 34A,
[30]
then the court is merely required to determine: (a) the likelihood of
the applicant’s being able to recover his damages;
(b) what
would constitute a reasonable proportion thereof for purposes of
setting an upper limit on any order for an interim payment;
and (c)
what amount would be just in the circumstances.
[40]
The
likelihood of recovery must be determined with reference to the
nature of the facts and the extent to which they are in dispute.
[31]
As already found, the applicant’s claim for medical costs and
loss of income is anchored upon the underlying reports, which
are,
prima
facie
,
factually based and logical in relation to the findings made; the
respondent has not presented any evidence to give rise to a
real
dispute of fact and has not, save for her criticism of Dr Whitehead’s
report, advanced any argument to challenge the
findings in question.
Consequently, there is, at the least, a moderate likelihood that the
applicant will recover his damages.
For purposes of determining what
would constitute a reasonable proportion thereof, an inverse
relationship exists between the relevant
percentage and the degree to
which the respondent has successfully challenged the likelihood of
recovery, in other words, the greater
the doubt, the smaller the
percentage. In the present matter, for the reasons already discussed,
the court is not persuaded that
the respondent has raised enough
doubt in relation to the applicant’s claim to demonstrate that
there is not, at the least,
a moderate likelihood of recovery; the
percentage must reflect this accordingly.
[41]
In the present application, the respondent has not disputed the
nature and
extent of the applicant’s injuries. The seriousness
thereof ought not to be understated. The accident occurred more than
12 years ago, and the applicant has had to adjust to a lifestyle that
accommodates his total paralysis from the chest downwards.
A
substantial portion of his indebtedness pertains to outstanding legal
fees that were incurred in the pursuit of his claim. He
has since
obtained judgment, as well as several costs orders, but these remain
contested. It would be fair to take the above factors
into
consideration when determining a just amount.
[42]
Consequently, in a situation such as the present, where the applicant
suffers
severe physical disability, where no real dispute arises on
the papers in relation to the nature and extent of his claim for
medical
costs and loss of income and where no serious doubt has been
cast thereon, and where the applicant has been constrained to spend
or borrow funds to pursue the action and where he will require
further funds for the determination of quantum, it would seem
entirely
just to permit the applicant to invoke the remedy available
under rule 34A. Fairness dictates that the court should also make an
award that accommodates a significant percentage of the medical costs
and loss of income claimed.
[43]
The applicant’s claim is for R 7,500,000; this represents
approximately
52% of his total claim for damages. The respondent has
already paid R 2,755,076. For the reasons set out in the preceding
paragraphs,
the court is of the opinion that the applicant is likely
to recover the full amount of the claim for interim payment at trial
and
that it represents a reasonable proportion of his total claim for
damages. It would, in the circumstances, be just to award to the
applicant the remaining balance of R 4,744,924.
[44]
Regarding
the further relief sought by the applicant, it is common cause that
the accident occurred on 6 August 2012; the action
itself was
instituted more than nine years ago. For a litigant in the
applicant’s position, it would be unjust to have the
determination of quantum delayed for any longer than was
necessary.
[32]
Consequently,
it would be fair to require the parties to deliver all outstanding
papers at the earliest opportunity and for the
allocation of a trial
date to be given priority.
[33]
[45]
The only outstanding issue is that of costs. There is no reason why
the general
rule should not be applied; the applicant is entitled to
the recovery thereof.
[46]
The following order is made:
(a)
the respondent is ordered to make a further interim payment of R
4,744,924 to the applicant in terms of rule 34A(1) of
the URC,
pending trial;
(b)
the procedure for the further conduct of the action is hereby
prescribed in terms of rule 34A(7), whereby:
(i)
the parties are directed to file all outstanding
papers, including
expert reports and joint minutes, within 90 calendar days of the date
of this order, unless directed otherwise;
(ii)
the registrar is directed to allocate a date for the
early trial of
the matter; and
(c)
the respondent is ordered to pay the applicant’s costs of the
application.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the applicant:
Adv
Crowe SC
Instructed
by:
Jonathan
Cohen and Associates
5
th
Floor, General Building
42
Burg Street
CAPE
TOWN
Tel:
021 422 5270/64
(Ref:
JC/01/yeo1/001)
c/o
Wheeldon Rushmere & Cole
119
High Street
MAKHANDA
(Ref:
Mr Van der Veen)
For
the respondent:
Adv
Rorke SC with Adv Dala SC
Instructed
by:
The
State Attorney
29
Western Road
Central
GQEBERHA
Tel:
041 585 7921
(Ref:
Mr L Potgieter/1514/2015/C)
c/o N
N Dullabh & Co
5
Bertram Street
MAKHANDA
Date
of hearing:
01
August 2024
Date
of delivery of judgment:
29
October 2024
[1]
The applicant referred to sections 22(1) and 36(2) of the COID Act,
read with Chapters V and VI thereof.
[2]
Details of the expenses were listed in a separate schedule. The
applicant has used a revised amount, based on corrections made
after
having detected errors in the compilation of the amount reflected in
his particulars of claim.
[3]
The applicant based his calculation on expert reports, including
that of Ivan Kramer CC Consulting Actuaries. The details thereof
were listed separately.
[4]
Similarly, the applicant relied on expert reports, including the
above actuaries and an industrial psychologist, Dr Peter Whitehead.
[5]
The amount represented the sum claimed in terms of five separate
bills of cost pertaining to orders previously granted in the
applicant’s favour. The bills have become opposed, however,
and have yet to be taxed.
[6]
The
amount is the difference between the original claim and the interim
payment already received, as ordered, i.e. R 7,500,000
– R
2,755, 076 = R 4,744,924.
[7]
The reference to ‘RTS’
is
unclear; Dr Whitehead’s report indicates that the applicant
was employed at ‘Frans Lubbe’, which is described
as a
refrigerated transport service. The applicant did not deal with the
discrepancy in reply.
[8]
See
n 4, above.
[9]
The amount is calculated by reducing the applicant’s total
indebtedness to various parties by the sum of the interim payment
that he recently received, i.e. R 6,240,536 – R 2,755,076 = R
3,485,460.
[10]
The
subrule stipulates that the court may prescribe the procedure for
the further conduct of the action and in particular may
order the
early trial thereof.
[11]
DE v
an
Loggerenberg,
Erasmus:
Superior Court Practice
(Juta, vol 2, 2ed, service 16, 2021), at D1-452.
[12]
1991
(2) SA 422
(T).
[13]
At
427J- 428A.
[14]
1991
(3) SA 489.
[15]
At
501B-E.
[16]
2024
(1) SA 233.
[17]
At
paragraph [112].
[18]
At
paragraphs [123] to [125].
[19]
Karpakis
,
at 506I- 507B.
[20]
AC
Cilliers
et
al
,
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
(Jutastat e-publications, 5ed, 2009) ch42- p 1424.
[21]
Karpakis
,
at 503C- D.
[22]
Nel
,
at 427G- I.
[23]
1997
(2) SA 544 (O).
[24]
Headnote, and a
t
547B- D. See, too,
Karpakis
at 496E- G.
[25]
The
amount is derived from the difference between the interim payment
and past medical and related expenses, i.e. R 2,755,076
– R
1,736,643 = R 1,018,433.
[26]
The
information is contained in the expert reports of an occupational
therapist, Ms Marion Fourie, and a physiotherapist, Dr Elsje
Scheffler.
[27]
This
appears from the report of a quantity surveyor, Mr Mike Kleve.
[28]
Karpakis
,
at 496D- E.
[29]
The
possibility that an order for interim payment could prove to be
hollow if the applicant has spent all the money that he or
she
received was discounted by Lichtenberg J, in
Karpakis
,
who pointed out that such an event was highly unlikely if,
inter
alia
,
the court has exercised its discretion properly and has properly
taken into account all the safeguards that rule 34A provides
to
ensure that the respondent is duly protected. At 498I- 499D.
[30]
The
terms were used in
Karpakis
;
see 496F and 499A. See, too,
Fair
v SA Eagle Insurance Co Ltd
1995 (4) SA 96
(E), at 99D. An example thereof is the requirement,
under rule 34A(1), that the claim for interim payment be limited to
medical
costs and loss of income; another example is the
requirement, under rule 34A(2) that the claim be supported by
documentary proof
or certified copies thereof.
[31]
Van
Wyk
,
see n 23 and 24 above.
[32]
See
Langa CJ’s comments in relation to rule 34A(7) in
Minister
of Safety and Security v Luiters
[2006] ZACC 21
;
2007 (2) SA 106
(CC), at paragraph [41]. The matter involved a claim
for damages arising from an incident that had rendered the plaintiff
tetraplegic;
an 11-year delay ensued before judgment on the merits
was confirmed on appeal.
[33]
During
argument, counsel for the respective parties seemed to have been
ad
idem
that all outstanding papers, including expert reports, were to be
delivered by the end of the fourth term. The timeframe will
require
adjustment to accommodate the date of the judgment.