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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 3892/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE : 27/01/2025
SIGNATURE :
In the matter between:
STEPHEN MATSOBANE SEBOTHOMA :PLAINTIFF
And
ROAD ACCIDENT FUND :DEFENDANT
JUDGMENT
1. The matter came before court for determination on both merits and quantum aspect
of the claim. At the calling of the matter both the plaintiff and the defendant were
present in court, however, the plaintiff indicated that the defendant was under bar
which was not uplifted and as such the defendant remain bared from the
proceedings. The defendant also confirmed that they were bared, however,
contested that the bar does not prevent them from participating in the proceedings
like any other normal litigants.
2. When the court enquire from the de fendant on how they were going to proceed
defending the matter when bared and there is no plea(Defence) before court, the
counsel for the defendant indicated that, the fact that one is bared from filing any
further pleadings does not prevent the person fro m presenting his or her case to the
court even though there is no plea before court. He further indicated that a party can
still lead his or her case and still be allowed to cross examine the other party during
the proceedings. He indicated that there is a precedent (Case law) to the submission
which he was making and that he was not in possession of such case law but he
was very sure that such case exists.
3. The defendant was then allowed to participate in the proceedings pending him
providing the court with the authority which he was making reference to. It must be
indicated that, it was put to the defendant that, his participation in the proceedings
must be limited to the filing of notice of intention to defend the proceedings as
nothing before court which indicate what is the defendant’s case in the form of a plea
and or any form of defence. If no plea before court at the start of the hearing a party
can not be allowed to plead during the proceedings and that will again defeat the
purpose of bar.
4. I must in dicate that later in the day, defendant provided the court with the case law
he was referring to earlier which is a case of Pulane Qhamakoane v Road Accident
Fund case number 19131/2020, Gautenf Division, Pretoria dated 12th August 2024 a
reportable case . If one considers the merits of this case, they are completely
different from what is before court and I am of the view that the defendant counsel
misread the case and that lead to him misleading himself regarding the status of a
party who is bared from par ticipating in the proceedings. In the case referred to a
party was initially bared and latter the plaintiff amended its pleadings. The court in
that case correctly indicated that should a party amend the pleadings which must
then be served on the other par ty, it then re -opens the pleadings and the party who
was under bar is now given the second lease of life in that he/she may now file a
plea and continue with the proceedings as if there was no bar.
5. The counsel for the defendant also misinterpreted the case in that the case does not
allow a party from participating in the proceedings without filing a plea. The court re -
opened the pleadings and allowed the defendant to file its plea which will allow the
defendant to put its case before court whereupon, they w ill be able to lead their own
case. It must be indicated that, the defendant must be able to distinguish himself
from the case he is representing his client on. The case belongs to the client and not
counsel. The legal practitioner present his client’s ca se before court and that case
must be in the form of pleadings. In the absence of the pleadings before court, the
counsel will not be able to address the court as there is no case before court and if
the counsel then need to present any case before court w hich is not in the
pleadings, the counsel will then be exposing himself to becoming personally involved
in litigation.
6. As such should then the situation be allowed to prevail, the counsel will at some
stage, expose himself to having to take a witness box and be cross examined on the
merits of the case. If no plea has been filed by a party to the litigation, it clearly
means there is non compliance with Rule 18(4) of the Uniform Rules and whoever
expose himself or herself to such then, expose himself or her self to being an object
of preparation by the other party and being cross -examined accordingly. I am not
sure if the counsel is aware of what he is exposing himself to or whether he is aware
of such consequences of his submissions to the court.
7. The approac h regarding the pleadings and putting each party in a position to be able
to prepare for trial and not be taken by surprise was indicated in the case of Trope v
South African Reserve Bank 1992 [3] SA 208 T at 210G -J:
“ It is , of course, a basic principle that particulars of claim should be phrased
that a defendant may reasonably and fairly be required to plead thereto. This
must be seen against the background of the further requirement that the
object of pleadings is to enable each side to come to trial prepared to meet
the case of the other and not be taken by surprise. Pleadings must therefore
be lucid and logical and in an intelligible form; the cause of action or defence
must appear clearly from the factual allegations made(Harms Civil Procedure
in the Supreme Court at 263 -4) At 264 the learned author suggests that, as a
general proposition, it may be assumed that, since the abolition of further
particulars, and the fact that non -compliance with the provisions of Rule 18
now(In term of Rule 18(12)) am ounts to irregular step, a greater degree of
particularity of pleadings is required. No doubt, the absence of the opportunity
to clarify an ambiguity or cure an apparent inconsistency, by way of further
particulars, may encourage greater particularity in t he initial pleadings”.
8. The ultimate test, is always whether the pleadings before court complies with the
general Rule 18(4) and the principles laid down in number of existing case law. What
make the current case even worse is that there are no pleadings at all to assess
whether the other party will be prejudiced by the non disclosure of the defence in the
pleadings or not, it is just non existing and the counsel for the defendant will in a way
be disclosing the defendant’s defence during the proceedings. Th is will not only be
prejudice to the plaintiff but it will amount to serious injustice and non compliance
with the Rules of this court which stood the tests of time for decades if not centuries.
9. Wherefore, I am of the view that the defendant’s case is not before court and the
counsel will not be able to introduce the case during the proceedings. As such the
counsel’s submission that, he should be allowed to present his case and cross
examine the plaintiff is misplaced and not based on any law nor the counse l failed to
convince this court in creating a new precedents. On the counsel’s insistence that he
should be allowed to participate in the proceedings it was made clear to him that his
participation will only be limited to his papers before court which at t he stage its only
notice of intention to defend.
10. Upon the defendant being allowed to participate up to where his papers allows him
to, he then submitted to the court that he basically had no intention of proceeding
with litigation in that should the court have allowed him to fully participate in the
proceedings, his next step was to request a matter to be postponed on the basis that
he was never provided with the bundle. However, such application was not before
court and never placed before court. It must h owever be indicated that should that
have been the reason, the defendant would then have to go to detail in convincing
this court to postpone the matter on the basis that, index and pagination were not
served on a matter where a party is under bar. It is t herefore, clear that, the
defendant was basically trying his luck knowing that his request was not provided for
by any legislation nor case law but proceeded with his submission, which in my view
was trying to intentionally mislead the court.
11. It must furth er be indicated that the defendant did not ask for any indulgence to
make an application to uplift the bar, the only submission they made was to be
allowed to participate in the proceedings like any other litigants which was denied. I
will therefore deal w ith the plaintiff’s case.
12. The plaintiff was called as the only witness in the proceedings to give evidence on
the merits on how the accident occurred. There was also a section 19(f) affidavit
filed on record, however, the affidavit does not fully disclose on how the accident
occurred. The plaintiff state the following: ‘ On or about 09th August 2019 I was
involved in a motor vehicle accident at Elandskraal Road to Marble Hall in Limpopo
Province. At the time of the accident, he was a driver on a motor vehic le bearing
registration number F[...] which collided with a silver Polo Vivo driven by Tshep[o
Motsepe bearing registration number F[...]2 in that results I sustained fatal injuries”.
13. He further indicated the following: “ I know how the accident hap pened because I
was present at the time where vehicle B hit my right front and I lost Control”. the
plaintiff was called to give evidence on how the accident occurred to confirm the
allegations as indicated in his Section 19(f) affidavit. In his evidence t he plaintiff
confirmed the accident and further indicated that on the day of the accident he was
the driver of the vehicle with registration numbers and letters F[...] when he collided
with the insured driver.
14. The plaintiff alleges that on the day of the collision he was travelling on the road
between Zebediela and Marble Hall D3600. He alleges that he was alone in the
vehicle and while so travelling, the insured vehicle came from the apposite direction
and driving in a zig -zag motion. He alleges that the insured driver came into his lane
of travel and he tried to avoid the collision by moving to the far left. He alleges that
the insured driver still came to his lane of travel and collided with him in his lane of
travel on the right front of his vehicle . He alleges that the collision was caused by the
sole negligence of the insured driver who drove into his lane of travel. As a result he
sustained serious injuries and was taken to hospital.
15. The defendant was given an opportunity, as requested in term of the filed notice to
defend. The counsel for the defendant did not proceed to cross examination nor
asking any clarity question as he indicated that he had no question to ask. There
was no other witnesses to be called by either of the parties and both of th em closed
their cases.
16. Under the circumstances I have no reason not to believe the evidence of the plaintiff
which is unopposed by the defendant. Wherefore, I am of the view that the plaintiff
has proven his case on the merits and that the defendant should be held liable 100%
in respect of proven damages by the plaintiff resulting from injuries sustained in a
motor vehicle accident which occurred on the 09 August 2019.
17. The next issue to be dealt with is with respect to the quantum aspect of the claim.
The p laintiff has filed three experts reports and an actuary to prove his quantum
claim against the defendant. According to the orthopedic surgeon the plaintiff
sustained multiple abrasions of the right upper limb, chest and right thigh,
Diaphragmatic rupture a nd right acetebular fracture. On his admission in hospital he
was resuscitated in ICU ward and later had laparotomy for the ruptured diaphragm
repair. The acetabulum was treated conservatively, including physiotherapy until
was discharged home.
18. As a result of the injuries sustained, it is indicated that he has post -traumatic severe
Hip osteoarthritis, with loss of motion on the right hip which has impact on his
abnormal gait being antalgic and stigg limb gait. The expert further indicated that it
could be i mproved with future right hip replacement. His whole person impairment
was assessed at 27% and was qualified for general damages under the narrative
test.
19. With respect to his employment, the orthopedic surgeon indicated that, his current
occupational produ ctivity is reduced to 40% which means it has reduced by 60%.
20. The occupational therapist indicated that his pre -accident employment falls under
the medium type workload. His current residual capacity considering the injuries
sustained and the sequelae there of falls within the sedentary type work load. On that
basis the occupational therapist indicated that he does not meet the physical
requirement of his pre -accident employment. The occupational therapist further
indicated that he remains a vulnerable employ ee in the open labour market and that
looking at his past work exposure and level of education he will find it difficult to
secure employment in the open labour market.
21. The industrial psychologist indicated that at the time of the accident, the plaintiff w as
employed by a construction company receiving a monthly income of R35 000.00 as
his net earnings. It is assumed that but for the accident the plaintiff would have
continued working for the same company with growth through promotional
opportunities. It is indicated that he would have secured a semi -skilled to skilled
better paying jobs in the construction in line with her work experience and
qualifications.
22. It is indicated that he would have reached his career ceiling at the median quartile of
Paterson C5 level when he would have been 55 years and there after inflationary
increases until the retirement age.
23. According to the available records, the plaintiff remains unemployed post the motor
vehicle accident. It is therefore indicated that the plaintiff then present with loss of
earnings capacity in that the plaintiff is not completely unemployable. The industrial
psychologist indicates that the plaintiff will never be able to reach his pre -accident
potential and that the deference between his pre - and post ac cident status will
constitute loss of earnings.
24. The plaintiff has also appointed an actuary to calculate the plaintiff’s past and future
loss of earnings resulting from the injuries sustained in the accident. I take note of
the calculations as in the plain tiff’s heads or arguments where contingencies of 5%
both pre and post past earnings have been applied. With respect to the future loss of
earnings a contingencies of 20% and 25% was applied. Having considered the facts
of the claim considering that the pl aintiff remain unemployable at this stage, I am of
the view that a higher contingencies should be applied. Under the circumstances
and having applied 25% contingencies pre -accident , the plaintiff present with loss of
both past and future loss of earnings in the amount of R2 747 843.00.
25. In the resultant the court makes the following order:
25.1 That the defendant is to pay the plaintiff 100% of his proven or agreed
damages.
25.2 That the defendant is to pay the plaintiff an amount of R2 747 843.00 in
respect of the plaintiff’s past and future loss of earnings.
25.3 That the defendant to provide the plaintiff with an undertaking in term of
Section 17(4)(a) of the Act as amended.
25.4 That the issue of general damages is postponed sine die.
25.5 That the defendant is to pay the plaintiff’s party and party costs including
counsel’s fee on scale B of costs.
_________________________________
T C MAPHELELA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR TH E PLAINTIFF : ADV NKABINDE
INSTRUCTED BY : NTSHOSA MADIBA INCORPORATED
FOR THE DEFENDANT : STATE ATTORNEYS
INSTRUCTED BY : MR MOSHABANE MAFIRI
DATE OF HEARING : 27 NOVEMBER 2024
DATE OF JUDGEMENT : JANUARY 2025