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SUMMARY REPORTABLE

CASE NO.: I 3417/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TASWALD THEO JULY PLAINTIFF

and

MOTOR VEHICLE ACCIDENTS FUND DEFENDANT

PARKER J

2009 November 25

Practice - Pleadings – Exceptions to plaintiff’s pleadings – Court finding that the fact that the plaintiff bases his claim on his interpretation of s. 10 (5) (a) of the Motor Vehicle Accident Fund Act, 2001 (Act No. 4 of 2001) that is different from the defendant’s interpretation cannot render the plaintiff’s claim excipiable – The Court finding further that the test to be applied is always whether the facts pleaded disclose a cause of action – In instant case the Court finding that the plaintiff’s allegations that in breach of the settlement agreement between the parties the defendant did not make an undertaking to the service provider and the defendant failed or refused to make payment timeously to the service provider resulting in the plaintiff being obliged to make payment to the service provider disclose a cause of action – Court finding furthermore that whether the plaintiff will succeed in proving the allegations in the trial in due course should not be part of the consideration of the exception – Court holding that the exceptions were not well founded – Consequently, the Court dismissing exceptions with costs.

Statute - Section 10 (5) (a) of the MVA Fund Act (Act No. 4 of 2001) – Court finding that in terms of subsection 5 (a), read with subsection 7, of s. 10 of Act No. 4 of 2001 the MVA Fund is not restricted only to making undertakings on behalf of a patient (claimant) to a service provider and making payment to such service provider but the MVA fund may also make payment directly to a patient for certain costs and claims.

Held, that exception is restricted to matters of law, and facts alleged are taken as admitted.

Held, further that a defendant who takes an exception should satisfy the Court that on all reasonable constructions of the plaintiff’s particulars of claim no cause of action is or can be disclosed.

Held, further, that in terms of subsection 5 (a), read with subsection (7), of Act No. 4 of 2001, the MVA Fund may make an undertaking to a service provider on behalf of a claimant to which it makes payment for certain services rendered or certain goods supplied or the Fund may make advance payments directly to the claimant in respect of medical costs, loss of income or loss of support.

REPORTABLE

CASE NO.: I 3417/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TASWALD THEO JULY PLAINTIFF

and

MOTR VEHICLE ACCIDENT FUND DEFENDANT

CORAM: PARKER J

Heard on: 2009 November 2

Delivered on: 2009 November 25

JUDGMENT:

PARKER, J.:

[1] The plaintiff instituted action against the defendant by combined summons on 7 November 2007. In his particulars of claim, the plaintiff states that in March 2005 the plaintiff was involved in a motor vehicle accident in which he sustained bodily injuries, and the defendant accepted liability for the plaintiff’s damages in terms of s. 10 of the Motor Vehicle Accidents Fund Act, 2001 (Act No. 4 of 2001) (‘the MVA Fund Act’).

[2] Pursuant to the defendant’s acceptance of liability, as aforesaid, the plaintiff and the defendant entered into a Settlement Agreement. The parts of the agreement that are relevant for my present purpose are:

1. Clause 2 – ‘Cash payment’: Under this item the parties agreed that upon the conclusion of this written agreement the MVA Fund of Namibia (‘the Fund’) would make certain cash payments in the form of a cheque payment to the plaintiff. The total amount payable is N$301,621.75.

2. Clause 3 – ‘Undertakings’: Under this item the parties have agreed that upon conclusion of this written agreement, the Fund will be liable in respect of the following Undertakings, which are furnished in terms of Section 10 (5) (a) of the MVA Fund Act.

a. Future medical expenses

The fund undertakes to pay for the cost of future medical treatment of the victim (i.e. the plaintiff), including future accommodation in hospital or nursing home, the rendering of services and the supplying of goods in respect of the treatment as recommended in Medico-Legal Reports (whatever that means), prepared by the following person(s):

Dr. Steytler – treatment required is for total knee replacement and (the) accident related injuries to a value (of) N$200,000.00.

[3] Under Clause (3) of the agreement under the heading ‘Undertakings’ the only item appearing under this heading is ‘a. Future medical expenses’. This Clause is so inelegantly drafted that the confusion is created that apart from (a), there are other items to follow, e.g. (b), (c), (d), etc; but the only item appearing under the heading of Clause 3, as I have said, carries the letter (a) – a single item. I am, therefore, entitled to take it that only one undertaking was made by the defendant and agreed by the plaintiff, as has been set out above. Mr. Ueitele’s (the defendant’s counsel’s) reference in his submission to the ‘first undertaking’ is, therefore, not only wrong but woolly.

[4] Another important clause for my present purposes is Clause 6, which provides:

Where the Fund has authorised such treatment or Hospitalization, the Fund will be liable to pay for the costs in accordance with the aforesaid undertaking. Where treatment or Hospitalization occurs without prior authorization, the Fund may at its discretion pay for such treatment or Hospitalization. If it is found that there has been an over-payment, the Fund shall be entitled to correct the overpayment by deductions from the next payment due, and if necessary, from successive payments thereafter, or if that is not possible, (by) claiming reimbursement.

[5] The other Clauses are Clauses 4, 5, 7, 8, 9, and 10. I shall refer to them when it becomes necessary to do so.

[6] To return to the papers filed of record; on 16 January 2008 the defendant excepted to the plaintiff’s particulars of claim. The plaintiff filed amended particulars of claim on two occasions; that is, on 24 April 2008 and lastly on 28 May 2008. This was followed on 15 July 2008 by the plaintiff serving a notice of bar on the defendant. Thereafter, on 22 July 2008 the defendant followed with a plea together with a notice of exception that was identical in material respects to the exception the defendant had filed on 16 January 2008. It is this 22 July 2008 notice of exception which I must now determine in the present proceedings. The defendant has raised three exceptions (i.e. what the defendant characterizes as three grounds of the defendant’s exceptions).

[7] In his heads of argument filed on 27 October 2009 (I shall revert to the filing of the heads in due course.), Mr. Ueitele states that he would not pursue the second ground of the exception because, according to him, this ground had been raised in relation to the plaintiff’s initial particulars of claim but the defect in relation to the second ground has now been rectified. If follows that I must concern myself with only the first exception (exception (1)) and the third exception (exception (3)) to the plaintiff’s amended particulars of claim.

[8] In Joseph Frans Kuiiri v Bulk Trade and others Case No. I 103/05 (judgment of 31 March 2006) (Unreported), I stated at p. 12, ‘The crisp question to determine is essentially this: is the defendant’s contention that the plaintiff’s pleading objected to, taken as it stands, is legally invalid for its purpose well founded? (see Salzmann v Holmes 1914 AD 152 at 156).’ I then proceeded at pp. 12-13 of the judgment to set out briefly as follows what I consider to be the general principles of law on exception:

It is a cardinal principle in dealing with exception that if evidence can be led, which disclosed a cause of action alleged in the pleading, that particular pleading is not excipiable. Thus, a pleading is excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. (See McKelvey v Cowan NO 1980 (3) SA 525 (Z) at 526 C-F.) Besides, as Mr. Coleman, counsel for the plaintiff, submitted, an exception is restricted to pure matters of law and facts alleged are taken to be admitted. (Isaacs, Becks Theory and Principles of Pleading, 982: par. 62.) In other words, “[F]or the purposes of exception the facts pleaded must be accepted as correct.” (Marney v Watson and another 1928 (4) SA 140 (C) at 144 F-G) That is so, unless the facts pleaded are plainly false and so clearly baseless that it cannot possibly be proved. (Van Winsen, et al., The Civil Practice of the Supreme court of South Africa (Now the High Court and Supreme Court of South Africa), 1997: p 492, and the case there cited)

That is the manner in which I determine the defendant’s exceptions in the instant case.

[9] I proceed now to determine the first exception (exception (1)) which is framed in the following terms:

(1) The claim by the Plaintiff for payment to himself of a sum in respect of medical expenses undertaken by the Defendant to be paid in terms of section 10 (5) (a) of the Motor Vehicle Accidents Fund Act 2001 is bad in law as the legislation only allows the Defendant to undertake to make such a payment to the provider for the goods supplied or the services rendered.

[10] I pass to test the basis of the defendant’s exception (1) which is undoubtedly based on the interpretation and application of the relevant provisions of s. 10 of the MVA Fund Act.

[11] In my opinion, there is not even a modicum of merit in the defendant’s exception (1). This objection falls to be rejected for the following reasons. First, the fact that a plaintiff puts a particular interpretation on a statutory provision that is different from the interpretation that the defendant puts on that statutory provision, and the plaintiff makes a claim based on his or her interpretation of the said provision, cannot render the plaintiff’s claim excipiable. In this regard, I do not see on what ground the plaintiff’s pleading can be declared bad in law. It has been said that exception may be taken when the defect in the pleadings appears ex facie the pleadings. (Van Winsen, et al. supra at p. 492, and the cases there cited)

[12] In the instant case, I do not find any defect – ex facie or otherwise – in the plaintiff’s pleadings, as claimed by the defendant in its exception (1). It would have been a different matter if the defendant’s objection is that there is no provision in the MVA Fund Act on which the plaintiff can possibly base his claim, or that the plaintiff’s claim is based on a provision of a statute other than the MVA Fund Act. Second, s. 10 (5) (a) of the MVA Fund Act, which Mr. Ueitele is so much enamoured with, does not, as Mr. Dicks, counsel for the plaintiff, correctly submitted, restrict the Fund to only one course of action in terms of the said s. 10 (5) (a) of the MVA Fund. That the defendant has more than one option under s. 10 (5) (a) is clear from the words of the paragraph, and what is more, the defendant does not deny that it has followed another option of making payment in the past directly to the plaintiff, and not to the service provider, the Roman Catholic Hospital (‘the Hospital’).

[13] This conclusion, with the greatest deference, makes the submission by Mr. Ueitele fallacious, untenable and, above all, inconsequential; that is, the submission ‘that clearly, in terms of section 10 (5) (a) of the Act, the Fund can only give an undertaking to the provider of medical services (and not to the injured person), and in terms of any such undertaking can only make payment after the services have been rendered obviously to the person to whom the undertaking has been given).’ The submission adds no weight at all; it is petitio principii. Of course, if the defendant makes an undertaking to X Hospital, it can only make payment to X Hospital; but that is not the issue. What is in issue is that the plaintiff alleges that s. 10 (5) (a) does not say that the Fund must always, no matter what the circumstances are, only make an undertaking to a service provider, keeping the claimant (patient) completely out of the equation. As I have held above, such contention is not in accordance with the statutory provision nor the defendant’s own practice, at least as respects the plaintiff, as I have mentioned previously.

[14] Thus, in this regard, as I have already mentioned, s. 10 (5) (a) and (7) are significant and apropos of the point under consideration. Section 10 provides:

(5) Where a claim for payment of compensation under subsection (1) is made and the claim includes a claim for –

(a) costs for future accommodation in a hospital or nursing home, future medical treatment, the provision of future medical services or the provision in future of goods, the Fund may give a written undertaking to the provider of services or goods to the effect that the services or goods will be paid for from the Fund and thereafter pay for the provided costs of the services or goods after the services have been rendered or the goods have been supplied; …

(7) Where necessary the Fund may, in respect of medical costs, loss of income or loss of support, make an advance payment to a claimant.

[15] Accordingly, if s. 10 of the MVA Act is interpreted and applied in a way as would give meaning to the intertextuality of the various provisions of that section, particularly s. 10 (5) (a) and (7) of the Act, it seems to me clear that the defendant’s contention that the claimant cannot be paid any compensation and that payment of any such amount can be paid to only the service provider has, with the greatest deference, no basis in law; that is, the MVA Act.

[16] Mr. Ueitele submitted further that as ‘a practical matter those in Namibia providing medical services would rely on the undertaking from the Fund as being in effect a guarantee that they would be paid for medical services rendered to persons injured in motor vehicle accidents.’ The submission is, with respect, irrelevant because it is presumptuous: it presumes that which the plaintiff in his pleadings alleges, namely, that the defendant did not make any undertaking to the Hospital as it should have done in terms of the settlement agreement and further that the defendant failed or refused to make payment timeously to the Hospital and so therefore the plaintiff was obliged to make payment personally to the Hospital. In the face of these allegations, the issue of undertaking and guarantee does not arise.

[17] The aforegoing conclusions also affect the defendant’s third exception (‘exception (3)’), which is framed in the following terms:

The claim by the plaintiff is bad in fact and discloses no sustainable cause of action as no allegation is made that any sum is in fact due to the Roman Catholic Hospital (the Hospital) in respect of any medical goods supplied or medial services rendered to the Plaintiff on 17 April 2007.

[18] The defendant avers that in terms of the settlement agreement it made an undertaking to the service provider being the Hospital. For this averment the defendant relies on a letter, dated 23 January 2007, from the defendant to the Hospital. The heading of the said letter is ‘Treatment for MVA patient’. It is not in dispute that the patient is the plaintiff. What is in dispute is this: the plaintiff alleges that the defendant breached a relevant provision of the settlement agreement because the defendant did not make an undertaking to the Hospital and did not make payment timeously to the Hospital and as a result of the defendant having failed or neglected to pay within a reasonable time an amount of N$101,275.51 which was there and then due to the Hospital, the plaintiff on or about 30 May 2007 was obliged to pay the account with the Hospital. Thus, the plaintiff alleges that in breach of the settlement agreement the defendant did not make an undertaking to the Hospital and did not make payment timeously to the Hospital and so the plaintiff was obliged to make payment to the Hospital. I do not find that the facts the plaintiff has pleaded thereanent his claim are plainly false and so clearly baseless that they cannot possibly be proved at the trial (Van Winsen, et al. supra at p. 493, and the case there cited).

[19] It is accordingly my view that the plaintiff has pleaded the aforementioned facts; and the facts pleaded disclose a cause of action, and on the authorities outlined previously, for the purposes of the exception the facts pleaded must be accepted as correct. (Marney v Watson and another supra) Whether the plaintiff can prove the allegations is not a matter for me to decide as I determine the exceptions, which is my present burden. (Joseph Frans Kuiiri v Bulk Trade (Pty) Ltd and others supra at p. 19)

[20] From all the aforegoing reasoning and conclusions, I find that the defendant has not satisfied the Court that on all reasonable constructions of the plaintiff’s amended pleadings ‘no cause of action is or can be disclosed (Namibia Breweries Ltd v Seelenbinder, Henning & Partners 2002 NR 155 at 159A).’ It follows indubitably that the exceptions taken by the defendant must fail.

[21] At the commencement of the proceedings I heard arguments respecting Mr. Ueitele’s Notice of Motion in which he moved the Court to condone his late filing of his heads of argument. Mr. Dicks submitted that the application was hopelessly late because his instructing counsel received the Notice of Motion less than an hour before the hearing of the application. He, therefore, urged the Court to dismiss the condonation application with costs.

[22] In such condonation application it is trite rule of practice that the applicant (counsel of the defendant in casu) must give an acceptable explanation for his or her default. In these proceedings, the two main reasons in counsel’s affidavit are that, counsel says, he travelled to ‘rural Namibia’ on an ‘unscheduled’ Electoral Commission business and he had no access to email facilities, and furthermore, it was only on 20 October 2009 that he was able to ‘locate the Senior Counsel’ to prepare the heads of argument. I think these are not reasons; they are excuses, as I shall demonstrate shortly.

[23] As far back as 23 July 2008, counsel knew what objections he had raised against the plaintiff’s pleadings and the grounds therefor. Counsel does not say why he did not instruct senior counsel to draft the heads of arguments for more than 12 months. In any case, the matter was on 6 July 2009 set down for hearing on 2 November 2009, and the defendant’s counsel filed his heads as late as 27 October 2009. For some 12 months prior to 6 July 2009, when the matter was set down, counsel was certain that the defendant’s objections to the plaintiff’s pleadings were alive and on the cards, but for reasons counsel does not tell the Court, counsel decided to wait until the first week of October 2009 to instruct the Senior Counsel to prepare the heads of argument, and he could ‘only locate the Senior Counsel on 25 October 2009’. He or she must be a very illusive Senior Counsel, indeed, if I may add in parentheses.

[24] Be that as it may, in all this, it is significant to note that the Notice of Motion was not filed with the Court. It was just placed on the court file on the Friday next preceding the date of the hearing of the matter. I heard arguments on the exceptions and I have referred to the heads of argument of both counsel, and so it would have served no useful purpose to strike off Mr. Ueitele’s heads, as Mr. Dicks invited me to do, but I think this is a proper case where it is just and fair that I evoke subparagraph (6), read with subparagraph (7), of paragraph 20 of the CPD and mulct the defendant with costs occasioned by the hearing of the condonation application, even though condonation application was successful.

[25] The order of the Court is that –

(1) The defendant’s counsel’s late filing of his heads of argument is condoned, and further that the defendant must pay the plaintiff’s costs occasioned by the hearing of the defendant’s counsel’s condonation application; such costs to include the costs consequent upon the employment of instructed counsel.

(2) The defendant’s exceptions are dismissed with costs; such costs to include the costs consequent upon the employment of instructed counsel.

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PARKER, J

ON BEHALF OF THE PLAINTIFF: Adv. G Dicks

Instructed by: LorentzAngula Inc.

ON BEHALF OF THE DEFENDANT: Mr. S Ueitele

Instructed by: Ueitele & Hans

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