South Africa: Eastern Cape High Court, Grahamstown

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[2020] ZAECGHC 106
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Felikisi v Road Accident Fund (244/19) [2020] ZAECGHC 106 (22 September 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No.: 244/19
Date Heard: 25 August 2020
Date Delivered: 22 September 2020
In the matter between:
Z FELIKISI Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
KROONAJ:
I. The Plaintiff issued summons on 31 January 2019 in a motor vehicle accident claim and in terms of which damages in a round figure of R1 500 000.00 (one million five hundred thousand Rand) were claimed.
2. The claim concerns an accident which allegedly occurred on or about 21 April 2007 and, although not entirely clear, appears to comprise a claim for loss of support by the Plaintiff flowing from the death of one Mluleki Lucky Pini.
3. No material allegations of fact are made in the Particulars of Claim to substantiate the contention that the deceased was legally obliged to support the Plaintiff The Particulars of Claim simply record:
"6. The Plaintiff at all material time [sic] had no income and could have depended on the deceased income and had the deceased not been killed, he would have been obliged to support the Plaintiff and would have been able to do so."
4. Furthermore, as to the damages claimed, other than to record that there has been a demand for the payment of the sum claimed, there are no allegations in the body of the Particulars of Claim in respect of the R1.5 million claimed.
5. A Plea was delivered on behalf of the Defendant by its erstwhile legal representatives in terms of which the Defendant placed in issue both its liability to pay damages as well as the amount of damages claimed. The Defendant is however no longer legally represented.
6. The Plaintiff contends that the parties have agreed that the Plaintiff may take an order by consent for the full amount claimed, namely RI .5 million.
7. The Plaintiff relies on an exchange of e-mails between the attorney of the Plaintiff; Mr Akhona Pele, and Ms Xolisa Maya who is apparently a representative of the Fund.
8. On the strength of this e-mail exchange, an attempt was made by the Plaintiff to secure an order by way of a Chamber Book Application on 19 August 2020.
9. On 20 August 2020 Lowe J refused to entertain the application by way of the Chamber Book procedure and referred the matter to Open Court.
10. The Court has two concerns about granting the order requested.
11. Firstly, the settlement is not so much a settlement or a compromise as it is a capitulation. In terms of the alleged agreement reached between the parties the Defendant will pay the Plaintiffs entire claim to the last cent and there is no explanation as to how the Defendant satisfied itself that the amount claimed was due to the Plaintiff.
12. Secondly, the Plaintiff is requesting the Court to grant an order of some magnitude and which will result in the expenditure of substantial public funds on the strength of an informal e-mail exchange.
13. In Sibongiseni Mzayiya v Road Accident Fund[1] the Court, having raised and discussed the challenges facing the Defendant currently given, inter alia, the implementation of a new litigation model which has resulted in litigation being conducted by the Defendant in-house and without the assistance of external legal practitioners as well as the acknowledged widespread corruption on both the part of some of the employees of the Defendant as well as some legal representatives who engage with the Fund, expressed itself as follows:
"[107] ... [W]hen a Court adjudicates on litigation involving the Defendant and in particular when it is called upon to exercise its discretion whether to grant an application for default judgment against the Defendant in a large sum, it must bear in mind the current state of the Defendant. It may be that, depending on the facts of the case, the Court is required to insist on additional measures and safeguards before such an order is granted. in the case of a default order this may include insisting that oral evidence is led and, in the case of an alleged agreement, that an official from the Defendant with the requisite authority confirm the alleged agreement or order by consent, preferably by way of affidavit or, better still. By being present at Court. As a minimum I would have thought that there should be a signed agreement and that, without wishing to belabour the point, an exchange of informal emails is not sufficient given the large sums of public funds involved."
(own underlining)
14. At the hearing, and by way of opening remark, Mr Mili, who appeared on behalf of the Plaintiff, recorded that, unless the Court was prepared to grant an order on the papers, he did not intend to move the application because it had not been served on the Defendant.
15. The proposal that the application be served on the Defendant is not easily reconcilable with the position that an agreement had been reached between the parties because if an agreement had been reached then such a step would be unnecessary.
16. On the other hand, if there is no consensus then similarly the service of the application on the Defendant would not take the matter any further. A failure by the Defendant to respond to the application would not constitute proof of consent.
17. Having considered the facts of this case, it is the view of the Court that this is a matter where it should order that further steps be taken before an order by consent is granted.
18. In all the circumstances, the following order is issued:
18.1. This matter is postponed sine die.
18.2. Should the Plaintiff persist with a prayer that an order be granted by consent then such order :
18.2.1. is to be sought in the presence of a duly authorised representative of the Defendant; or, with the leave of the Court
18.2.2. is to be sought on the basis of an affidavit deposed to by a duly authorised representative of the Defendant confirming that an agreement has been reached with the Plaintiff in respect of his claim, the terms of such agreement as well as an explanation as to the basis for settling the entire claim of R1.5 million having due regard to the concerns raised in this Judgment.
19. This Judgment is to be annexed to any affidavit furnished by the Defendant and is to be entered into the Record of any future proceedings.
20. The Registrar is directed to transmit a copy of this Judgment to the Defendant and to obtain an acknowledgement of receipt from it and to place it in the Court file.
PN KROON
ACTING JUDGE OF THE HIGH COURT
Appearance:
For Plaintiff: Mr Mili instructed by Akhona Pele Attorneys
[1] Judgment handed down in the East London Circuit Court Local Division on Thursday, 17 September 2020.