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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

 

Case Number: 34591/20

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED: NO

30/10/2024

 

In the matter between:

 

MOSES, KIM CANDICE	Plaintiff
and
ROAD ACCIDENT FUND	Defendant

 

This matter was heard in open court but Judgment was delivered electronically by uploading it onto the electronic file of the matter on Caselines. The judgment was submitted to the representatives of the parties via uploading it onto Caselines. The date of uploading onto Caselines is deemed the date of the judgment.

 

JUDGMENT

 

PIENAAR (AJ)

 

Introduction

 

1.   This matter was on the default judgment roll of 3 September 2024. When the matter was called, counsel for the plaintiff argued that the defendant entered an appearance to defend on 2 September 2024. Considering this, counsel for the plaintiff argued that the defendant must apply for condonation for the late filing of appearance to defend and further provide reasons why the defendant cannot make an offer in this matter.

 

2.   Mrs Davis, on behalf of the defendant, argued that they are busy looking into the matter with the aim of making an offer to the plaintiff . Further, that the defendant will file an explanation why the notice of intention to defend was so far out of time and why the court should grant the defendant indulgence to have the matter postponed.

 

3.   Knowing that there was a notice of intention to defend, I deemed it in the interest of justice to grant the defendant the opportunity to stand the matter down until Friday, 6 September 2024 to prepare and bring an application for condonation or to make a fair and reasonable offer for the plaintiff. On 6 September 2024 counsel for the plaintiff argued that the defendant filed no affidavit to explain its position and there was no appearance on behalf of the defendant.

 

4.   Counsel for the plaintiff persisted to proceed with this matter and referred the court to the judgment of Hugo v Road Accident Fund^[1] in arguing that the defendant failed to file an affidavit or to make an offer and therefore there was no appearance on behalf of the defendant.

 

5.   At the beginning of the trial, I informed counsel for the plaintiff that the judgment will be reserved.

 

Factual background

 

6.   The following procedural history of the matter is relevant. In summary, it is the following:

a.   5 October 2019: The accident in question occurred. The plaintiff was a passenger and sustained severe injuries.

b.   5 June 2020: The plaintiff’s claim was lodged with the defendant.

c.   2 November 2020: Summons was served on the defendant. No Notice of intention to defend has been served by the defendant. The dies for the delivery of the notice of intention to defend has expired.

d.   6 May 2024: Notice of application for a default judgment trial date in terms of the consolidated practice directives 1/2024 was filed.

e.   10 May 2024: The defendant was advised that as no notice to defend was filed, or any response from the defendant has come forth, the plaintiff would proceed with the necessary process to obtain judgment by default.

f.  24 June 2024: A notice of set down of the matter was served on the defendant.

 

7.   In summary, on 5 October 2019 at Golf Club Terrace, Florida, the plaintiff was a passenger in an accident which occurred between Toyota Yaris motor vehicle with registration Z[…] driven by K Hlagala and Hyundai sedan motor vehicle with registration K[…] driven by T Noble. In consequence of the accident, the plaintiff sustained multiple bodily injuries.

 

Evidence

 

8.   The plaintiff served the following reports in support of her claim for loss of earnings:

 

a.   Dr Gavin Fredericks: Medico legal report and RAF 4 assessment report

b.   Dr Leslie Berkowitz: Medico legal report and RAF 4 assessment report

c.   Dr Lewer-Allen: Medico legal report and RAF 4 assessment report

d.   Dr Mayaven Naidoo: Specialist Psychiatrist

e.   Dr Leslie Berkowitz: Plastic and Reconstructive Surgeon

f.  Dr Hans H Volkersz: Orthopaedic Surgeon

g.   Marilyn J Adan: Neuropsychologist

h.   Doran: Occupational Therapist

i.  Lewis Rosen: Industrial Psychologist

j.  Ivan Kramer: Consulting Actuaries

 

9.   All expert reports were served and filed timeously. In relation to the loss of earnings claim, the Occupational Therapist considered the hospital records, Orthopedic Surgeon report, RAF 4 Form, Neurosurgeon’s report, Specialist Psychiatrist report and Neuropsychologist report. It is accepted that her employability and resilience, and thus her competitiveness, have been compromised and will probably contribute to early retirement.

 

10.  Following the Occupational Therapist report, the plaintiff was referred to an Industrial Psychologist. It was noted that the plaintiff was employed as a clerk at MLC Construction Costs Consultations. She worked successfully in this position, working her way up to bookkeeper. it was also stated that the plaintiff aspired to become a financial manager and had enrolled at Damelin for an ICB qualification. She had only two subjects to complete at the time of the accident.

 

11.  According to the actuary’s report set-out on an Unqualified Accountant at the C2 level, the plaintiff would have reached a career ceiling by age 50 earning at the C4 level. Having regard to the accident, the plaintiff completed a Diploma in 2023. She is now more vulnerable and an unequal competitor on the open labour market. She will retire at the age of 60.

 

Issues for determination

 

12.  Whether it is justifiable for the plaintiff proceed with default judgment, while the defendant has entered an appearance to defend in terms of Rule 19(5). In this regard, it should be noted that the Defendant entered an appearance to defend on 2nd September 2024 which was out of the required time. As a result, the defendant’s respresentative from the State Attorney’s office requested postponement of the matter to 6 September 2024 to allow the defendant to apply for condonation for the late filing of the notice to defend. However, On 6 September 2024 the State Attorney did not appear on behalf of the defendant.

 

13.  It is a matter of public knowledge that the Defendant is in charge of the public purse and should approach this type of litigation conscious of this fact. I am expressing my dissatisfaction with the State Attorney for failing to appear on 6 September 2024, providing no explanation for the late filing, and not presenting a possible settlement of the matter.

 

Legal Framework

 

14.  The provisions of Rule 31 (2) (a) provides that:

 

“Whenever in an action the claim or, if there is more than one claim, any of the claims is not for debt or liquidated demand and a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in sub-rule (4) for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as it deems fit”

 

15.  Rule 31(5)(a) provides that:

 

“Whenever a defendant is in default of delivery of notice of intention to defendant or of a plea, the Plaintiff, if he or she wishes to obtain judgment by default, shall where each of the claims if for a debt or liquidated demand, file with the Registrar a written application for judgment against such defendant not less than 5 days notice of his or her intention to apply for default judgment”

 

16.  Rule 6 (Applications) provides that:

 

“Save where proceedings by way of petition are prescribed by law, every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief”

 

17.  Rule 38 is only a procedural process for the trial.

 

18.  The point of concern is the lack of no notice of motion default application served on the defendant not less than five days before the hearing. The Plaintiff had more than enough time to served the notice of motion default judgment application on the defendant.

 

19.  In the matter of Desmond Vincent Hugo v RAF^[2] it stated at par 9.7 as follows: “The Plaintiff filed the application for default judgment on 20 February 2023”

 

20.  Also in the matter of Nathan v Road Accident Fund[3] it stated at par 5 [relevant chronology] as follows: “12 January 2023 - A substantive application for default judgment, together with all the expert reports on which the plaintiff sought to rely, was served on the RAF”

 

Conclusion

 

21.  It is trite that the Court has the inherent jurisdiction to regulate and protect its own proceedings. In the light of this, there is no proper application for default judgment served on the defendant (RAF).

 

Order:

 

22.  In the result, I make the following order:

1.  The application for default judgment is refused.

2.  There is no order as to costs.

 

M PIENAAR AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, JOHANNESBURG

 

Appearances:

For the Applicant: Adv Ian Zidel SC instructed by De Broglio Attorneys

For the Defendant: Office of the State Attorney (on 3 September 2024)

Date of Hearing: 3 and 6 September 2024

Date of Judgement: 27 October 2024

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