Govender v Moodley

• Jurisdiction: South Africa
• Judge: Vahed J
• Judgment Date: 22 January 2014
• Docket Number: 315/2005
• Hearing Date: 04 September 2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Vahed J:

[1]

The actions under case number 315/2005 ("the first action") and case number 8682/2008 ("the second action") were consolidated and the trial commenced before me on 4 September 2013. When the matter was called I was advised by counsel that during the current tranche of the trial I was only required to determine

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Vahed J:

second defendant's first special plea, with all other issues to stand over, if needs be, for later determination. I might indicate that the second defendant also raised a second dilatory special plea relating to the determination of the plaintiff's injuries as serious. Although that second special plea was discussed only briefly, I was not required to make any determination thereon. The special plea that required determination related to whether the action against the second defendant had been statutorily barred for want of compliance by the plaintiff with section 2(4)(a) of the Apportionment of Damages Act, 34 of 1956. Both the actions prior to consolidation, and the consolidated action, have a long, detailed and sorry history, the minutiae of which I considered to be highly relevant to the determination of the special plea in question. It is necessary for me to recount that history.

[2]

The plaintiff, a practising attorney, was during 2003 still a law student. On 29 June 2003 he was a passenger in a motor vehicle driven by the first defendant. A collision occurred allegedly resulting in the plaintiff sustaining serious bodily injury and causing pain and suffering and other sequelae.

[3]

In the first action the plaintiff issued summons against the first defendant during January 2005 claiming damages of approximately R6,8 million. In his particulars of claim the plaintiff referred to the second defendant (although it was not a party to this action) alleging that the liability of the second defendant was limited to the sum of R25,000 in terms of the provisions of section 18(1)(b) of the Road Accident Fund Act, 56 of 1996 and that accordingly the first defendant was liable to compensate him for such damages that exceeded that amount.

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Vahed J:

[4]

On 21 December 2005 the first defendant delivered his plea in the first action. In that plea he admitted the identities of the parties, the particulars of the collision and that he was the driver of the vehicle, and his failure to compensate the plaintiff. He went on to put the plaintiff to the proof of the remaining allegations, but denied that he had been negligent. In the alternative, and upon proof of his negligence, the first defendant went on to plead that in terms of a policy of insurance with Santam Limited ("Santam") he was indemnified for any liability for damages up to the extent of R3 million. A copy of the policy of insurance was annexed to his plea.

[5]

During February 2006, in terms of a notice dated 21 July 2005, the first defendant issued a Third Party Notice to Santam claiming the indemnification referred to in his plea. It appears that nothing further came of this Third Party Notice because Santam's attorneys then took over the conduct of the first defendant's defence by subrogation.

[6]

The first action was set down for trial on 14 February 2007. The matter did not proceed on that day because an order was taken by consent declaring the first defendant to be liable to compensate the plaintiff for 100% of the plaintiff's proved or agreed damages. The matter was postponed for the later determination of quantum.

[7]

Prior to quantum being determined in the first action, and apparently because his alleged damages far exceeded the upper limit of Santam's indemnification of the first defendant's liability, the plaintiff instituted the second action against the second defendant only. The summons in the second action was issued on 24 June 2008. In the second action the plaintiff alleged that another vehicle was also involved in the collision (in addition to the vehicle driven by the first

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Vahed J:

defendant) and attributed negligence to the driver of that vehicle as well. Accordingly, he claimed damages from the second defendant in an amount similar to that claimed in the first action, and in the alternative and in the event of the first defendant being found solely negligent, he claimed damages confined to the capped amount of R25,000.

[8]

On 15 August 2008 the second defendant delivered its plea in the second action. That plea was nothing more than a bare denial.

[9]

On 27 November 2008 second defendant gave notice in the second action of an offer in full and final settlement of the plaintiff's claim against it of payment of the sum of R 25,000 plus costs on the appropriate magistrate's court scale.

[10]

The first action was set down for trial on quantum on 24 July 2008 but was removed from the roll.

[11]

The second action was set down for trial on 8 December 2008. The matter served before Van Zÿl J on that day and in discussion in Chambers, when he was advised of the existence and status of the first action, and when counsel who then appeared for the second defendant raised the question of the non-joinder of the first defendant in the second action, it transpired that joinder appeared to the learned judge to be necessary and the matter was accordingly adjourned.

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Vahed J:

[12]

On 7 October 2009 the plaintiff applied for the two actions to be consolidated. On 22 October 2009 the order consolidating the two actions was granted by consent. It is necessary to repeat the terms of that order in full:

'1.

It be hereby ordered that the actions in Case No. 315/05 between Yugusen Govender as Plaintiff and Cleophas Shane Moodley as Defendant and Case No. 8682/08 between Yugusen Govender as Plaintiff and Road Accident Fund as Defendant be consolidated and hereafter proceed as one action with Cleophas Shane Moodley as First Defendant and the Road Accident Fund as Second Defendant.

2.

In as much as it was ordered on 14 February 2007 that Cleophas Shane Moodley was declared liable to compensate the Plaintiff for one hundred percent of his proved or agreed damages including general damages suffered as a result of injuries sustained by him in a collision which occurred at Pietermaritzburg on 29 June 2003 and the matter was postponed to a date to be arranged for the determination of the quantum of the Plaintiff's claim

2.1

The issue of the liability of the Road Accident Fund to compensate the Plaintiff for damages be determined before the determination of the quantum of the Plaintiff's damages.

2.2

That Cleophas Shane Moodley be given notice of any hearing or [sic] the determination of the liability of the Road Accident Fund as aforesaid.

2.3

That if the said Moodley wishes to contend that as between the said Moodley and the Road Accident Fund the damages payable should be...