Hlatshwayo and another v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Legodi JP, Mphahlele DJP and Mashile J |
| Judgment Date | 24 January 2023 |
| Citation | 2023 JDR 0249 (MN) |
| Docket Number | 3242/2019 |
| Hearing Date | 21 September 2022 |
| Court | Mpumalanga Division (Main Seat) |
Legodi JP (with Mphahlele DJP and Mashile J concurring):
At the hearing of the matter, the court shall consider whether or not it is appropriate to make a special order as to costs against a party or such party's attorney, because such party or party's attorney-(i) did not attend a pre-trial conference; or (ii) failed to a material degree to promote the effective disposal of the litigation [1] . The case management judge may at a case management conference, make any order as to costs, including an order de bonis propriis against the parties' legal representatives or any other person whose conduct has conduced unreasonably to frustrate the objective of the judicial case management process [2] . Any failure by a party to adhere to the principles and requirements of rule 37A may be penalised by way of an adverse costs order [3] .
Rule 37A(12) (h) and (16) referred to above should be read in the context of sub-rule(2)(a) of rule 37A which provides that case management through judicial intervention shall be used in the interest of justice to alleviate congested trial rolls and to address the problems which cause delays in the finalisation of cases. Furthermore, rule 37A(12)(h) and (16) must be read with sub-rule (2)(c) which provides that case management through judicial intervention shall be construed and applied in accordance with the principle that notwithstanding the provisions herein providing for judicial case management, the primary responsibility remains with the parties and their legal representatives to prepare properly, comply with all rules of court and act professionally in expediting the matters towards trial and adjudication. The drafters of rule 37A(12)(h) and (16) read with rule 37(9)(a) were clearly deliberate and resolute in ensuring that the courts do not find themselves helpless when the parties, their lawyers and or any other person dictates litigation at a snail pace without serious consequences. The drafters of these rules must have intended to dispel the notion that courts have no authority or power to dictate the pace of litigation. The two cases of Messrs Elvis Dumisani Hlatswayo and Mzwandile Masilela separately instituted against the Road Accident Fund under different case numbers, were settled on the
2023 JDR 0249 p3
Legodi JP (with Mphahlele DJP and Mashile J concurring)
date of trial or partly settled close to the date of trial contrary to Forms A and A3 of the Practice Directive of this Division. In paragraph 9 of Form A is recorded that 'failure to comply with any of the case management directives herein, shall invite summary inquiry with regards to costs as contemplated in sub-rules 12(h) and 16 of Rule 37A'.
Form A3 is used as a trial readiness certification Form. In paragraph 5 thereof is recorded that "should the matter be settled on the date of trial, parties run the risk of punitive costs order / or forfeiture of a day fee, against any person responsible for the late settlement of the matter and any such costs order may include payment out of own pocket by whoever is responsible for the late settlement including claim handlers and or attorneys for the parties". Paragraph 14 of the Practice Directive deals with settlements on the dates of trial or hearing. Paragraph 14.1 thereof provides that there shall be no settlement on the date of trial. In paragraph 14.2 is recorded that any settlement on a date of trial or hearing is tantamount to failure to a material degree to promote the effective disposal of the matter as contemplated in rule 37(9)(a)(i) and (ii). In paragraph 14.3 of the Practice Directive is recorded that many matters against the Road Accident Fund are settled on the dates of trial and at a huge legal expense to the public purse and thus the need for the directive in paragraph 14.1. In paragraph 14.5 of the Practice Directive is recorded that settlements on the dates of trial will prompt an enquiry as to costs so occasioned by settlement on the date of trial and that the defaulting party may be ordered to pay the costs of litigation connected to or occasioned by the late settlement on a punitive scale and or out of own pocket, including forfeiture of appearance or day fee. I now turn to deal briefly with the background facts of each of the two cases.
Brief background facts in Masilela case
On 11 January 2018 the plaintiff's attorneys lodged the claim with the Road Accident Fund. On 12 January 2018 the Fund acknowledged with no objection receipt of the lodgement of the claim and registered the claim under number 6901/12588297/202/0. It did so without lodging an objection. It does not appear that anything was done by the Road Accident Fund since the claim was so lodged.
2023 JDR 0249 p4
Legodi JP (with Mphahlele DJP and Mashile J concurring)
On 22 May 2019 the Road Accident Fund was served with the summons followed by appearance to defend delivered by Attorneys Tau Phalane on behalf of the defendant (the Fund). In a plea dated 17 July 2019 the defendant also included a special plea on the basis that the plaintiff has not submitted a "serious Injury Assessment Report". Despite notice for pre-trial and or case management conferences been served, the Fund refused, neglected and or failed to participate in such conferences. Resultantly, the matter was laid before the judicial case management judge in accordance with Division's applicable practice directive. On 25 January 2022 the case was certified trial ready without the defendant participating and was accordingly enrolled for trial on 14 March 2022. Notice of set down was served on 3 February 2022.
After 3 February 2022 the matter was allocated to a claim handler, namely Mr Keith Wakeford. Upon allocation, he asked for the physical file and upon receipt thereof, he allegedly 'promptly begun assessing the matter on the available information'. He then requested more information from the plaintiff's attorneys. He received further supporting documents on 23 February 2022. He then continued to assess the information. He noted that the plaintiff's claim for loss of earnings was not competent. According to Mr Wakeford, further information and investigation were required to adequately consider that portion of the plaintiff's claim before any decision or settlement could be made.
On 6 March 2022 Mr Wakeford requested copies of other further lodgement documentation and enquired also whether plaintiff attorneys had dealt with the issues raised in respect of forensic accountant's report. On 8 March 2022 the plaintiff's attorney directed an email to Mr Wakeford. The plaintiff's attorneys requested that the matter be partially settled and that the plaintiff's claim for loss of earnings be postponed sine die for the outstanding information, documentation and the addendum report to be filed. Mr Wakeford then obtained a mandate in respect of merits, future medical expenses and general damages in respect of the plaintiff's claim. A tender was then made on 9 March 2022 which offer was accepted on the same day.
2023 JDR 0249 p5
Legodi JP (with Mphahlele DJP and Mashile J concurring)
The explanation given in above is contained in an affidavit deposed to on 22 March 2022 by Mr Wakeford. This was in a response to a directive issued on 15 March 2022 by this court which directive reads as follows:
The enquiry regarding the costs occasioned by partial settlement of the matter and postponement of the remaining unresolved head of damages is hereby postponed pending the filing of the affidavits and written heads of argument to deal with the following:
The defendant (RAF) and the claim handlers who dealt with this matter as per the correspondence hereto marked "A" is hereby ordered to file affidavits explaining why they did not deal with this matter expeditiously to avoid partial settlement and postponement on or close to the date of the trial of 14 March 2022;
The plaintiff's attorneys to file an affidavit explaining the reliability of the email addresses used on the communication as per Annexure "A" above and also explain why they did not proceed with trial on a remaining head of damages which has not been resolved regard being heard to paragraph 15 of the Practice Directive dated 9 January 2020 read together with the consolidated Covid-19 directive;
Furthermore, the defendant and the claim handlers are ordered to file affidavits explaining why they did not cooperate in having a meaningful pre-trial conference with the plaintiff attorneys and why they did nothing about the judicial case management of 25 January 2022 and why they did not attend the court on 14 March 2022.
The affidavits referred to in paragraphs 1.1 and 12 above shall be filed with the Registrar of this court by not later than 12h00 on Tuesday 22 March 2022 and shall be filed by email;
The parties are hereby directed to file written heads of argument should they so wish by not later than 12h00 on Thursday 24 March 2022;
This court order shall be sent by the Registrar of this court to the defendant's claim handlers as per the email addresses appearing in annexure "A" and also brought to the attention of Mr. Justice Mdluli and Chief Executive Offer of Road Accident Fund and that they should ensure that the court order herein is complied with;
2023 JDR 0249 p6
Legodi JP (with Mphahlele DJP and Mashile J concurring)
The costs relating to the proceedings of today are reserved and in the affidavits, the parties should explain why a punitive costs order, forfeiture and payment out of own pocket should not be made".
Worried by the lack of information regarding the response by Ms Mogorosi and Mr Wakeford, a further directive was issued as follows:
Further enquiry herein is postponed to 9 May 2022 for hearing in person or virtually as the parties may decide and such election to be indicated by...
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