Macanda v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Govindjee J
• Judgment Date: 16 August 2023
• Citation: 2023 JDR 3141 (ECB)
• Hearing Date: 25 July 2023
• Docket Number: 36/2022
• Court: Eastern Cape Division

Govindjee J:

[1]

The applicant sought the following relief on motion:

‘1.

That the Respondent is found to be in breach of its statutory and constitutional obligations by failing to give effect to the order of the above honourable court dated 9th February 2023 by the honourable Mr Justice Potgieter;

2.

That the Respondent’s non-compliance with the court order dated 9th February 2023 by the honourable Mr Justice Potgieter is a violation of the Respondent’s constitutional and statutory duties;

2023 JDR 3141 p2

Govindjee J

3.

That the Respondent is directed to take all the administrative and other necessary steps to ensure that it complies with the court order dated the 9th February 2023 by the honourable Mr Justice Potgieter within 10 days from the date of this order;

4.

That if the Respondent should fail to comply with the order dated the 9th February 2023 by the honourable Mr Justice Potgieter within 10 days from the date of this order, the Applicant is granted leave, on the papers duly amplified, for a further hearing and determination of contempt of court proceedings against the responsible claims handler and such further relief as the Applicant might seek;

5.

That Mr Gona and / or Mr Mlinganiso, or any other legal representatives of the Respondent at the offices of the State attorney, should personally serve a copy of this court order to the responsible claims handler personally;

6.

That Mr Gona and / or Mr Mlinganiso, or any other legal representatives of the Respondent at the offices of the State attorney, should file an affidavit setting out compliance with this court order within five [days] after serving this court order personally to the claims handler;

7.

That the Respondent is ordered to pay the costs of this application on an attorney and own client scale.’

[2]

The application, which was unopposed, was dismissed with no order as to costs. The reasons for that decision follow.

[3]

Potgieter J issued the following order on 9 February 2023 (‘the February Order’):

‘1.

The matter is postponed sine die;

2.

The Defendant is ordered to pay the Plaintiff’s costs occasioned by the postponement with interest, on appropriate scale 14 days from the date of allocutur to date of payment, which costs are to include: -

2023 JDR 3141 p3

Govindjee J

2.1

The fees of counsel, inclusive of counsel’s full day fees for attending trial on Monday the 6th and Thursday the 9th February 2023, including counsel’s fees and disbursements for attending consultations with the Plaintiff’s expert witnesses, where applicable;

2.2

The reasonable qualifying expenses of obtaining medico-legal (expert) reports which have been used to date and the reasonable preparation, qualification and reservation fees of Professor Maqungo, the Plaintiff’s Orthopaedic Surgeon;

3.

The Defendant is ordered to make a decision whether or not the Plaintiff’s injuries were correctly assessed as serious in terms of the method provided in terms of Regulations 3(3)(c) or 3(3)(d) of the Road Accident Fund Regulations, 2008 (Regulation 31249) within 5 days from the date of the order.’

[4]

The applicant’s attorney deposed to an affidavit explaining the relief sought and setting out background facts to a motor vehicle collision which occurred on 22 December 2020. The deponent reiterated the terms of the February order, highlighting the respondent’s resultant obligation to make a decision as to seriousness, and that it had failed to do so at the time of the application. The importance of that decision for the applicant’s claim for general damages, and the process to be followed to arrive at a decision on the part of the respondent, was explained. In fact, much of the founding affidavit does nothing more than explain the applicable statutory, regulatory and administrative approach to serious injuries caused by motor vehicle accidents, containing largely irrelevant material considering the order already...