Oosthuysen v Oosthuysen

• Jurisdiction: South Africa
• Judge: Musi J
• Judgment Date: 13 September 2007
• Docket Number: 1386/2007
• Court: Orange Free State Provincial Division
• Hearing Date: 30 August 2007
• Citation: 2008 JDR 1069 (O)

H.M. Musi, J

[1]

This is an application based on section 3 of the Interim Rationalisation of Jurisdiction of High Courts Act, No. 41 of 2001, for transfer of the action instituted by the applicants against the first respondent in this Court to the Transvaal Provincial Division of the High Court. The background to the matter is set out hereunder.

[2]

On 12 April 2002 the second applicant was a passenger in a motor vehicle driven by the first respondent when the first respondent's motor vehicle became involved in a collision with another motor vehicle on the outskirts of Bloemfontein. The second applicant sustained severe injuries in the accident as a result of which she became a paraplegic. She and her mother, the first applicant, who had apparently expended money on the second applicant's medical treatment, instituted action in the TPD against the Road Accident Fund, the second respondent, for damages on the basis of the alleged negligence of the driver of the motor vehicle that collided with the first respondent's motor vehicle and that of the driver of an unidentified motor vehicle that allegedly caused the first respondent's motor vehicle to collide with the other motor vehicle. No negligence on the

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part of the first respondent was averred and hence the first respondent was not joined in that action.

[3]

Subsequently and apparently on advice of their attorneys, the applicants instituted action in this Court against the first respondent for damages on the basis that there had been negligence on the part of the first respondent that causally contributed to the accident. The first respondent is defending the action and has filed a plea, attributing the accident solely to the negligence of the driver of the unidentified motor vehicle.

[4]

The applicants now seek to have the action instituted in this Court transferred to the TPD to be consolidated with the action instituted there. I shall henceforth refer to the first respondent simply as the respondent and to the second respondent as the RAF.

[5]

A number of considerations have been given for the need to transfer and consolidate the actions. It is contended inter alia that the convenience of the parties demands that this be done, given that the applicants are resident in Pretoria, the

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RAF has its principal place of business in Pretoria, the attorneys of both the applicants and the RAF are all in Pretoria and that the respondent is in fact represented by his insurer's attorneys, who are based in Johannesburg. It is also pointed out that there is a serious risk of duplication where the same witnesses, who will testify in the TPD case, may be required to again testify in this Court and that the costs would escalate. In argument, counsel for the applicants cited authority on the principles that would guide the court in considering this type of application. See inter alia MPOTSHA v ROAD ACCIDENT FUND AND ANOTHER 2000 (4) SA 696 (C); NONGOVU NO v ROAD ACCIDENT FUND 2007 (1) SA 59 (TPD).

[6]

In resisting the application the respondent denies that considerations of convenience favour transfer of the action. He says that the nature of the scene of the accident, which he has inspected, is such that the court hearing the matter would need to conduct an inspection in loco and that, coupled with the fact that he and the driver of the vehicle with which he collided are all in Bloemfontein, militates against transfer. However, the main ground upon which the

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respondent opposes the application is that there is an agreement concluded by the applicants and himself through their attorneys to the effect that the action in...