Road Accident Fund v Krawa

• Jurisdiction: South Africa
• Judge: Van Zyl J, Schoeman J and Dambuza J
• Judgment Date: 20 October 2011
• Citation: 2012 (2) SA 346 (ECG)
• Docket Number: CA 279/2010
• Hearing Date: 19 April 2011
• Counsel: AD Schoeman for the applicant (defendant). GM Budlender SC for the respondent (plaintiff).
• Court: Eastern Cape Division

Van Zyl J (Schoeman J and Dambuza J concurring): A

[1] This appeal essentially concerns the correctness and appositeness to the facts of the present matter of the statement in Tolstrup NO v Kwapa NO [1] that in an action for damages arising out of the driving of a motor vehicle —

'(a)n agreement or finding on liability (which is the equivalent of "the B merits") clearly disposes of everything bar the quantum of damages. . . . Quantum would not include a consideration of defences on the merits, be they defences raised by way of special plea, such as lack of jurisdiction, non locus standi, prescription or the like, or substantive defences such as absence of negligence, mistaken identity, contributory C negligence and so on, all of which relate to whether damages are payable. Once that is out of the way, the parties can concern themselves with how much is payable.' [2] [Emphasis original.]

[2] The background to the appeal may be sketched as follows: The appellant and the respondent in the appeal are respectively cited as the D defendant and the plaintiff in the proceedings in the court a quo. For purposes of convenience I intend to continue to refer to them as such. The defendant is the Road Accident Fund (the Fund), a juristic person created in terms of s 2 of the Road Accident Fund Act [3] (the Act) whose object it is to pay compensation in accordance with the provisions of the Act for loss or damage caused by the driving of motor vehicles. [4] The E plaintiff's wife, Ntombentsha Krawa, to whom I shall refer as 'the deceased', was killed in a motor vehicle accident during May 2004 when the vehicle in which she was a passenger left the road and overturned.

[3] The plaintiff thereafter instituted an action for damages against the defendant in terms of the Act in his personal and representative capacity F 'as the father and natural guardian of his and the deceased's minor children'. The death of the deceased is alleged to have occurred by reason of the negligence of the driver of the aforesaid motor vehicle. The plaintiff's action is what is sometimes referred to as a 'dependant's claim', that is, a claim for damages for loss of support which the plaintiff and his minor children are alleged to have suffered as a result of the G wrongful death of the deceased. [5]

[4] Save for admitting the name of the plaintiff, its own locus standi and that it failed to pay the amount claimed in the summons, the defendant placed all the remaining allegations in the plaintiff's particulars of claim H in issue by either denying them or putting the plaintiff to the proof thereof. After the close of pleadings and the allocation of a trial date by the registrar of the court, the defendant served a notice on the plaintiff's

Van Zyl J (Schoeman J and Dambuza J concurring)

A attorneys which, according to its heading, is purported to be an offer to settle as contemplated in rule 34(1) of the Uniform Rules of Court. It is stated therein that 'the defendant hereby gives notice that it concedes the merits in favour of the plaintiff and offers to pay the plaintiff whatever damages he has suffered in consequence of his injuries sustained in the B collision which occurred on 2 April 2004 to be proved in due course'.

[5] Not only was the acceptance of the offer in dispute, but on a reading of the notice it is evident that it contains a number of inaccuracies if one has regard to the nature of the plaintiff's claim and the allegations made by him in his particulars of claim in support thereof. The court a C quo quite correctly in my view regarded these matters as irrelevant to the issues which it was asked to decide. The reason is that the parties subsequently, and before the trial date, convened a pretrial conference in terms of rule 37. In the pretrial minute signed by the legal representatives of the respective parties, it is recorded that the 'defendant has formally conceded the merits in favour of the plaintiff and only the aspect of D quantum is to be determined'. This effectively superseded the defendant's earlier rule 34(1) notice and eliminated any uncertainties which may have been created by it. At the hearing of the matter in the court a quo and in this court, counsel representing the respective parties quite rightly did not attempt to argue otherwise.

E [6] On the appointed trial date the matter did not proceed and the matter was postponed sine die. Some time thereafter and before the matter was again set down for trial, the defendant delivered a notice of intention to amend its plea in terms of rule 28. The effect of the proposed amendments is to substitute what amounts to a non-admission with a F positive denial. [6] The first amendment in para 1 of the notice to amend constitutes a denial that the plaintiff is the natural father of one of the minor children, and consequently that he does not have locus standi to represent her in the action. The second amendment relates to what is contained in paras 5 to 8 of the plaintiff's particulars of claim. By reason of the fact that this proposed amendment is of particular importance in G deciding the issues raised in this appeal, I shall quote it in its entirety.

'2.

By the deletion of para 5 of defendant's plea and the substitution therefor with the following paragraph:

"5.

Ad para 5, 6, 7 & 8 thereof:

5.1

In respect of what is pleaded in para 6, defendant H denies:

5.1.1

that plaintiff received support from the deceased prior to and at the time of the deceased's death;

5.1.2

that the deceased was obliged to maintain and support the plaintiff prior to and at the time of the deceased's death;

5.1.3

I that the plaintiff was entitled to receive support, or would in fact have received support from the deceased, had she not died;

Van Zyl J (Schoeman J and Dambuza J concurring)

5.1.4

that the plaintiff was dependent on the A deceased.

5.2

Defendant pleads that the deceased and the plaintiff had separated and were living separate lives at the time of the death of the deceased.

5.3

Defendant reiterates that the minor child . . . is not a minor child of the plaintiff, and accordingly defendant B denies that plaintiff has locus standi. . . .

5.4

Each and every remaining or conflicting allegation contained in these paragraphs is denied as if specifically traversed.'''

[7] Paragraph 6 of the plaintiff's particulars of claim, to which reference is made in para 5.1 of the notice to amend, reads as follows: C

'As a result of the death of the deceased, the plaintiff and the deceased's aforesaid minor children have lost the support, which the deceased was obliged to give, and did give, and would, but for her death, have continued to give them, and upon which they were dependent.' D

[8] It is evident from a reading of these paragraphs that the defendant's intention with the proposed amendments is to place in issue the assertion that the deceased had a duty during her lifetime to provide support to the plaintiff, and that the plaintiff has a right to a claim for loss of support in his personal capacity. The denial in para 5.3 relating to the locus standi of the plaintiff is simply a repetition of what is already contained in E para 1 of the notice to amend, and is therefore superfluous.

[9] With reliance on the defendant's rule 34(1) offer to settle, the plaintiff in response filed a notice of objection on the limited basis that 'the defendant had formally conceded the merits of the plaintiff's claim'. F Nothing further transpired after the filing of the notice of objection until the matter was again set down for trial. Shortly before the trial date the defendant on notice made application for leave to amend its plea in accordance with the proposed amendments in its rule 28 notice. In support of the application an affidavit was deposed to by an attorney in the firm representing the defendant in the action. G

[10] In the affidavit the attorney stated that during preparation for trial a recommendation was made that an assessor be appointed to investigate the earnings of the plaintiff and the deceased and all other aspects necessary to determine the extent of the plaintiff's claim. When the assessor's report was received it became evident therefrom that the H plaintiff may not be the biological father of one of the minor children, that the plaintiff and the deceased were separated at the time of her death, and that the plaintiff did not receive any financial support from the deceased. The deponent contended that only the issue of negligence was conceded and no admissions were made in respect of quantum. It was further contended that the defendant did not in its plea admit the I locus standi of the plaintiff and that the onus remained on the plaintiff to prove that he has the necessary legal standing to represent the minor child concerned.

[11] The plaintiff chose not to respond to the affidavit put up in support of the application to amend the defendant's plea, electing instead to J

Van Zyl J (Schoeman J and Dambuza J concurring)

A simply make legal submissions at the hearing of the application. The argument put forward on behalf of the plaintiff in the court a quo was confined to the submission that the application for leave to amend should be dismissed, in that, when the defendant conceded the merits, everything, except for the quantum of the plaintiff's damages, was B disposed of. As in this court, the plaintiff placed reliance in this regard on the passage in the Tolstrup case quoted earlier, [7] the submission being that the proposed amendment related to 'whether' damages were payable, ie the merits of the plaintiff's claim, as opposed to quantum, where the only issue related to 'how much' was payable.

C [12] In Tolstrup the plaintiff in her representative capacity as the...