Road Accident Fund v Krawa

• Jurisdiction: South Africa
• Citation: 2012 (2) SA 346 (ECG)

Road Accident Fund v Krawa
2012 (2) SA 346 (ECG)

2012 (2) SA p346

Citation	2012 (2) SA 346 (ECG)
Case No	CA 279/2010
Court	Eastern Cape High Court, Grahamstown
Judge	Van Zyl J, Schoeman J and Dambuza J
Heard	April 19, 2011
Judgment	October 20, 2011
Counsel	AD Schoeman for the applicant (defendant).; GM Budlender SC for the respondent (plaintiff).

Flynote : Sleutelwoorde

B Practice — Trial — Separation of trial on issues — Separation of issues of quantum and merits in delictual action — Meaning of terms discussed in context of dependant's claim for loss of support — Defendant conceding merits — Whether plaintiff relieved from proving duty of support — Issue of existence of duty of support bearing on quantum of claim — Concession of merits by C defendant not relieving plaintiff of onus to prove existence of duty of support — Uniform Rules of Court, rule 33(1).

Motor vehicle accidents — Compensation — Claim against Road Accident Fund — Claim by dependant for loss of support — Separation of issues of quantum and merits and concession of merits — Whether claimant relieved D from proving duty of support — Issue of existence of duty of support bearing on quantum of claim — Concession of merits by RAF not relieving claimant of onus to prove existence of duty of support — Uniform Rules of Court, rule 33(1).

Headnote : Kopnota

The court had to decide, in a claim for damages for loss of support by a E dependant, whether, having conceded the merits of the plaintiff's claim at the pretrial conference, the defendant (the RAF) was nevertheless entitled, via an amendment to its plea, to dispute the assertion that the deceased had been under a duty to support to the plaintiff (Krawa). Krawa contended that since the proposed amendment related to whether damages were payable (ie the merits of the claim), and not to how much was payable (ie the F quantum of the claim), the RAF's application for amendment fell to be dismissed on the ground that the matter had been disposed by the RAF's concession of the merits. The court was accordingly called upon to decide whether the issues raised in the RAF's notice to amend formed part of the merits of Krawa's claim, and if so whether those issues were no longer in dispute by virtue of the concession made by the RAF at the pretrial G conference.

Held: In the procedural context of a separation of issues on the pleadings for trial the nature of those issues had in the first place to be determined from the pleadings. In this context the enquiry relating to quantum/damages was not always limited to a mere calculation, but could also — unless admitted by the defendant — include matters relevant to the existence of patrimonial loss or H damage. Since an essential feature of the dependant's action was his or her right to support by the deceased, a failure to prove a duty of support would mean a failure to prove patrimonial loss requiring compensation. The existence of a legal duty and concomitant right to support were therefore inextricably bound up with the question of damages, as the term was I understood in the context of a separation of issues for trial. In conceding the merits the RAF did not, given the ordinary meaning of the term in this context, concede that Krawa had suffered patrimonial loss, and accordingly matters pertaining to the deceased's duty of support remained in issue despite the RAF's concession. Accordingly the RAF's application to amend its plea had to be granted insofar as it related to Krawa's allegation that the deceased had been under a legal duty to support him. (Paragraphs [27] and J [42] – [48] at 359C – 360B and 366E – 370B.)

2012 (2) SA p347

Cases Considered

Annotations: A

Reported cases

Southern Africa

AA Mutual Insurance Association Ltd v Biddulph1976 (1) SA 725 (A): dictum at 735A – H applied

Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd B 2006 (6) SA 379 (C): dictum in para [24] applied

Boompret Investments (Pty) Ltd and Another v Paardekraal Concession Store (Pty) Ltd1990 (1) SA 347 (A): referred to

Botha v AA Mutual Insurance Association Ltd and Another1968 (4) SA 485 (A): referred to C

Combrinck v Strasburger 1914 CPD 314: referred to

Dippenaar v Shield Insurance Co Ltd1979 (2) SA 904 (A): referred to

Du Plessis v Road Accident Fund2004 (1) SA 359 (SCA) (2003 (11) BCLR 1220): referred to

Edelstein v Edelstein NO and Others1952 (3) SA 1 (A): referred to

Edwards v Hyde 1903 TS 381: referred to D

Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A): applied

Excell v Douglas 1924 CPD 472: referred to

Fairlands (Pty) Ltd v Inter-Continental Motors (Pty) Ltd1972 (2) SA 270 (A): dictum at 276A – B applied

Fed Trade CC v Estcourt Ltd [2011] JOL 27407 (KZP): referred to

Filta-Matix (Pty) Ltd v Freudenberg and Others1998 (1) SA 606 (SCA) ([1998] 1 All SA 239): referred to E

First National Bank of South Africa Ltd v Duvenhage2006 (5) SA 319 (SCA) ([2006] 4 All SA 541): dictum at 320F – G applied

Flemmer v Ainsworth 1910 TS 81: referred to

Frenkel, Wise & Co Ltd v Cuthbert1947 (4) SA 715 (C): referred to

Gildenhuys v Transvaal Hindu Educational Council 1938 WLD 260: dictum at 262 applied F

Grindrod (Pty) Ltd v Delport and Others1997 (1) SA 342 (W): referred to

Hulley v Cox1923 AD 234: referred to

Internatio (Pty) Ltd v Lovemore Brothers Transport CC2000 (2) SA 408 (SE): referred to

Jameson's Minors v Central South African Railways 1908 TS 575: referred to G

Jowell v Bramwell-Jones and Others2000 (3) SA 274 (SCA) ([2000] 2 All SA 161): referred to

Karpakis v Mutual & Federal Insurance Co Ltd1991 (3) SA 489 (O): referred to

Lambrakis v Santam Ltd2002 (3) SA 710 (SCA): dictum in para [12] applied H

Legal Insurance Company Ltd v Botes1963 (1) SA 608 (A): referred to

Mankebe NO v AA Mutual Insurance Association Ltd1986 (2) SA 196 (D): dictum at 199C – D applied

MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga and Another2010 (4) SA 122 (SCA): referred to

Milns v Protea Assurance Co Ltd1978 (3) SA 1006 (C): referred to

N Goodwin Design (Pty) Ltd v Moscak1992 (1) SA 154 (C): referred to I

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw2008 (5) SA 339 (SCA): referred to

Nochomowitz v Santam Insurance Co Ltd1972 (1) SA 718 (T): referred to

Oslo Land Co Ltd v The Union Government1938 AD 584: referred to

Petree Diamond Mining Co (Ltd) v Dreyfus (1885) 2 Buch AC 98: dictum at 101 applied J

2012 (2) SA p348

Plotkin v Western Assurance Co Ltd and Another1955 (2) SA 385 (W): referred to A

President Insurance Co Ltd v Mathews1992 (1) SA 1 (A): dictum at 5C – D applied

Price NO v Allied – JBS Building Society1980 (3) SA 874 (A): referred to

Reed and Another v Warren1955 (2) SA 370 (N): dictum at 373H – 374A applied B

Rousseau NO v Cloete1952 (3) SA 703 (C): referred to

Rudman v Road Accident Fund2003 (2) SA 234 (SCA): referred to

Santam Insurance Co Ltd v Fourie1997 (1) SA 611 (A): dictum at 614F applied

Santam Versekeringsmaatskappy Bpk v Byleveldt1973 (2) SA 146 (A): referred to C

Shanahan v Shanahan (1907) 28 NLR 15: referred to

Steenkamp v Juriaanse 1907 TS 980: referred to

Steenkamp v South African Broadcasting Corporation2002 (1) SA 625 (SCA): referred to

Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo1960 (2) SA 467 (A): referred to D

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): referred to

Tolstrup NO v Kwapa NO2002 (5) SA 73 (W): discussed and applied

Union Government (Minister of Railways and Harbours) v Warneke1911 AD 657: referred to

Union Government (Minister of Railways) v Lee1927 AD 202: referred to E

Union Government v Ocean Accident and Guarantee Corporation Ltd1956 (1) SA 577 (A): referred to

Waterson v Maybery 1934 TPD 210: dictum at 214 applied.

England F

Bourhill v Young[1943] AC 92 (HL (Sc)) ([1942] 2 All ER 396): referred to

Cassell & Co Ltd v Broome[1972] AC 1027 (HL) ([1972] 1 All ER 801): referred to

McCarey v Associated Newspapers Ltd and Others[1964] 3 All ER 947 (CA): G referred to.

Unreported cases

Blom v Road Accident Fund [2010] ZAGPPHC 93: referred to.

Rules Considered

Rules of court H

The Uniform Rules of Court, rule 33(1): see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta 2010) at 54.

Case Information

Appeal against a decision of a single judge.

AD Schoeman for the applicant (defendant). I

GM Budlender SC for the respondent (plaintiff).

Cur adv vult.

Postea (October 20). J

2012 (2) SA p349

Judgment

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...