Kekana v Road Accident Fund (21056/04) [2005] ZAGPHC 8 (6 January 2005)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)Date : 6 January 2005REPORTABLECase number:21056/2004In the matter betweenMAPULE KEKANA

PLAINTIFFandTHE ROAD ACCIDENT FUND

DEFENDANTDefault judgment – action for damages – judgment whichholdsnegligenceto have been provedgenerally not appropriate where no evidence is heard in terms of Rule 31(2)(a)Van Rooyen AJ[1] This is an application for a default judgment against the Road Accident Fund. The Court was requested to grant an order in the following terms:1.That the issue of quantum and merits be separated;2.That defendant is liable to compensate Plaintiff for the damagesproven as a result of an accident dated 10 April 2003;3.That the issue relating to quantum be postponed sine die4.That costs of suit be awarded against the defendant.[2] When the Court was already in session and the matter was called, counsel for the Defendant,Mr. Meintjies,requested that the matter be removed from the roll and tendered costs. A notice to defend had, at this stage, been filed.Mr.Snyman, for the Plaintiff, argued that the notice had not been properly served and was, in any case,out of time. This would require me tocondone the irregularservingand, in the absence of cogent reasons for such filing,I should not condone the late and irregular filing.[3] Before I deal with the irregular filing, theprimaryissue is whether this kind of default judgment is proper in the circumstances. Rule 31(2)(a) provides as follows:“ Whenever in an action the claim…is not for a debt or liquidated demand and a defendant is in default of

delivery of notice of intention or of a plea, the plaintiff may set the action down…for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as to it seems meet.”[4]InNCP Havenga v SM Parker(unreported 28 February 1993,TPD)Van Dijkhorst J, in an application for a default judgment,allowed the presentation of a sworn affidavit of an orthopaedic surgeon in regard to the injuries suffered by the plaintiff in a shooting incident. This judgment was discussed by Marius van Staden in 1993DeRebus483 ( see ErasmusSuperior Court PracticeB1-200, note 12). The author welcomed the innovative approach to theCourt in the light of past practice where such evidence had to be ledviva voce.The learned author also referred toThe New Zealand Insurance Company v Du Toit1965(4) SA 136(T)where theCourt came to the conclusion that, although it would be dangerous to allow this type of practice, it would err if it did not allow thesworn statement concerning thequantumin the circumstances of the matter before the court.The damages were obviously much more than the R5000.Van Staden points out that this judgment had, for some inexplicable reason, not found general application in our courts. The presiding Judge in theHavengamatter had, however, statedthat he had discussed the matter with some of his brother judges and the Judge President. Of

course, the admisionof such evidence would not exclude the power of the court to requireviva voceevidence in an appropriate case.[5]InMashifane v Suliman and Another1931 TPD 328Maritz J ( as he then was),indealing with an application for default judgmenton a claim for damages arising from the death of the plaintiff’s husband as bread-winner, stated as follows at 331:“So even if Mr.Niemeyeris correct in contending that though your action be based on tort you need not necessarily prove the cause of your action when the defendant is in default ( apoint on which it is not necessary to express an opinion in these proceedings), the Court still has a discretion and may order that evidence be placed before it proving the plaintiff’s cause of action. So…I certainly think that in this case I should exercise my discretion and refuse to entertain the question of the amount of damages before I have satisfied myself, by evidence, that negligence has been proved entitling the plaintiff to claim damages.”[6] InVenter v Nel1997(4) SA 1014(D & CLD) Broome DJP also had an undefended action for damages before him.He states as follows at 1016A:“ The practice in this Division is to hear some evidence on claims for damages, but inevitably the inquiry is not as detailed or controversial as it would be were the matter defended, were the defendant be defended by counsel and were the evidence of

the witnesses who testified for the plaintiff tested by way of cross-examination and by the defendant leading countervailing evidence.In this particular matter I have heard evidence from the plaintiff herself, from her counselor, Mrs Towell, and from Dr Andrew Clark, who is well acquainted with the facts of this case and is an expert in this field of medical science…I am asked simply to fix a figure for damages and, in doing so, I stress that, the matter being undefended, the inquiry is inevitably not as detailed as would otherwise be the case.”[7] InDorfling v Coetzee1979(2) SA 632(NC)it wasremarkedthat in motor collision casesthe approach was thatthe evidence should not be confined toquantum, but that that the cause of action should also be established as well as whether there was contributorynegligence. Basson AJ stated as follows, after considering the practice in some other Divisions:“ Ek het die geleentheid gehad om die aangeleentheid met twee Kollegas… te bespreek en ek kan dit as `n feit stel dat dit nie die praktyk in hierdie Afdeling is om in `n geval soos hierdie die getuienis te beperk tot slegs die bedrag van die skade nie.”[8] It was argued byMr. Snymanthat on previous occasions this Court had issued default judgment in the terms which were stated in his notice of setdown. It is clear, of course, that Rule 31(2)(a) does granta discretion to theCourt as to

whethertorequire evidence or not. I agree with what Beadle CJ said inKnight NO v Harris1962(2) SA 317(SR) thatthis course should only be followed in exceptional cases:“in the normal course …I am inclined to the view that it would be unwise for a Court to dispense with the hearing of evidence in claims (in casuclaims for damages arising from motor collisions) such as this.I have discussed the matter with the Senior Judge during recess this week, Botha J, and he has confirmed that it is not thegeneralpractice in this Division to issue a default judgmentin terms of Rule 31(2)(a)in an action for damages without hearing evidence. The Court always has a discretion to insist onviva voceevidence but it may, under circumstances, be satisfied with evidence by way of affidavit. Cf what was said byVan Dijkhorst J inHavenga(supra).[9] It should be added that the division of cause of action and quantum, at this stage of the litigation, would also not seem to satisfy the requirement of convenience in terms of Rule 33(4).Mr. Snymanargued that the plaintiff would at least be in a position to obtain certain payments at this stage.However, my main concern remains : is the defendant liable at all? At trial stage such a division of the matter would seem equitable, but at this stage, given the absence of any evidence, I cannot find any convenience or fairness in the division.[10] In the present

matter I am, with respect, at a loss as to howIcan safely find that a cause of action exists. There is nomannerin which I would be able to establish from the particulars of claim whether the driver of the motor vehicle was negligent and whetherthe minor of eight years, who was injured in the present matter,might not have been negligentas well. It is true that a minor of eightmightnot have beenculpae capaxbut I cannot simply accept that,without evidence being led in this regard (cfWeber v Santam1983(1) SA 381(A)).[11] It is true, of course, hat a default judgment may be set aside on application of the defendant. But this is beside the point at this stage: this Court cannot responsibly issue an order in a complicated matter such as the present without hearing evidence. If necessary, the expert evidence, andpossiblyeven other evidence, might be led on affidavit. This would depend on the complexity of the case. However, in the present matter I have nothing more before me than the Particulars of Claim.It would, to my mind, be unwise to grant an order on the mere papers before me. I would requirevivavoceevidence in such a complex case and probably accept an affidavit from the expert medical witness.Of course, the inquiry might not be as detailed as in a defended matter. In the present matter there is, however, no evidence before me. To simply accept that the driver was negligentor

solely negligentwould amount to, as it were,a leap into the dark.The application is dismissed with costs.In the light of the conclusion which I have reached, I need not deal with the question as to the regularity of the notice to defend, which was brought to my attentionat the hearing of the matterthe day before yesterday.The application, as such, was abortive.JCW van Rooyen……………………..Acting Judge of the High Court6 January 2005Advocatefor the applicant : M SnymanAdvocate for the defendant: ViljoenMeyerAttorneys for defendant: Gildenhuys Van der Merwe IncAttorneys for plaintiff: Van Huyssteen & Kriel AttorneysHeard on: 4/1/05

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

Date : 6 January 2005

REPORTABLE

Case number

:

21056/2004In the matter betweenMAPULE KEKANA

PLAINTIFF

andTHE ROAD ACCIDENT FUND

DEFENDANT

Default judgment – action for damages – judgment which

holds

negligence

to have been proved

generally not appropriate where no evidence is heard in terms of Rule 31(2)(a)

Van Rooyen AJ

[1] This is an application for a default judgment against the Road Accident Fund. The Court was requested to grant an order in the following terms:1.That the issue of quantum and merits be separated;

[1] This is an application for a default judgment against the Road Accident Fund. The Court was requested to grant an order in the following terms:

2.That defendant is liable to compensate Plaintiff for the damagesproven as a result of an accident dated 10 April 2003;3.That the issue relating to quantum be postponed sine die4.That costs of suit be awarded against the defendant.

[2] When the Court was already in session and the matter was called, counsel for the Defendant,Mr. Meintjies,requested that the matter be removed from the roll and tendered costs. A notice to defend had, at this stage, been filed.Mr.Snyman, for the Plaintiff, argued that the notice had not been properly served and was, in any case,out of time. This would require me tocondone the irregularservingand, in the absence of cogent reasons for such filing,I should not condone the late and irregular filing.[3] Before I deal with the irregular filing, theprimaryissue is whether this kind of default judgment is proper in the circumstances. Rule 31(2)(a) provides as follows:

[2] When the Court was already in session and the matter was called, counsel for the Defendant

,

Mr. Meintjies,

requested that the matter be removed from the roll and tendered costs. A notice to defend had, at this stage, been filed.

Mr

.

Snyman

, for the Plaintiff, argued that the notice had not been properly served and was, in any case

out of time. This would require me to

condone the irregular

serving

and, in the absence of cogent reasons for such filing

I should not condone the late and irregular filing.

[3] Before I deal with the irregular filing, the

primary

issue is whether this kind of default judgment is proper in the circumstances. Rule 31(2)(a) provides as follows:

“ Whenever in an action the claim…is not for a debt or liquidated demand and a defendant is in default of delivery of notice of intention or of a plea, the plaintiff may set the action down…for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as to it seems meet.”

[4]InNCP Havenga v SM Parker(unreported 28 February 1993,TPD)Van Dijkhorst J, in an application for a default judgment,allowed the presentation of a sworn affidavit of an orthopaedic surgeon in regard to the injuries suffered by the plaintiff in a shooting incident. This judgment was discussed by Marius van Staden in 1993DeRebus483 ( see ErasmusSuperior Court PracticeB1-200, note 12). The author welcomed the innovative approach to theCourt in the light of past practice where such evidence had to be ledviva voce.The learned author also referred toThe New Zealand Insurance Company v Du Toit1965(4) SA 136(T)where theCourt came to the conclusion that, although it would be dangerous to allow this type of practice, it would err if it did not allow thesworn statement concerning thequantumin the circumstances of the matter before the court.The damages were obviously much more than the R5000.Van Staden points out that this judgment had, for some inexplicable reason, not found general application in our courts. The presiding Judge in theHavengamatter had, however, statedthat he had discussed the matter with some of his brother judges and the Judge President. Of course, the admisionof such evidence would not exclude the power of the court to requireviva voceevidence in an appropriate case.[5]InMashifane v Suliman and Another1931 TPD 328Maritz J ( as he then was),indealing with an application for default judgmenton a claim for damages arising from the death of the plaintiff’s husband as bread-winner, stated as follows at 331:

In

NCP Havenga v SM Parker

(unreported 28 February 1993,TPD)

Van Dijkhorst J

, in an application for a default judgment,

allowed the presentation of a sworn affidavit of an orthopaedic surgeon in regard to the injuries suffered by the plaintiff in a shooting incident. This judgment was discussed by Marius van Staden in 1993

De

Rebus

483 ( see Erasmus

Superior Court Practice

B1-200

, note 12

)

. The author welcomed the innovative approach to the

C

ourt in the light of past p

rac

ti

c

e where such evidence had to be led

viva voce.

The learned author also referred to

The New Zealand Insurance Company v Du Toit

1965(4) SA 136(T)

where the

ourt came to the conclusion that, although it would be dangerous to allow this type of practice, it would err if it did not allow the

sworn statement concerning the

quantum

in the circumstances of the matter before the court.

The damages were obviously much more than the R5000.

Van Staden points out that this judgment had, for some inexplicable reason, not found general application in our courts. The presiding Judge in the

Havenga

matter had, however, state

d

that he had discussed the matter with some of his brother judges and the Judge President. Of course, the a

dmision

of such evidence would not exclude the power of the court to require

viva voce

evidence in an appropriate case.[5]

Mashifane v Suliman and Another

1931 TPD 328Maritz J ( as he then was),

1931 TPD 328

in

dealing with an application for default judgment

on a c

l

aim for damages arising from the death of the plai

n

tiff’s husband as bread

-

winner, stated as follows at 331:

“So even if Mr.Niemeyeris correct in contending that though your action be based on tort you need not necessarily prove the cause of your action when the defendant is in default ( apoint on which it is not necessary to express an opinion in these proceedings), the Court still has a discretion and may order that evidence be placed before it proving the plaintiff’s cause of action. So…I certainly think that in this case I should exercise my discretion and refuse to entertain the question of the amount of damages before I have satisfied myself, by evidence, that negligence has been proved entitling the plaintiff to claim damages.”

“So even if Mr.

Niemeyer

is correct in contending that though your action be based on tort you need not necessarily prove the cause of your action when the defendant is in default ( a

point on which it is not necessary to express an opinion in these proceedings), the Court still has a discretion and may order that evidence be placed before it proving the plaintiff’s cause of action. So…I certainly think that in this case I should exercise my discretion and refuse to entertain the question of the amount of damages before I have satisfied myself, by evidence, that negligence has been proved entitling the plaintiff to claim damages.”

[6] InVenter v Nel1997(4) SA 1014(D & CLD) Broome DJP also had an undefended action for damages before him.He states as follows at 1016A:

[6] In

Venter v Nel

1997(4) SA 1014(D & CLD) Broome DJP also had an undefended action for damages before him.

He states as follows at 1016A:

“ The practice in this Division is to hear some evidence on claims for damages, but inevitably the inquiry is not as detailed or controversial as it would be were the matter defended, were the defendant be defended by counsel and were the evidence of the witnesses who testified for the plaintiff tested by way of cross-examination and by the defendant leading countervailing evidence.In this particular matter I have heard evidence from the plaintiff herself, from her counselor, Mrs Towell, and from Dr Andrew Clark, who is well acquainted with the facts of this case and is an expert in this field of medical science…I am asked simply to fix a figure for damages and, in doing so, I stress that, the matter being undefended, the inquiry is inevitably not as detailed as would otherwise be the case.”

[7] InDorfling v Coetzee1979(2) SA 632(NC)it wasremarkedthat in motor collision casesthe approach was thatthe evidence should not be confined toquantum, but that that the cause of action should also be established as well as whether there was contributorynegligence. Basson AJ stated as follows, after considering the practice in some other Divisions:

[7] In

Dorfling v Coetzee

1979(2) SA 632(NC)

it was

remarked

that in motor collision cases

the approach was that

the evidence should not be confined to

, but that that the cause of action should also be established as well as whether there was contributor

y

negligence. Basson AJ stated as follows, after considering the practice in some other Divisions:

“ Ek het die geleentheid gehad om die aangeleentheid met twee Kollegas… te bespreek en ek kan dit as `n feit stel dat dit nie die praktyk in hierdie Afdeling is om in `n geval soos hierdie die getuienis te beperk tot slegs die bedrag van die skade nie.”

[8] It was argued byMr. Snymanthat on previous occasions this Court had issued default judgment in the terms which were stated in his notice of setdown. It is clear, of course, that Rule 31(2)(a) does granta discretion to theCourt as to whethertorequire evidence or not. I agree with what Beadle CJ said inKnight NO v Harris1962(2) SA 317(SR) thatthis course should only be followed in exceptional cases:“in the normal course …I am inclined to the view that it would be unwise for a Court to dispense with the hearing of evidence in claims (in casuclaims for damages arising from motor collisions) such as this.I have discussed the matter with the Senior Judge during recess this week, Botha J, and he has confirmed that it is not thegeneralpractice in this Division to issue a default judgmentin terms of Rule 31(2)(a)in an action for damages without hearing evidence. The Court always has a discretion to insist onviva voceevidence but it may, under circumstances, be satisfied with evidence by way of affidavit. Cf what was said byVan Dijkhorst J inHavenga(supra).[9] It should be added that the division of cause of action and quantum, at this stage of the litigation, would also not seem to satisfy the requirement of convenience in terms of Rule 33(4).Mr. Snymanargued that the plaintiff would at least be in a position to obtain certain payments at this stage.However, my main concern remains

: is the defendant liable at all? At trial stage such a division of the matter would seem equitable, but at this stage, given the absence of any evidence, I cannot find any convenience or fairness in the division.[10] In the present matter I am, with respect, at a loss as to howIcan safely find that a cause of action exists. There is nomannerin which I would be able to establish from the particulars of claim whether the driver of the motor vehicle was negligent and whetherthe minor of eight years, who was injured in the present matter,might not have been negligentas well. It is true that a minor of eightmightnot have beenculpae capaxbut I cannot simply accept that,without evidence being led in this regard (cfWeber v Santam1983(1) SA 381(A)).

[8] It was argued by

Mr. Snyman

that on previous occasions this Court had issued default judgment in the terms which were stated in his notice of setdown. It is clear, of course, that Rule 31(2)(a) does g

rant

a discretion to the

ourt as to whether

to

require evidence or not. I agree with what Beadle CJ said in

Knight NO v Harris

1962(2) SA 317(SR) that

this course should only be followed in exceptional cases:

“in the normal course …I am inclined to the view that it would be unwise for a Court to dispense with the hearing of evidence in claims (

in casu

claims for damages arising from motor collisions) such as this.

I have discussed the matter with the Senior Judge during recess this week, Botha J, and he has confirmed that it is not the

general

practice in this Division to issue a default judgment

in terms of Rule 31(2)(a)

in an action for damages without hearing evidence

. The Court always has a discretion to insist on

evidence but it may, under circumstances, be satisfied with evidence by way of affidavit. Cf what was said by

Van Dijkhorst J in

Havenga(supra)

[9] It should be added that the division of cause of action and quantum, at this stage of the litigation, would also not seem to satisfy the requirement of convenience in terms of Rule 33(4).

argued that the plaintiff would at least be in a position to obtain certain payments at this stage.

However, my main concern remains : is the defendant liable at all? At trial stage such a division of the matter would seem equitable, but at this stage, given the absence of any evidence, I cannot find any convenience or fairness in the division.

[

10

] In the present matter I am, with respect, at a loss as to how

I

can safely find that a cause of action exists. There is no

manner

in which I would be able to establish from the particulars of claim whether the driver of the motor vehicle was negligent and whether

the minor of eight years

, who was injured in the present matter,

might not have been negligent

as well. It is true that a minor of eight

might

not have been

culpae capax

but I cannot simply accept that

without evidence being led in this regard (cf

Weber v Santam

1983(1) SA 381(A)

[11] It is true, of course, hat a default judgment may be set aside on application of the defendant. But this is beside the point at this stage: this Court cannot responsibly issue an order in a complicated matter such as the present without hearing evidence. If necessary, the expert evidence, andpossiblyeven other evidence, might be led on affidavit. This would depend on the complexity of the case. However, in the present matter I have nothing more before me than the Particulars of Claim.It would, to my mind, be unwise to grant an order on the mere papers before me. I would requirevivavoceevidence in such a complex case and probably accept an affidavit from the expert medical witness.Of course, the inquiry might not be as detailed as in a defended matter. In the present matter there is, however, no evidence before me. To simply accept that the driver was negligentor solely negligentwould amount to, as it were,a leap into the dark.The application is dismissed with costs.In the light of the conclusion which I have reached, I need not deal with the question as to the regularity of the notice to defend, which was brought to my attentionat the hearing of the matterthe day before yesterday.The application, as such, was abortive.

[1

1

] It is true, of course, hat a default judgment may be set aside on application of the defendant. But this is beside the point at this stage: this Court cannot responsibly issue an order in a complicated matter such as the present without hearing evidence. If necessary, the expert evidence, and

possibly

even other evidence, might be led on affidavit

. This would depend on the complexity of the case. However, in the present matter I have nothing more before me than the Particulars of Claim.

It would, to my mind, be unwise to grant an order on the mere papers before me. I would require

viva

voce

evidence in such a complex case and probably accept an affidavit from the expert medical witness.

Of course, the inquiry might not be as detailed as in a defended matter. In the present matter there is, however, no evidence before me. To simply accept that the driver was negligent

or solely negligent

would amount to

, as it were,

a leap into the dark.

The application is dismissed with costs.

In the light of the conclusion which I have reached, I need not deal with the question as to the regularity of the notice to defend, which was brought to my attention

at the hearing of the matter

the day before yesterday.

The application, as such, was abortive.

JCW van Rooyen……………………..Acting Judge of the High Court6 January 2005Advocatefor the applicant : M SnymanAdvocate for the defendant: ViljoenMeyerAttorneys for defendant: Gildenhuys Van der Merwe IncAttorneys for plaintiff: Van Huyssteen & Kriel AttorneysHeard on: 4/1/05

JCW van Rooyen

……………………..

Acting Judge of the High Court

6 January 2005

Advocate

for the a

pplicant : M Snyman

Advo

ate for the d

efendant

: V

iljoen

Me

yer

Attorneys for defendant: Gildenhuys Van der Merwe IncAttorneys for plaintiff: Van Huyssteen & Kriel AttorneysHeard on: 4/1/05