Road Accident Fund v Adv MC Louw N.O. obo TE Oliphant (854/2017) [2021] ZAFSHC 225 (17 September 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: 854/2017

In the matter between:

THE

ROAD ACCIDENT

FUND Applicant

and

ADV. M.C. LOUW N.O. obo T. E.

OLIPHANT Respondent

JUDGMENT BY: I VAN RHYN, AJ

HEARD ON: 10 SEPTEMBER 2021

DELIVERED ON: 17 SEPTEMBER 2021

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 14:00 on 17 SEPTEMBER 2021.

[1] On Friday, 10 September 2021 the applicant, herein referred to as “the defendant” launched a substantial application for postponement of the trial relating to the quantum of the respondent’s (“the plaintiff”) claim in a third party matter. The application for postponement followed due to the plaintiff’s refusal to postpone the trial. The trial was enrolled for hearing for 7 and 8 September 2021. By agreement between the parties the matter was postponed to Friday, 10 September 2021 to avail the defendant of an opportunity to investigate the claim further in the hope of a settlement being reached.

[2] On Thursday morning, the 9th September 2021, the application for postponement was filed and on Friday morning, 10 September 2021, shortly before 09h30 the answering affidavit was filed. To comprehensively deal with the application for postponement it is necessary to set out the history that precipitated the application for postponement.

[3] On 3 October 2014 a minor child, Tankiso Edward Oliphant (“the Patient”), sustained severe injuries in a motor vehicle accident that occurred at a school in Bloemfontein. This resulted in a claim being lodged with the defendant whereafter summons was issued in terms of the relevant provisions of the Road Accident Fund Act, 56 of 1996 (as amended). As a result of the accident the minor child suffered a serious traumatic brain injury, a fractured left humerus as well as other injuries. The minor child has in the meantime attained majority and Advocate Mike Louw of the Bloemfontein Bar was appointed as Curator Ad Litem to the Patient.

[4] The plaintiff’s amended claim for damages in respect of past medical and hospital expenses amount to R10 000.00; the estimated future medical costs amount to R90 000.00, estimated future loss of income amounts to R2 883 166.00 and general damages amount to R1 400 000.00. The total amount claimed on behalf of the patient (as set out on amended page 3, being page 8 of the paginated pleadings bundle) is R4 383 166.00.

[5] On 17 July 2017 the matter was declared to be trial ready and enrolled for hearing for 5, 6 and 8 December 2017. On 5 December 2017, and by agreement between the parties, the issue of merits and quantum was separated in terms of the provisions of Rule 33(4) of the Uniform Rules of Court. The issue of quantum was postponed to the pre-trial roll of 12 March 2018. It was ordered that the defendant is liable to pay 100% of the plaintiff’s proven or agreed damages.

[6] On 7 June 2021 a pre-trial conference in terms of the provisions of Rule 37(8) was held and on the said date, Nekosie AJ certified the matter trial ready regarding quantum. Two days were allocated for the trial. The plaintiff filed numerous expert reports during the period between 2017 to 2019. No expert reports were however filed on behalf of the defendant.

[7] On 31 August 2021 the plaintiff filed an updated report obtained from Johan Sauer, an actuary, dated 25 August 2021 concerning the plaintiff’s claim for future loss of earnings. Contained in the bundle, “Index: Notices Vol 3” is the plaintiff’s notice to amend, filed on 31 August 2021, in terms whereof the plaintiff intends to apply, at the hearing of the matter on 7 September 2021, for an amendment in respect of the amount claimed under the heading “estimated future loss of income” in the amount of R3 345 482.00 and an amendment of the total amount claimed to be R4 845 482.00. On 2 September 2021 at 16h15, three (3) Court days before the hearing of the matter, the plaintiff served a further notice in terms of the provisions of Rule 28 to amend the quantum of the plaintiff’s claim on the defendant’s attorney. On 3 September 2021 the plaintiff filed the said notice to amend at court. In terms of the latter notice to amend, the claim for estimated future loss of income is exactly the same but the claim for general damages is reflected as R2 000 000.00.

[8] On 6 September 2021 at 11h15, the day before the trial, the plaintiff delivered to the defendant, the Patient’s school reports together with a statement obtained from the school and later on the same day, at 16h32, filed amended pages to indicate a further increase in the amounts claimed from the defendant. At 17h03 an addendum to the educational psychologist expert report was served.

[9] On the morning of the trial, Tuesday, 7 September 2021, the plaintiff, by way of electronic service delivered “Expert notice volume 5” which bundle was filed at court shortly prior to the hearing of the matter. Bundle 5 contained expert reports in terms of Rule 36(9)(b) of:

9.1 The updated report of Johan Sauer (actuary) dated 6 September 2021 and consisting of 5 pages.

9.2 Updated report of Ben Moodie (industrial psychologist) dated 6 September 2021 and consisting of 13 pages.

9.3 An updated report by Linda Roos (educational therapist) dated 6 September 2021 consisting of 18 pages.

[10] At 08h47 on 7 September 2021 the defendant received a further amendment in respect of the claim for general damages and at 08h55 the Curator Ad Litem’s report, consisting of 18 pages was filed. According to the defendant the amended reports of the educational psychologist and the industrial psychologist was only received shortly prior to 09h30 on the morning of the trial.

[11] On behalf of the defendant it was argued that the application for postponement was necessitated, primarily due to the plaintiff’s late amendment of the amounts claimed in respect of the Patient’s damages. The amendments were clearly made as a result of the filing of the updated reports obtained from the experts. Following the amendments and receipt of the updated expert reports, Mrs Canham, on behalf of the defendant, informed Mr Marx, counsel on behalf of the plaintiff that the defendant will have to apply for a postponement.

[12] The defendant’s application for a postponement is to allow for time to appoint an educational psychologist and an industrial psychologist to provide an opinion regarding the quantum in respect of the fair and reasonable future loss of earnings of the Patient. As a direct result of the COVID-19 epidemic the defendant implemented a rotation plan to limit the number of employees attending the Johannesburg Regional Office of the defendant. The limited number of employees seriously reduced and negatively impacted the work capacity of the defendant.

[13] The plaintiff’s stance is that the defendant relies on an affidavit deposed to by Christinah Mthetwa, the Acting Senior Litigation Manager employed by the defendant, whose affidavit was not properly commissioned in terms of the Regulations contained in Government Notice no. R.1258 of 21 July 1972 (as amended) in that the commissioner’s full names is not provided. I agree with Mr Marx’ submissions in this regard. Furthermore, it is contended that the defendant failed to investigate the plaintiff’s claim during the past, almost, five (5) years and only started to prepare for the trial, most probably on the morning of 7 September 2021. The addendum of the expert reports filed by the plaintiff shortly prior to the trial date merely confirm the findings made in the main reports and cannot be regarded as containing surprising evidence.

[14] A further cause of concern, according to Mr Marx, is the fact that the matter was allowed to stand down for four (4) days until Friday, 10 September 2021 to enable the defendant to obtain proper instructions to proceed with the trial or to bring a substantive application for postponement. Due to the fact that the defendant only lodged the application for postponement on Thursday, the 9th September 2021, two (2) full Court days were wasted. On these grounds as well as the contention that the defendant’s application does not meet the substantive elements essential to succeed in an application for postponement, the application should be dismissed and costs on an attorney and client scale should be granted.

The applicable legal principles:

[15] In Persadh & Another v General Motors South Africa (Pty) Ltd[1] Plaskett J succinctly set out the applicable legal principles when a party applies for a postponement as follows:

“The following principles apply when a party seeks a postponement. First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent’s procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant’s inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the party may or may not suffer must be considered; and fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.”

[16] A party giving notice of amendment in terms of Rule 28(1) is, unless the court otherwise orders, liable to pay the costs thereby caused to any other party. In Sublime Technologies (Pty) Ltd v Jonker[2] Griesel AJA held as follows:

“With regard to costs occasioned by a postponement, the general rule is that the party which is responsible for a case not proceeding on the day set down for hearing must ordinarily pay the wasted costs. It is important to bear in mind, however, that a litigant is not necessarily ‘responsible’ for the case not proceeding merely because he or she applies for a postponement. In certain circumstances, a litigant may be forced to apply for a postponement as a result of the conduct of an opponent, e.g. through inadequate discovery, a late amendment or any number of other reasons. The ‘normal rule’ only applies to ‘the party who was at fault or in default’.”

The reasons for the application for postponement:

[17] The updated expert reports and further amendments regarding the quantum of the plaintiff’s claim filed on 31st August 2021, 6 and 7 September 2021 necessitates further investigation according to the defendant. During arguments, Mr Marx conceded that the postponement of the trial is inevitable and that dates for the hearing of the matter have already been agreed upon and arranged with the Registrar of the court, to wit 16, 17 and 19 November 2021. The only aspect in dispute between the parties is the question regarding the costs occasioned by the postponement.

[18] Mrs Canham informed the court that, even though the file pertaining to the plaintiff’s claim was only attended to shortly prior to the trial date, the defendant was in the process of making settlement proposals based on the claim prior to the amendments. The settlement proposals were already submitted for approval with the Acting Regional Manager. If the amendments and updated reports were not filed immediately prior to the trial date, a settlement proposal would have been submitted to the plaintiff on the day of the trial. The defendant is therefore prejudiced due to the fact that the updated reports need to be properly considered and investigated and the defendant should also be given the opportunity to consider appointing experts to advise the defendant regarding the findings contained in these updated reports as well as the contents of the school reports. The defendant does not intend to object to the amendments pertaining to the quantum of the plaintiff’s claim, however the defendant should be treated fairly and be given the opportunity to consider its position in light of the increased amounts.

[19] Serious allegations were made by the plaintiff regarding the settlement of general damages directly with the mother of the Patient. It appears as if, since the first lodgement of the claim with the defendant, there were three (3) mandates for the plaintiff. The claim was lodged by the mother of the Patient in 2015 and in June 2015 attorneys came on record on behalf of the plaintiff whereafter the attorney’s mandate was terminated during 2016. Subsequently the patient’s mother instructed the attorneys on record to handle the claim against the defendant. Due to the seriousness of these allegations, it is therefore necessary to afford the defendant of an opportunity to investigate the allegations regarding the settlement of the claim in connection with the general damages.

[20] The defendant’s application for a postponement is not unreasonable under the prevailing circumstances. It arose due to the plaintiff’s proposed amendments and the filing of three (3) updated expert reports on the day prior to the trial as well as on the morning of the trial day. Wasted costs of the day are in general paid by the party seeking an adjournment unless good cause is shown why such party should not pay the costs. However, that is not a general rule. The reasons for the defendant’s inability to submit an offer of settlement on either the 7th or 8th September 2021 were fully explained. The postponement sought was not a delaying tactic. I am of the view that justice demands that the defendant be afforded the opportunity to properly investigate the updated expert reports received immediately prior to the trial date, to consult with any experts and to consider the amended claims in respect of future loss of earnings as well as a full and detailed investigation in respect of the settlement of the general damages.

[21] In my view the plaintiff can hardly complain about the postponement where the delay in settling the claim was caused due to the late filing of updated expert reports and amendments to the quantum of the Patient’s claim.[3] It appears from the application for postponement that the quantum of the plaintiff’s claim has escalated from approximately R3.3 million to R7.8 million. The plaintiff did not dispute these amounts in the answering affidavit. The two separate notices to amend, as contained in the court file, does not reflect the amounts alluded to by the defendant. The total amount claimed is R5 445 482.00 as it appears on the last notice to amend filed on 3 September 2021 and contained in the bundle: “Index: Notices Vol 3”.

[22] From the analysis of all the arguments before me as well as the evidence pertaining to the dates on which the amendments and updated expert reports were served and filed, it is undoubtedly the plaintiff’s failure to adhere to the court rules in respect of the application for amendments and filing of expert reports that resulted in the late amendment and instructions for updated reports from the experts. The plaintiff is the party responsible for the postponement and the subsequent waste of, ultimately three court days. Mrs Canham argued that the costs should accordingly be borne by the plaintiff, however, the defendant is willing to have each party pay their own costs. Notwithstanding the aforesaid facts and circumstances regarding the necessity to postpone the matter, Mr Marx endeavoured to place the blame on the representative acting on behalf of the defendant. He found it apposite to warn Mrs Canham that legal practitioners had been struck from the roll for not coping with his/her workload. This Court is conscientious of the fact that Mrs Canham and her colleague attends to all the Road Accident Fund cases enrolled for hearing in the Free State Division of the High Court. I find Mr Marx’s remarks in this regard unwarranted and inappropriate.

[23] As is evident from the reasons provided above in respect of the postponement, I am of the view that the defendant’s attorney of record, requested the plaintiff to agree to a postponement of the matter the moment she realized that the defendant would be left with too little time to investigate the amendments and further reports filed in order to settle the matter on the day of the trial. The plaintiff, however, simply refused to entertain this request which occasioned the necessity of a formal application for the postponement of the trial. Not only did the plaintiff require a formal postponement application. Mr Marx also chose to file a lengthy affidavit in opposition thereto which was served and filed on Friday, the 10th September 2021, the day on which a possible settlement of the plaintiff’s claim was to be agreed to.

[24] The matter has been postponed for hearing on 16, 17 and 19 November 2021.

The defendant is accordingly afforded the opportunity to obtain the input and advices from experts as it sees fit.

[25] In the circumstances, it is ordered that:

1. Each party is to pay their own costs occasioned by the postponement.

I VAN RHYN, AJ

On behalf of the Applicant: Mrs R Canham

Instructed by: Road Accident Fund

BLOEMFONTEIN

On behalf of the Respondent: Adv D Marx

Instructed by: Du Plooy Attorneys

[1] 2006 (1) SA 455 (SE) at [13]

[2] 2010 (2) SA 522 (SCA) at [3]

[3] Protea Life CO Ltd v Mich Quenet Financial Brokers en Andere 2001 (2) SA 636 (O) at 647 B - D