South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:795/04

DATE:2005-03-03

In the matter between

ELIZABETH MKHUMA abo N P......................................................................................Plaintiff

and

ROAD ACCIDENT FUND........................................................................................... Defendant

JUDGMENT

WILLIS, J: This is the first day of the trial which has been set down in this matter. Mr Joseph who appears for the defendant has made the standard application in terms of Rule 33(4) for a separation of the merits from the quantum. It is certainly true that the plain reading of the sub-rule casts an onus upon the party opposing the separation to show that it would not be convenient for the court to make the order sought. It is also certainly true that in this division, in cases brought against the Road Accident Fund, such orders are routinely granted.

Usually, such applications are made by agreement between the parties.

Mr Du Plessis who appears for the plaintiff has, however, raised the following points in his client's favour:-

1. It is common cause that the plaintiff was a four year old child at the time and therefore would be culpae incapax.

2. There is an affidavit signed by the insured driver which is in the possession of both parties. In that affidavit the following appears:

"I took off from the stop sign and as I proceeded further on, I saw a young child, N M running out of the shop towards the vehicle where I was driving from my left in an east to westerly direction. By the time I realised that the child was going to enter the road it was too late to brake. I thought that the child would respect my right of way and did not brake. I swerved the vehicle to my right and collided with her on the left-hand side of my vehicle." (my emphasis) It is clear therefore that, prima facie, the insured driver was negligent and by reason of the fact that the child in question would be culpae incapax that, prima facie, the merits are entirely in favour of the plaintiff.

Of course, it is the right of the defendant to test the veracity of what was contained in this affidavit. Nevertheless, as it is common cause that the insured driver is the only witness as to the merits it is not difficult to grasp that the defendant is faced with very real difficulties in the light of this affidavit. In Erasmus Civil Procedure in the Superior Courts the learned author refers to various decided cases to emphasise that separation is never a mere formality and that convenience must be demonstrated. The court must also weigh the interests of expedition and finality in litigation in the equation.

I was also referred to two unreported judgments given in this division. The one by my brother Fevrier, AJ in case number 1 3852, Georgina Guides v Road Accident Fund dated 4 August 2004, and the other by my brother Claassen J in case number 22997/03 in the matter between Samuel Vuzi Tshabalala v Road Accident Fund dated 29 October 2004. Both these cases deal with applications for postponement and I accept that the principles relevant to a postponement and a separation are not absolutely ad idem. Nevertheless I find the following which appears in the judgment of my brother Fevrier, AJ instructive:-

"It is difficult to understand what separation of issues is required when all that would happen in a trial relating to the so-called merits, is that there would be evidence of the fact of being stationary in her vehicle and the insured driver colliding with the rear. The trial might have taken five minutes, if that. I do not believe that this is a genuine issue and the inference is irresistible that the defendant was playing for time and was using this as a device with which to prolong the matter." In the judgment of Claassen, J he refers with approval to this judgment of Fevrier, AJ and notes that:-

"Mr Du Plessis for the plaintiff, submitted that the merits were never realistically in dispute and he bases this submission on the questions asked at the pre-trial conference which was held on 30 September 2004." In both these cases the application for a postponement was refused. Taking everything into account, the application for a separation of issues in terms of Rule 33(4) is dismissed with costs.