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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

Case No: 72928/16

20/3/2020

 

In the matter between:

 

THE ROAD ACCIDENT FUND                                                                 Applicant

 

and

 

AMOS GWARUBANA                                                                                Respondent

JUDGMENT

MNGQIBISA-THUSI J

[1]        The applicant the Road Accident Fund ("the RAF"), seeks an order for the removal to the Western Cape High Court Division of the action instituted by the respondent, Mr Amos Gwarubana. for damages arising from Injuries sustained as a result of a collision which occurred on 19 March 2015 along the N2,Athlone, Cape Town.

[2]        The summons were Issued in this Division and the respondent resides in Langa, Cape Town.

[3]        The respondent seeks, ln the event of the applicant not being successful a cost order inclusive of costs for two counsel.

[4]        On 19 September 2017 the parties attended a judicial pre-trial meeting where the matter was certified trial ready and the parties had agreed that it is not necessary to transfer the matter to another Division. Further, the parties had attended a judicial case management meeting in this Division.

[5]        The applicant has conceded liability on an 80%/20% basis in favour of the applicant. The issues of medical expenses and general damages have been settled. The only issue remaining for determination is loss of Income/loss of earning capacity.

[6]        The issues to be determined are:

6.1       whether the applicant is entitled to withdraw from in agreement made at a pre-trial meeting that the matter should not be removed to another Division; and

6.2       which Division would be appropriate or convenient for this matter to be heard.

[7]        With regard to whether the applicant is bound by the agreement at the pre-trial meeting not to remove this matter from this Division counsel for the applicant submitted that such an agreement should not be an obstacle to removing the matter where good cause has been shown why it should be removed.

[8]        With regard to the removal of the matter-to the Western cape Division it is the RAF's contention that since the whole cause of action arose within the area of jurisdiction of the Western Cape Division, this matter would appropriately be dealt with in that High Court Division if one takes into account the following factors:

8.1    that the respondent Is resident In Cape Town;

8.2    that the medical experts the respondent has consulted with have offices in Cape Town;

8.3    that removing the matter to the Western Gape High Court would be more cost effective.

 

[9]        It was submitted on behalf of the RAF that if the matter is removed to the Western Cape, this would save the RAF from Incurring unnecessary expenses for the travel and accommodation costs not only of the respondent but also of his medical expert witnesses and legal representatives. It is further the RAF's contention that since it has a principal office in Cape Town, it would be convenient for all parties if the matter is heard in the Western Cape Division.

[10]      On the issue of the agreement reached at the pre-trial meeting counsel for the. respondent argued that the applicant could not withdraw from the agreement that the matter should be heard in this Division. In this regard counsel made reference to the decision in MEG for Economic Affairs, Environmental and Tourism Eastern Cape v Kruizenga & Another[1] where the court stated the following with regard to Uniform Rule 37 of the Rules of Court:

"[6]       . .. The rule was introduced to shorten the length of trials, to facilitate settlements between parties, narrow the issues and to curb costs. One of the methods the parties use to achieve these objectives is to make admissions concerning the number of issues which the pleadings raise. Admissions of fact made at a rule 37 conference, constitute sufficient proof of those facts”.

 

[11]       The respondent’s main reason for opposing the application to remove the matter to Cape Town is that at the pre-trial meeting held on 19 September 2019 the parties had agreed that the matter should not be removed to another Division and in view of the fact that the RAF has conceded the issue of liability, it would be convenient for the parties if the matter is heard in this Division.

[12]       Counsel for the respondent further submitted that the court processes in the Western Cape Division take too long and that it was his client's right to bring his action In this Division in view of the fact that the RAF's national office was in Pretoria. Further, counsel for the respondent further submitted in relation to the expert witnesses that the respondent's witnesses had offices throughout the country and having the matter heard in Pretoria would not pose any problem to them.

[13]     It is not in dispute that concessions or agreements made by the parties during pre-trial meetings are binding on the parties. Taking into consideration the Kruizenga matter, I am of the view that the agreement reached not to remove this matter from this Division is not an issue raised ln the pleadings. I am of the view that such agreement cannot trump the convenience (if shown) of having the matter removed to the Western Cape Division. I am satisfied that the balance of convenience favours the transferring of the matter to the Western Cape Division even though the RAF had previously agreed that the matter be heard in this Division.

[14]     Section 21(1) of the Superior Courts' Act[2] ("the Act") provides that:

 

"(1)       A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, Its area of jurisdiction and all other matters of which it may, according to law take cognizance, and…".

 

[15]     It is not in dispute that this Division by virtue of the RAF's principal office being located in Pretoria, has concurrent jurisdiction[3] with the Western Cape Division as the cause of action-arose within that Division’s area of jurisdiction. However, the RAF does have other principal places of business located in the Western Cape and Kwa-Zulu-Natal. The respondent therefore had the choice to institute his claim either In this Division or in the Western Cape Division where his claim processed al the RAF's Cape Town office.

[16]     In this application the RAF relies on the provisions of s 27(1) of the Act which provides that:

 

"If any civil proceedings has been instituted in a Division or any seat of a Division, and ii appears to the court that such proceedings-

(a)     should have been Instituted ln another Division or at another seat of that Division: or

(b)     would be more conveniently or more appropriately heard or determined-

(i)            at another seat of that Division: or

(ii)           by another Division,

That court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division, or seat, as the case may be'.

 

[17]     In determining which Division is more appropriate or convenient to hear this matter the following factors have to be taken into account: (i) the convenience of the parties; (ii) the convenience of the court; (iii) the general disposition of the litigation: and the balance of convenience in favour of removing the matter.

[18]     In Lakey, DA v RAF[4] the court held that:

 

"[21]        The question that arises is whether this court must simply accept the fact that any RAF claim can be instituted- in Pretoria. The RAF roll In this Division ls quite spectacle. The court corridor in the morning outside the RAF roll call reminds of an old-era trading floor where stock prices are fixed, only here, it is the misery of road collisions victims that is traded in bulk.

 

[22]         I do not believe that this court must simply accept this state of affairs. Requirements of access to Justice and the appropriate use of judicial resources dictate that a plaintiff should Institute action in the most appropriate division , and not the division that suits the convenience of the plaintiff s attorneys or the Fund. The Fund must serve all South Africans, not only those in the main centres.

….

[27]         The underlined principles of convenience and access to justice should be expanded to Include the broader public interest in litigation that is effectively funded by the public. The RAF Act is social legislation and litigants should respect the underlying purposes. It does not serve Justice when litigation is Instituted ln courts far away from witnesses, who are compelled to come to court, and where the costs are in most cases ultimately borne by the RAF”.

[19]      The following facts are not in dispute:

19.1    that the cause of the action arose within the jurisdiction of the Western Cape Division;

19.2    that the respondent ls resident within the area of jurisdiction of the Western Cape High Court; and

19.3    that the respondent has already consulted with medical experts In Cape Town.

 

[20]       In view of the court's remarks in the Lakey matter above, one needs to take into consideration the cost implications for the RAF which is dealing with public funds. If the matter remains in Pretoria, not only would the RAF carry the travel expenses of the respondent's witnesses who invariably are located In Cape Town, but also the accommodation costs of those witnesses. For the matter to be heard in Cape Town will not cost the RAF much as it has offices in Cape Town and as alluded to by counsel for the RAF, if it is necessary for the RAF to appoint its own witnesses , it will appointed experts from Cape Town.

[21]       I am not convinced. taking into account the concerns raised by the respondent about the processes in the Western Cape Division, that it would be in the interest of justice convenient or appropriate for this matter not to be removed to the Western Cape Division. The RAF is entitled to conduct its statutory obligations in a cost-effective manner as this dealing with public funds.

[22]     I am therefore satisfied that the RAF has shown sufficient cause for the matter to be removed to the Western Cape Division.

[23]     On costs, the RAF is entitled to its costs as the successful party in view of the respondent opposing its application.

[24]     In the result the following order is made:

1.       This matter, under case number 72928!16, is hereby removed to the Western Cape High Court Division, Cape Town, in terms of section 27(1) (b) of the Superior Courts Act, 10 of 2013, as amended.

2.       The respondent is ordered to pay the costs of this application.

 

 

 

NP MNGQIBISA-THUSI J

Judge of the High Court

 

 

For Applicant's representatives: Marivate Attorneys

Respondent's representatives: Addendorf Attorneys

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