Pretoria - The Road Accident Fund (RAF) will have to pay nearly R13 million in damages to a woman who suffered severe brain damage in a car accident that had put an end to her ambitions to become an actuary.
The RAF had never opposed the claim, resulting in the court issuing a default judgment in favour of the victim. Under the order, the fund had to pay her just short of R13m.
Subsequently, it appeared that the RAF knew nothing about the order against it.
It became aware of it only when the victim’s counsel turned to court to compel the RAF to pay.
The RAF opposed that application and said it would turn to court to have the order rescinded. This was never done and now the RAF had launched an application before the Gauteng High Court, Johannesburg, to appeal the default judgment.
But the court had put its foot down and said it was impossible in law to appeal an order, as a default of appearance was not appealable.
The court noted that the victim, a Ms Lee’s lawyers, had given the RAF every opportunity to defend the initial damages claim but the fund had never reacted. The RAF had not pitched at court to defend the matter.
A judge had subsequently ordered the fund (in its absence) to pay the damages.
Judge Stuart Wilson said that for a while, it had appeared “lost” on the RAF’s employees that judgment had been taken against it.
“The RAF’s employees continued to invite Ms Lee to respond to its offer on general damages, and to attend appointments with experts that the RAF had employed to assess the quantum of her loss of earning capacity.
“Each invitation was met by Ms Lee’s attorney’s polite but firm insistence that Ms Lee had obtained a court order and that she intended to enforce it,” the judge said.
Only a few days after the judgment, it appeared to have dawned on the RAF that there was a judgment against it, the judge said.
The State attorney had eventually assured Lee’s attorney that the RAF had accepted that it had to comply with the order, but it had then asked her to abandon some of her claims.
When Lee had refused, the RAF had again assured her that payment would be made under the court order. When the RAF had done nothing to honour the undertaking,
Lee’s attorney had brought an application to compel the “loading” of the payment due onto the RAF’s payment system.
That had drawn a further response from the State attorney, who had then said the RAF would be opposing the application to compel. He had said the RAF had resolved to ask for the original order to be rescinded. By that time, it had been eight months since the court ordered the fund to pay the damages.
“Ever the model of patience, Ms Lee’s attorney agreed to remove the application to compel payment from the roll in order to allow the RAF to bring its rescission application,” Judge Wilson said.
That never happened. Instead, the RAF had filed an application for leave to appeal the order.
The judge made it clear that an order granted in a party’s absence was not appealable. He said the RAF’s application in that regard was wirregular and wrong in law.
Pretoria News