RAF – EXECUTOR’S CLAIM ON GENERAL DAMAGES
RAF – Plaintiff passing away and substituted with executor – General damages claim is not transmitted to a deceased estate if the deceased passes prior to litis contestatio – Majority decision in Nkala developing the common law in blanket fashion not followed – Executor’s claim on general damages dismissed.
Ngubane v Road Accident Fund [2022] ZAGPJHC 275 at [35]-[41]
A motor vehicle collision occurred in 2019 where the plaintiff was struck down by a car while crossing an intersection. Summons was served in 2020 for a claim against the Road Accident Fund (RAF). The plaintiff passed away in 2021 and was lawfully substituted as plaintiff with the executor of his estate. Through all of this, the RAF never entered an appearance to defend. As a result of the RAF never having entered the fray, pleadings never closed and litis contestatio was never reached. When the matter was called the Judge enquired from counsel whether the plaintiff’s claim for general damages had in fact transferred onto his deceased estate, to be pursued by the Executor in the circumstances of this case. Counsel could not provide the answer, so the matter was stood down that counsel could consider the issue and make submissions on the point.
Thompson AJ discusses the common law, where a claim for general damages only transfers to a deceased estate if litis contestatio had been reached; the case of Nkala v Harmony Gold Mining Company (GJ) where the the parties who sought certification of a class action also challenged the common law principle against transferability of a general damages claim prior to litis contestatio having been reached. The majority judgment found that the common law should be developed as a whole in respect of all claimants and defendants across the entire spectrum of general damages, irrespective of whether the cause of action arose from the class action sought to be certified, a Road Accident Fund claim, a medical negligence claim or any other claim in respect of which a general damages claim could be sustained. The minority, per Windell J, agreed with the majority that the common law should be developed, but was of the opinion that the development should happen incrementally and be limited to the class action before it.
The court finds that the development of the common law as per the majority in Nkala has not found universal acceptance in our law and divergent approaches remain. The measured and cautionary approach as per the minority in Nkala was preferable above the majority’s blanket approach. No proper binding development of the common law in relation to general transmissibility of general damages claims have taken place and the existing Supreme Court of Appeal authorities on transmissibility of general damages claims remain binding.
The executor’s claim on general damages was dismissed.
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ARREAR MAINTENANCE AND RETIREMENT FUNDS
Family – Maintenance – Warrant of execution obtained ex parte for arrears – Based on maintenance court order – Retirement funds withdrawn – No mechanism for notice to ex-husband or for the resolution of a dispute over the quantum.
VDB v VDB [2022] ZAGPJHC 271at [23]-[26]
After a divorce, the settlement agreement provided that the applicant would pay maintenance at the rate of R20,000 per month per child, plus medical and educational expenses. He fell into arrears and claims that he lost a portion of his income due to the Covid-19 pandemic. He later received a notification from Discovery that a substantial deduction had been made from his retirement annuity. The amount was withdrawn following an ex parte application by the respondent, apparently based on a schedule of arrear maintenance. There was no prior notice that funds would be withdrawn. A month later he received a Whatsapp from the respondent that she intended to effect another withdrawal. He approaches the court on an urgent basis, concerned that the early withdrawal has substantially decreased the value of his investment and is highly prejudicial to him. He has joined Discovery as second respondent and Stanlib Investments as third respondent, because he also has an investment there that he wishes to protect.
Siwendu J discusses the applicant’s claim that it is unfair for such application for withdrawal of the funds to be made without notice to him and without any opportunity granted to him to make representations to the court; the contention that the method of execution used by the first respondent, which she threatens to use again without notice, is to apply for a warrant of execution on an ex parte basis, which warrant is used to obtain payment directly out of the applicant’s retirement annuity fund.
The writ was issued by the Magistrate’s Maintenance Court and under the provisions of the Maintenance Act 99 of 1998. Where there is a pre-existing maintenance court order, there is no mechanism to resolve a dispute about the quantum owing before the issue of a writ nor a requirement for a notice before the issue of such a writ. The Legislature saw it fit not to afford the applicant a right to a notice before the issue of a writ of execution.
The application was dismissed.
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ARBITRATION – PALABORA PRINCIPLE AND SLIP RULE
Arbitration – Appeal panel exceeding powers in costs order – Slip Rule – Palabora principle – Not preventing case from being fully and fairly determined – Whether panel ignored grounds of appeal and determined appeal on basis introduced by themselves – Arbitration Act 42 of 1965, s 33(1)(b).
Kruinkloof Bushveld Estate v Appeal Arbitrators [2022] 20-18332 (GJ) at [31]-[36]
A dispute arose between the Kruinkloof homeowners and Ms Adlam, a member of Kruinkloof over the amount owed for monthly levies, penalty levies and interest. The dispute was referred to arbitration where Kruinkloof secured an award in its favour. Ms Adlam appealed the arbitration award and was successful in her appeal. The Appeal Panel found Ms Adlam to be indebted to Kruinkloof in the sum of R72,000 and not R1,4 million. Kruinkloof seeks the reviewing and setting aside of the award of the Appeal Panel in terms of s 33(1)(b) of the Arbitration Act 42 of 1965.
Opperman J discusses the effect of the Appeal Panel having exceeded its powers concerning the award of costs on the remainder of their award – it was conceded that the Appeal Panel exceeded its powers in ordering Kruinkloof to pay the costs of the arbitration proceedings unrelated to the dispute before the Appeal Panel; an “accidental slip” and the slip rule; the assessment of the error; and the prerequisites for the Palabora principles from the case of Palabora Copper v Motlokwa Transport Construction.
The court then considers the Kruinkloof contention that the Appeal Panel exceeded its powers by ignoring the grounds of appeal and determining the appeal on the basis introduced by themselves, which formed no part of the lis between the parties; the Hos+Med and Telcordia cases; whether what the Appeal Panel was empowered to decide was circumscribed by the grounds of appeal in the notice of appeal; and whether the reasons are part of the award.
The review application is dismissed. The accidental slip regarding the costs is corrected.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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