Court name
High Court
Case number
1704 of 2009
Case name
Hangula v Motor Vehicle Accident Fund
Media neutral citation
[2012] NAHC 108
Judge
Damaseb JP












REPUBLIC
OF NAMIBIA


Reportable”








CASE NO. I
1704/2009








HELD AT THE HIGH
COURT OF NAMIBIA, MAIN DIVISION








In the matter
between:








GIDEON HANGULA
….............................PLAINTIFF
/ RESPONDENT








and








THE MOTOR VEHICLE
ACCIDENT FUND ….............DEFENDANT
/ APPLICANT








CORAM:
DAMASEB, JP








Heard: 20 September
2011



Delivered: 18 April
2012



EXCEPTION



JUDGMENT



DAMASEB, JP:
[1]
On 25 February 2011, the plaintiff instituted action against the
defendant by way of combined summons. The claim was served on the
defendant on 3 March 2011 and is based on a motor vehicle collision
that took place on 25 August 2009 along the highway between Karibib
and Okahandja.








[2] The plaintiff
alleges in his particulars of claim that the accident was caused by
the negligent driving of a third party, Alpers Friedrich, who at the
time drove the vehicle that collided against that of the plaintiff
1.
As a result of the accident, the plaintiff alleges, that he sustained
bone fracture of the leg and was admitted to hospital for
rehabilitative medical care. He alleges that he also suffered loss of
income due to a diminished earning capacity while recovering from the
injuries and still experiences severe pain and discomfort as well as
recurring and permanent pain and discomfort.








[3] The plaintiff
alleges that following the accident and the injuries sustained as a
consequence, he lodged a claim with the defendant in terms of the
Motor Vehicle Accident Fund Act
2(hereinafter
referred to as “the Act”), and that the defendant, acting
through its officials, repudiated the claim for the payment of
benefits, excepting for benefits towards medical attention and
expenses. It is the plaintiff’s case that the defendant had
acted wrongfully and unlawfully in repudiating the claim for loss of
income alternatively loss of earning capacity; a cash grant as
compensation for injury; an undertaking to pay for medical treatment
or injury management as well as rehabilitation; and reimbursement for
costs reasonably incurred by the plaintiff in the provision of
services
3.
He then seeks the following relief, allegedly in terms of sec. 32(4)
of the Act:








(i) an order that the defendant
is liable to plaintiff in terms of sec.24 and must proceed to make a
determination of the benefits in terms of sec.25;



(ii) alternatively an order that
the defend is liable to plaintiff in terms of sec 24 and must proceed
to make a determination to award benefits in accordance with sec. 25
at such reduced levels as accords with the court's determination of
the claimant's contribution to the accident, injury or death(sic).








[4] Having defended
the matter, the defendant’s legal practitioner of record
requested further particulars in the following terms:








(i) on what basis does plaintiff
claim for loss of income alternatively loss of earning? Full details
and proof is required thereof.



(ii) on what basis does plaintiff
claim for medical treatment and rehabilitation? Full details of
expenses and proof is required thereof.



(iii) on what basis does
plaintiff claim for reimbursement for cost reasonably incurred? Full
detail and proof is required thereof.



(iv) On what basis does plaintiff
claim cash grant as compensation for injury? Full details and proof
is required thereof.



(v) On what basis does plaintiff
allege that the repudiation and refusal by defendant is wrongfully,
unlawfully and that defendant failed, neglected and refused its
liability and determination thereof?’(Sic)








[5] In reply, the
plaintiff provided the following particulars:








1. loss of
income by reason of interrupted, diminished or terminated earning
capacity as contemplated under sections 25(1)(a) thereof;



2. a cash
grant for the physical injury suffered for the pain and suffering as
contemplated under section 25(1)(c);



3. an undertaking towards future
medical treatment for injury management and rehabilitation as
contemplated under section 25(1)(d) and (e) thereof; and



4. reimbursement for cost
reasonably incurred by the plaintiff in the provision of service as
contemplated under section 25(1)(i) thereof.








[6] The defendant
then excepted to the particulars of claim filed by the plaintiff on
the ground that same is bad in law and does not disclose a cause of
action. The defendant relies on rule 18(10) of the rules of the High
Court which requires a plaintiff suing for damages to specify the
nature, effect and extent of the injuries, as well as the duration of
the disability alleged to have given rise to such damages. Still
relying on rule 18(10), the defendant further points out that the
plaintiff did not indicate the income lost to date as a result of the
injuries to enable the defendant to make any determination in terms
of the Act.








[7] The defendant
also takes the view that in terms of sec. 32(3) of the Act, the
plaintiff had failed to allege on what basis the High Court has
jurisdiction in this matter. Additionally, the defendant states that
the relief claimed by the plaintiff has the effect of a mandamus
in that it compels the defendant, a public body, to perform its
statutory duties; and that such relief ought to have been sought by
way of application and not action proceedings.








[8] The plaintiff
had elected not to amend the particulars of claim after the exception
was taken and chose to oppose the exception. That necessitated
adjudication of the exception.








[9] At a case
management hearing the parties waived their right to oral argument
and were directed to file written heads of argument, whereafter
judgment would be deemed reserved. The defendant filed its heads of
argument as directed, but the plaintiff failed to and has not sought
any extension of time to file the heads as agreed and directed.








Lack of
jurisdiction



[10] Section 32(3)
of the Act reads:







Despite
any law to the contrary, where the cause of action is founded on a
repudiation of liability or a dispute regarding the claimant’s
contribution to the accident, injury or death giving rise to the
claim, proceedings may be instituted in a court of competent
jurisdiction.’











It is
this provision that provides fodder for the claim on behalf of the
defendant that the particulars of claim must have included (but
failed to include) an allegation that the claim falls within the
jurisdiction of the High Court. The point has no merit. That the High
Court has jurisdiction must be clear on the face of the pleadings,
even if not specifically pleaded. The only circumstance in which this
Court has no jurisdiction in a civil case is if the defendant
(respondent) is a
peregrine.4
In the present case
the following is apparent from the pleadings:












  1. Both the plaintiff
    and the defendant are incolae of this Court.



  2. The accident
    founding the cause of action occurred between Karibib and Okahandja,
    a location which this court is entitled to take judicial notice as
    falling within the boundaries of Namibia.
















[11] Section 16 of
the High Court Act
5
states as follows:







The High Court shall have
jurisdiction over all persons residing or being in and in relation to
all causes arising and all offences triable within Namibia and all
other matters of which it may according to law take cognizance …”











Besides, sec. 22 of
the High Court Act states that the civil process of the High Court
shall run throughout Namibia. The lack of jurisdiction point is not
only bad in law but is frivolous and placed an unnecessary burden on
the court to deal with it. It deserves censure.







[12]
The exception filed on 13 April 2011 makes no mention of the claim
being prescribed. But in the heads of argument subsequently filed,
prescription is raised in respect of the claim and as a basis for the
court’s lack of jurisdiction. Raising prescription in heads of
argument and not in the exception amounts to trial by ambush. It is
trite that an excipient is confined to the grounds put forth in the
exception.
6
The lengthy
arguments advanced on prescription do not avail the defendant who did
not raise it squarely in the exception. This conduct too deserves
censure.











Form of
proceedings







[13]
The other objection raised by the exception is that the present
proceedings should have been brought by way of motion because (i) no
disputes are anticipated and (ii) it is in the nature of a
mandamus.
It is added for good measure that motion proceedings are faster and
less costly compared to action proceedings. I am not aware of any
rule of law, and none has been pointed out to me, that supports the
view that a proceeding must be dismissed because it was brought by
way of action when motion proceedings would have been more convenient
and cost effective. In my view it is a sort of consideration that is
more appropriately had regard to when the court reaches the stage of
apportioning costs. As was observed by Murray JP in
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155(T)at 1162
:







Where
no real dispute of fact exists there is no reason for the incurrence
of the delay and expense involved in a trial action and motion
proceedings are generally recognised as permissible.”











It is
trite that even where a statute makes provision for proceedings to be
initiated by way of motion it does not exclude proceedings to be
brought by way of action.
7
A fortiori, where a
statute does not expressly provide for motion proceedings, there can
be no bar in principle to proceeding by way of action. I can put the
principle no higher than this: a party choosing a costlier way of
litigating runs the risk of being mulcted in costs if it transpires
at the end of the day that there was a much more convenient and less
costly alternative available. That said, this objection too borders
on being frivolous and deserves censure.








Particulars not
disclosing cause of action



[14] The next issue
falling for decision is whether the particulars of claim filed of
record contain the necessary averments to sustain a cause of action.
The defendant excepted to the plaintiff’s particulars of claim
on the basis that it lacks averments necessary to sustain an action
and or failed to disclose a cause of action; alternatively are vague
and embarrassing. Being a delictual claim, the defendant argues, the
plaintiff’s claim should comply with rule 18(10) of the Rules
of Court to sustain a cause of action. Rule 18(10) reads:








A plaintiff suing for
damages shall set them out in such a manner as will enable the
defendant reasonably to assess the quantum thereof:
Provided
that a plaintiff suing for damages for personal injury shall specify
the nature and extend of the injuries, and the nature, effects and
duration of the disability alleged to give rise to such damages
,
and shall as far as practicable
state
separately what amount
,
if any,
is claimed
for-




  1. Medical costs and hospital and
    other similar expenses;



  2. Pain and suffering;



  3. Disability in respect of-





  1. The earnings of income(stating
    the earnings lost to date and the estimated future loss)



  2. The enjoyment of amenities of
    life (giving particulars).









[15] The defendant’s
counsel argues that the plaintiff’s claim is an illiquid
delictual one, not being a claim for a debt, and therefore the
quantum of damages allegedly suffered should have been alleged in the
particulars of claim. The complaint encapsulated in this exception is
that the particulars of claim lack sufficient information to allow
defendant to plead or are, in the alternative, vague and
embarrassing.








[16] In adjudicating
an exception the Court must accept the correctness of the facts as
alleged by the plaintiff. The test that I must apply is this:
notwithstanding the truth of the facts alleged, do those facts in law
establish any sufficient case? If they don’t, the exception is
good and must be allowed. As Parker J so eloquently put it in
Motor
Vehicle Accident Fund v July
8:



'The crisp question to determine
is essentially this: is the defendant's contention that the
plaintiff's pleading objected to, taken as it stands, legally invalid
for its purpose well founded?
9








[17] It was held in
Denker
v Cosack
10
that the remedy of
exception is only available where an exception goes to the root of a
claim or defence
11
and that the main
purpose of an exception that a claim does not disclose a cause of
action is to avoid leading unnecessary evidence at the trial.
12
In that case HOFF J
held
13
that an excipient
has a duty to persuade the court that, upon every interpretation that
the particulars of claim can reasonably bear no cause of action is
disclosed and further that the court, for the purposes of an
exception, takes the facts as alleged in the pleadings as correct. As
was observed in
McKelvey
v Cowan NO
14:








It is a first principle in
dealing with matters of exception that, if evidence can be led which
can disclose a cause of action alleged in the pleadings, that
particular pleading is not excipiable. A pleading is only excipiable
on the basis that no possible evidence led on the pleading can
disclose a cause of action.’



[18] Rule 18(10)
requires all necessary averments to be alleged in particulars of
claim and to include the extent, amount and the effect of the damages
suffered. That is to enable the defendant to reply thereto and to
assess the
quantum
of such damages. In
order to disclose a cause of action, the plaintiff’s pleading
must therefore set out every material fact which it would be
necessary for the plaintiff to prove, including damages, in order to
support the right to judgment of the court. It was held in
Grindrod
(Pty) Ltd v Delport
15,
that to comply with
rule 18 (10), it behoves a plaintiff suing for damages to set them
out in such a way as will enable the defendant reasonably to assess
the
quantum
thereof, even if the
additional information to be provided involves interpretation of
facts and opinion of professional advisors. The plaintiff sought
leave to amend its declaration
inter
alia
annexing
a written report from a firm of auditors explaining in detail how the
plaintiff’s damages claims were formulated and quantified. The
court granted plaintiff leave to amend the declaration by annexing
eight medical reports running to 52 pages in order to comply with
rule 18(10). The
ratio
decidendi
for
the decision is that rule 18(10) enjoined a party claiming damages to
provide sufficient information to enable the opposing party to know
why the particular amount being claimed as damages was in fact being
claimed.



[19] In favour of
the plaintiff I must accept the following facts to be correct:



(a) He was involved
in an accident.



(b) He sustained
injuries as a result of the accident.



(C) He was admitted
to hospital for rehabilitative care.



(d) He suffered loss
of income.








Section 25 of the
Act determines what the plaintiff is entitled to claim as a result of
injuries suffered in the motor vehicle accident. As far as it relates
to him those are:








(a) reimbursement of
income lost as a result of being unable to secure employment;



(b) cash payment as
compensation for injury including loss of earning capacity;



(c) reimbursement of
costs of medical treatment;



(d) an undertaking
to pay for future medical treatment for injury management in
accordance with a treatment plan;



(e) an undertaking
to pay for rehabilitation;



(f)an undertaking to
pay for life enhancement in accordance with an approved plan;



(g) reimbursement of
costs reasonably incurred in the provision of a service to a person
entitled to an award
16.








Yet no specific
amount is being claimed as the plaintiff fails to quantify the claims
that obviously sound in money. He quite improperly also does not
specify when and towards whom future medical care is owed or costs
are or will likely reasonably be incurred in the provision of
services to him.








[20] In a nutshell,
in the way the plaintiff has pleaded, the defendant will not be able
to reasonably assess the quantum of damages in respect of the
benefits the plaintiff claims he is entitled. The failure to provide
the information sought in further particulars is all the more
troubling. No additional information or opinion evidence in support
of the damages allegedly suffered has been presented by the plaintiff
in support of his claims. A bald statement of broad principles as to
the basis on which the damages have been claimed will not satisfy the
requirement of adequate quantification. The plaintiff ought clearly
to have indicated the damages suffered as a result of the collision
and the expenses incurred and specified the persons in respect of
whom he expects to be indebted for future medical care; or the extent
of the expenses reasonably incurred in the provision of services. He
has failed to do so and in the result the particulars of claim are
excipiable.








[21] Section 32 (4)
(a) and (b) of the Act states that in any action brought against the
Fund (in the event the plaintiff is unsuccessful) the court may order
absolution from the instance or dismiss the claim and make an
appropriate order as to costs. For the reasons I have set out in the
body of the judgment, I do not propose to grant the plaintiff costs.








[22] I therefore
make the following order:




  1. The exception is
    allowed.



  2. The defendant is
    granted absolution from the instance.



  3. There is no order
    as to costs.














_______________________



DAMASEB, JP



ON BEHALF OF THE
PLAINTIFF/RESPONDENT: Mr AEJ Kamanja



Instructed by: SISA NAMANDJE &
CO INC.








ON BEHALF OF THE
DEFENDANT/APPLICANT: Mr P S Muluti








Instructed by: MULUTI &
PARTNERS













1See
section 24 of the Motor Vehicle Accident Fund Act, no. 10 of 2007.





2Act
No. 10 of 2007.




3It
is not immediately apparent what services he could, or provided, to
himself.




4Compare,
SOS –Kinderdorf International v Effie Lentin Architects
1990 NR 300 at 303A-J.





5Act
No 16 of 1990





6Wicksteed
and Others v George
1961 (1) SA 651(FC).





7See,
Food & Nutritional Products (Pty) Ltd v Neumann 1986 (3)
SA 465 (W); Adfin (Pty) Ltd v Durable Engineering Works (Pty) Ltd
1991 (2) SA 366; Howard v Herrigel 1991 (2) SA 660 (A).





82010
(1) NR 368 at 371 para 8.





9See,
Salzmann v Holmes 1914 AD 152 at 156.'




102006
(1) NR 370 at 373H.





11Lampert-Zakiewicz
v Marine & Trade Insurance Co Ltd
1975 (4) SA 597 (C) at
599F-G; Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA
700 (A) at 706).





12Barclays
National Bank Ltd v Thompson
1989 (1) SA 547 (A) at 553G-I.





13At
374A-B





141980
(4) SA 525 (Z) AT 526





151997
(1) SA 342 (W) at 347.




16Assuming
(which is doubtful) that he can personally claim for such services.





15