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[2014] ZASCA 65
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Road Accident Fund v Faria (567/2013) [2014] ZASCA 65; 2014 (6) SA 19 (SCA); [2014] 4 All SA 168 (SCA) (19 May 2014)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 567/2013
Reportable
In the matter between:
ROAD ACCIDENT
FUND
........................................................................................
APPELLANT
and
FONESCA RUI FERNANDO
FARIA
................................................................
RESPONDENT
Neutral citation:
RAF
v Faria
(567/13)
[2014] ZASCA 65
(19
May 2014)
Coram
:
Maya,
Shongwe and Willis JJA and Van Zyl and Mocumie AJJA
Heard:
5
May 2014
Delivered
: 19 May 2014
Summary:
General
Damages –
Road Accident Fund Act 56 of 1996
as amended, read
with Regulations promulgated under the Act – ‘serious
injury’ to be determined in accordance
with procedure
prescribed in Reg 3 of the Regulations - RAF not bound by the
determination of a ‘serious injury’
by its own expert -
the high court wrongly awarded the plaintiff general damages.
ORDER
On appeal from:
South
Gauteng High Court, Johannesburg (Weiner J sitting as court of first
instance):
1 The appeal is upheld;
2 The order of the high court that the Road Accident Fund is to
pay the plaintiff the sum of R350 000 as general damages is set
aside.
JUDGMENT
Willis JA (Maya and Shongwe JJA and Van Zyl and Mocumie AJJA
concurring):
[1]
The appellant appeals with the leave of the South Gauteng High Court
(Weiner J). This case has to do with the substantive and
procedural
legal requirements that follow consequent upon the rejection by the
Road Accident Fund (RAF) of the assessment by one
of its own experts
that an injury which had been sustained in a motor collision is
‘serious’. In this regard,
there have been discordant
voices within the high court. Judicial dissonance in the high court
is antithetical to legal certainty,
one of the pillars of the rule of
law.
[1]
[2]
The issues arise from changes to the legislative scheme of the Road
Accident Fund Act 56 of 1996 (the Act), which took effect
on 1 August
2008. These changes were introduced by the Road Accident Fund
Amendment Act 19 of 2005 (the amendment Act) together
with Road
Accident Fund Regulations (the Regulations) promulgated in terms of
the Act, as amended.
[2]
In
particular, the points in question are concerned with the RAF’s
liability to compensate a third party for general damages
(or
non-pecuniary loss as it is referred to in s 17(1) of the amended
Act) in circumstances where the victim of a motor collision
has
suffered injuries which are described as ‘serious’ in
terms of s 17(1A) of the Act.
[3] The respondent in this appeal was the plaintiff in the high
court. I shall refer to him accordingly. Riding a bicycle at the
time, he was injured in a collision on 26 January, 2011. The
collision involved a motor vehicle having registration number SMN
449
GP driven by Ms J M Tladi. The accident occurred on Klipriver Road,
off Bellairs Drive, in Johannesburg. The RAF was liable
to compensate
the plaintiff in terms of the provisions of the Act.
[4] The plaintiff suffered a head injury, having been comatose for
four and a half days. In addition, he sustained injuries to his
right
shoulder, which required surgery; four fractured ribs on his right
hand side; abrasions to his back, shoulder and buttocks
and abrasions
to his knees, wrists and hands. The plaintiff sued the RAF in terms
of the Act, claiming damages in an amount of
R850 000.
[5] In its plea the RAF had disputed both the merits of the
plaintiff’s claim as well as the quantum of damages. At the
trial,
the RAF having had no witnesses to dispute the version of
plaintiff, was found by the high court to be liable to pay the
plaintiff
100% of his proven damages. There is no dispute that the
high court was correct in this regard.
[6] In respect of the quantum of damages suffered by the
plaintiff, the parties settled the claim for past medical expenses in
an
amount of R217 169.94. In respect of the claim for future medical
expenses, the RAF gave the usual undertaking in terms of s 17(4)
of
the Act. The only remaining issues in dispute were: (a) the question
of general damages for pain, suffering, loss of amenities
of life and
(b) the issue of the loss of future earnings arising from the
plaintiff’s diminished working capacity and productivity.
The
plaintiff decided to subsume the claim for damages for the loss of
future earnings under the claim for general damages.
[7] The plaintiff underwent a medico-legal assessment by an
orthopaedic surgeon, Dr De Graad on 30 April 2012. Dr De Graad
prepared
his medical-legal report on 3 May 2012. In addition, on the
same day, Dr De Graad completed a so-called RAF 4 ‘serious
injury
assessment’ (SIA) form (the significance of which form
will appear later). In paragraph 4 of this RAF 4 form, he assessed
the plaintiff’s impairment in respect of the rating of the
American Medical Association (AMA) as having a combined value
for the
impairment of the plaintiff’s whole person (WPI) as 4%.
[8] In terms of paragraph 5 of the RAF 4 form, which relates to
‘serious injury: narrative test’, Dr De Graad concluded,
pursuant more particularly to the provisions of subparagraphs 5.2 and
5.3 of the form, that the plaintiff’s injuries had
resulted in
a permanent serious disfigurement, attributable to extensive scarring
and a negatively affected physical appearance
at the right shoulder,
as well as a severe long-term mental or long-term behavioural
disturbance or disorder. As a result, Dr De
Graad concluded that the
plaintiff had indeed suffered a so-called ‘serious injury’,
the significance of which will
also appear later.
[9] The plaintiff attended a further medico-legal examination
undertaken by another orthopaedic surgeon, Dr G J H Swartz, who had
been appointed by the RAF. Dr Swartz did not complete an SIA form but
incorporated in his medico-legal assessment a reference to
the AMA
impairment rating, assessing the plaintiff’s impairment rating
for his whole person as 8%.
[10] Dr Swartz expressed the opinion in his report that the
plaintiff did not qualify for the ‘narrative test’ in
terms
of paragraph 5.1 of the RAF 4 form, which relates to long-term
impairment or loss of bodily function, but made no assessment of
the
plaintiff’s permanent serious disfigurement or severe long-term
mental or behavioural disturbances in terms of subparagraphs
5.2 and
5.3 of that form.
[11] On 20 January 2013, however, Drs De Graad and Swartz prepared
a joint minute in terms of which they agreed that the plaintiff
had
suffered disfigurement and psychological problems as a result of the
scarring at his shoulder and that, accordingly, the plaintiff
had
suffered a ‘serious injury’, resulting in ‘serious
long-term impairment’.
[12] On 8 March 2013, the day before the trial between the parties
commenced, the RAF’s attorneys sent a letter to the plaintiff’s
attorneys in terms of which the RAF rejected the RAF 4 form completed
by Dr De Graad ‘in terms of Regulation 3(3)
(d)(i)
’
(ie of the Regulations pertinent to this case).
[13] On 11 March 2013, a neuropsychologist, Dr A Cramer also filed
an RAF 4 SIA report, pursuant to her assessment of the plaintiff
on
26 October 2012. Dr Cramer, like Drs De Graad and Swartz, concluded
in subparagraph 5.3 of the report that the plaintiff had
suffered a
‘serious injury’, resulting in ‘serious long-term
impairment’.
[14]
In both the high court and this court the RAF relied strongly on the
following passage from
Road
Accident Fund v Duma
and
three similar cases
:
[3]
‘
The decision
whether or not the injury of a third party is serious enough to meet
the threshold requirement for an award of general
damages was
conferred on the Fund and not the court. That much appears from the
stipulation in reg 3(3)
(c)
that
the Fund is only be obliged to pay general damages if the Fund –
and not the court – is satisfied that the injury
has been
correctly assessed in accordance with the RAF 4 form as serious.
Unless the Fund is so satisfied the plaintiff simply
has no claim for
general damages. This means that unless the plaintiff can establish
the jurisdictional fact that the Fund is so
satisfied, the court has
no jurisdiction to entertain the claim for general damages against
the Fund. Stated somewhat differently,
in order for the court to
consider a claim for general damages, the third party must satisfy
the Fund, not the court, that his
or her injury was serious
.’
[15] The trial judge distinguished the facts in the present case
from those in
Duma
. She emphasised that it was apparent to her
that it was not in dispute that the injuries sustained by the
plaintiff were serious.
She held that the objections raised by the
RAF had fallen away by reason of the joint minute and therefore that:
‘
It would be
artificial to hold that simply because the defendant has objected to
the RAF 4 assessment that, irrespective of the
basis therefor, the
plaintiff must follow the procedure set out in Regulation 3
.’
[16] In her judgment, the trial judge said that:
‘
It is common
cause that both plaintiff’s doctors, being Dr De Graad and Ms
Cramer are medical practitioners, registered as
members of the
Medical and Dental Council. Both of them, in completing the RAF 4
forms, completed their assessments based upon
the AMA or WPI and
arrived at the decision that the plaintiff had reached MMI and that
the plaintiff’s injury was to be declared
serious.
They both, therefore, have complied
with the regulations and have submitted reports in accordance with
the decision in the
Duma
matter and in contrast to the
plaintiffs in such matter.
However, the defendant contends that
the fund has demonstrated, by filing its objection, that it is not
satisfied with the claimant’s
RAF 4 forms and it therefore
argues that it may direct that the claimant submit himself for a
further assessment to ascertain whether
the injury is serious, by a
medical practitioner designated by the fund. A list of medical
practitioners who had completed the
requisite training course and
were therefore qualified to perform the assessments was handed to the
Court, by consent. Drs De Graad,
Swartz and Ms Cramer appear thereon.
The distinguishing
feature in this case (in contrast to the facts in the
Duma
decision) arises as a result of the joint minute filed by the two
orthopaedic surgeons, Dr De Graad and Dr Swartz.
’
[17] The high court thereupon made an order that the plaintiff be
awarded general damages in an amount of R350 000. The parties had
agreed on this amount in the event that the high court found that it
could award general damages. The issue in this appeal is whether
it
was competent, as a matter of law, for the high court to have
decided, as it did, to award the plaintiff general damages in
the
circumstances of the case.
[18] Meanwhile, the RAF has paid the plaintiff the full amount
ordered by the court, including the sum of R350 000 which is in
contention.
The RAF did so, on 27 March 2013. The RAF later
discovered that it had mistakenly paid this amount of R350 000
awarded by the high
court for general damages. The RAF, now accepts,
however, that it would be unjust and inequitable to attempt to
recover this amount
and has given its irrevocable undertaking not to
seek to recover it from the plaintiff. Moreover, the RAF has
undertaken to pay
the plaintiff’s costs in the appeal. As
between the parties themselves, the issue has become moot.
[19] Unavoidably, the question has therefore arisen as to whether
the appeal should simply be dismissed for mootness in terms of
s
16(2)
(a)(i)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act) as
there is no longer any issue for
determination between the parties.
Section 16(2)
(a)(i)
of the
Superior Courts Act provides
that:
‘
When at the
hearing of an appeal, the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on that ground alone
.’
[20] Counsel for both parties accepted, however, that this case
raises an important question of law that are bound to arise again,
especially in view of the frequency with which the RAF is a litigant
in the high court and the pending cases awaiting judgment
in this
appeal: it is whether the Regulations provide for the RAF to reject
its own expert’s finding in respect of determining
a serious
injury and to require that there should be compliance with the
procedures provided for in the Regulations in determining
whether or
not an injury is ‘serious’.
[21]
The issue is indeed, as Mr Budlender, counsel for the RAF has
submitted, a ‘crisp’ one. He relied on this ‘crispness’
to contend that the heavy workload of this court would not be unduly
burdened in frustration of the mischief which
s 16(2)
(a)(i)
of the
Superior Courts Act was
designed to prevent.
[4]
Moreover, counsel for the RAF correctly pointed out that a ‘live
issue’ raising important questions of law which is
likely to
arise frequently in future has, for some time, been recognized by
this Court as justifying the exercise of a discretion
to allow the
appeal to proceed.
[5]
[22]
The present case deals with questions of law rather than fact. This
is a relevant consideration.
[6]
It is not in contention that, as the RAF has claimed, there are a
number of cases which have been postponed pending the outcome
of this
appeal. In
Meyer
v Road Accident Fund
[7]
Potterill J expressly disagreed with the correctness of Weiner J’s
decision, holding it to be inconsistent with
Duma
.
Mr Zidel, who appeared for the plaintiff, accepted that the issues
raised by this case were of such a nature that the appeal should
indeed be decided upon its merits rather than be dismissed on account
of its mootness between the parties themselves.
[23]
In the full context of the matter, it cannot be said that the appeal
will have no practical effect or result. On the contrary,
it will
have a practical effect on innumerable instances of litigation
involving the RAF as a litigant. In this regard,
Executive
Officer, Financial Services Board v Dynamic Wealth Limited &
others
[8]
has been instructive.
[9]
It is
in the public interest to hear the appeal, which involves statutory
interpretation, as there are a large number of similar
cases, both
existing and anticipated, in which this issue will need to be
resolved in the near future.
[10]
If this Court fails to decide this appeal on its merits, the
prevailing confusion will continue unabated: the question is
bound to arise again.
[11]
We have also had the benefit of full argument on the matter.
[12]
[24]
The considerations raised by both Mr Budlender and Mr Zidel justify
the exercise of a discretion against dismissing the appeal
merely
because it is now moot between the parties.
[13]
The merits of the appeal will, accordingly, be considered.
[25]
Subsequent to the judgment in the high court in this matter, the
Regulations were revised.
[14]
Other than that, in terms of revised
regulation 3(3)(
dA
),
the RAF is given 90 days within which to (i) accept the serious
injury assessment report or (ii) reject the report or (iii) direct
that the third party submit to a further assessment and, in terms of
revised subregulation 3(8)(
a
),
a time period for the referral of a dispute to the appeal tribunal is
provided for, the recent revision to the Regulations has
no bearing
whatsoever on the issues to hand.
[26] In terms of s 17(1) of the Act, after its amendment by the
amendment Act, a third party (ie person in the position of the
plaintiff)
is entitled to compensation for a non-pecuniary loss only
for ‘a serious injury as contemplated in subsection (1A)’.
Subsection 17(1A), in turn, stipulates that the assessment of a
‘serious injury’ must be undertaken by a medical
practitioner
by way of methods prescribed by the regulations.
[27] Subregulation 3(3)
(c)
provides that:
‘
The Fund or
an agent shall only be obliged to compensate a third party for
non-pecuniary loss as provided for in the Act if a claim
is supported
by a serious injury assessment report submitted in terms of the Act
and these Regulations and the Fund or an agent
is satisfied that the
injury has been correctly assessed as serious in terms of the method
provided for in these Regulations.
’
[28] Subregulations 3(1) and 3
(a)
to
(c)
require a
third party who wishes to claim general damages to submit an SIA
report in the prescribed form to the RAF. The SIA report
must be made
by a medical practitioner who must assess whether the third party’s
injury is ‘serious’ in accordance
with certain criteria:
(i) in terms of subreg 3(1)
(b)
(ii)
the third party’s injury shall be assessed as serious if it
resulted in 30% or more WPI as provided for in the AMA guidelines;
(ii) a ‘narrative test’ as
provided for in terms of subreg 3(1)
(b)
(i1).
[29] A ‘narrative test’ is used where the conclusion
is reached, in terms of subregulation 3(1)
(b)
(iii), that the
claimant has less than a 30% WPI, but the injury nevertheless:
‘
(aa)
resulted in a serious long-term impairment or loss
of a bodily function;
(bb)
constitutes permanent serious disfigurement;
(cc)
resulted in severe long-term mental or severe
long-term behavioural disturbance or disorder; or
(dd)
resulted in loss of a foetus.
’
[30] Subregulation 3(3)
(d)
provides that:
‘
If the Fund
[RAF] or an agent is not satisfied that the injury has been correctly
assessed, the Fund or agent must:
(i)
reject the serious injury assessment report
and furnish the third party with reasons for the rejection; or
(ii)
direct that the third party submit himself
or herself, at the cost of the Fund or an agent, to a further
assessment to ascertain
whether the injury is serious, in terms of
the method set out in these Regulations, by a medical practitioner or
an agent.’
During the course of argument, Mr Zidel fairly and correctly
conceded that the RAF has three options available to it if it is not
satisfied with the assessment of an injury. These are, as set out
above: (i) accept the serious injury assessment report or (ii)
reject
the report or (iii) direct that the third party submit to a further
assessment.
[31] In terms of subregulation 3(3)
(e)
:
‘
The Fund or
an agent must either accept the further assessment or dispute the
further assessment in the manner provided for in these
Regulations
.’
The fact that this provision is preceded by subregulation
3(3)
(d)
(ii) which provides that the further assessment is to
be undertaken ‘by a medical practitioner designated by the
fund’
can only mean, as Mr Zidel was bound to concede, that the
RAF not only has a right, in terms of the Regulations, to dispute the
assessment of its own medical practitioner (expert) but also
has a right to refer the dispute to the Appeals Tribunal provided
for
in the Regulations.
[32] The dispute resolution procedure is provided for in
subregulation 3(4), read together with subregulations 3(5), 3(7),
3(8),
3(10) 3(11), 3(12) and 3(13). There is no other. The dispute
resolution procedure in the Regulations culminates in a determination
by an Appeal Tribunal consisting of three medical practitioners
appointed by the Registrar of the Health Professions Council. In
terms of subregulation 3(13), the determination of the Appeal
Tribunal ‘shall be final and binding’. The dispute
resolution
procedure, travelling all the way to the Appeal Tribunal,
is not provided purely for the benefit of a dissatisfied claimant. It
avails to the advantage of the RAF as well.
[33]
In
Road
Accident Fund v Lebeko
[15]
this Court held that, in the absence of the prescribed assessment
having been made in terms of the Regulations, the high court
could
not make an order for the payment of general damages.
[16]
It was held that the high court ought to have postponed the hearing
in regard to the claim for general damages so that the procedures
for
which legislative provision had been made in this regard could be
completed.
[17]
In similar
vein, Mr Budlender has correctly contended that this is what the high
court ought to have done in the present case.
In view of the mootness
of the issues between the parties themselves, however, he has sought
no order to this effect in substitution
of the high court’s
order. He has asked simply that the high court’s order relating
to the award for general damages
be set aside.
[34] The amendment Act, read together with the Regulations, has
introduced two ‘paradigm shifts’ that are relevant to
the
determination of this appeal: (i) general damages may only be awarded
for injuries that have been assessed as ‘serious’
in
terms thereof and (ii) the assessment of injuries as ‘serious’
has been made an administrative rather than a judicial
decision. In
the past, a joint minute prepared by experts chosen from the
contending sides would ordinarily have been conclusive
in deciding an
issue between a third party and the RAF, including the nature of the
third party’s injuries. This is no longer
the case. The
assessment of damages as ‘serious’ is determined
administratively in terms of the prescribed manner and
not by the
courts. Past legal practices, like old habits, sometimes die hard.
Understandably, medical practitioners, lawyers and
judges experienced
in the field may have found it difficult to adjust. As the colloquial
expression goes, ‘we are all on
a learning curve’.
[35]
Neither
Duma
nor
Lebeko
dealt with a joint minute, prepared by experts from both sides, on
the question of whether the injuries were ‘serious’
or
not. As
Duma
makes clear, in terms of the amendment Act and the Regulations, the
position is now that ‘unless the Fund is so satisfied
[ie that
the injuries are ‘serious’] the plaintiff simply has no
claim for general damages’; that ‘unless
the plaintiff
can establish the jurisdictional fact that the Fund is so satisfied,
the court has no jurisdiction to entertain the
claim for general
damages against the Fund’ and ‘for the court to consider
a claim for general damages, the third party
must satisfy the Fund,
not the court, that his or her injury was serious’.
[18]
These clear statements of law entail that a joint minute of the kind
in question does not, as in the past, enable the court to
take a
shortcut to concluding that the injury was ‘serious’.
[36] The trial judge may have been exasperated by the stance taken
by the RAF. This does not justify a departure from recognising
that,
under the new legislative scheme, the RAF is not bound by the views
of its own expert. The principle is not necessarily either
abstract
or ethereal: as Mr Budlender correctly submitted, the fact that
within a period of two months its own expert changed his
view that
the injury was not ‘serious’ to one that it was, is
indicative of some uncertainty in the matter that may
justify further
exploration. The high court wrongly decided to award the plaintiff a
sum of money for general damages.
[37] The following order is made:
1 The appeal is upheld;
2 The order of the high court that the
Road Accident Fund is to pay the plaintiff the sum of R350 000 as
general damages is set
aside.
________________
N P Willis
Judge of Appeal
APPEARANCES:
For the Appellant: S Budlender (with him, P
Ramano and E. Webber)
Instructed by:
Routledge Modise Inc, Sandton
c/o Hutchison Attorneys, Bloemfontein
For the Respondent: I J Zidel SC (with him, E Soares)
Instructed by:
Wolmarans attorneys, Randburg
c/o Van der Merwe & Sorour, Bloemfontein
[1]
For a sterling account of the importance of legal certainty see
Cassell
& Co Ltd v Broome & another
[1972]
AC 1027
esp at 1054C-D; [1972] 1 All ER 801 esp at 809f-g
(HL).
[2]
GN R770, GG 31249, 21 July 2008.
[3]
Road
Accident Fund v Duma
2013
(6) SA 9
(SCA) para 19.
[4]
See,
in this regard,
ABSA
Bank Ltd v Van Rensburg & another; In Re: ABSA Bank Limited v
Maree & another
(228/2013)
[2014] ZASCA 34
(28 March 2014) para 11.
[5]
See
ABSA
Bank Ltd v Van Rensburg & another; In Re: ABSA Bank Limited v
Maree & another
(
supra
)
para 8;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA) para 4;
Coin
Security Group (Pty) Limited v SA National Union for Security
Officers & others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 8;
National
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 444J-445B and
Sun
Life Assurance Company of Canada v Jervis
[1944] AC 111
at 114;
[1944] All ER 469
at 470g-471h (HL). See, by
way of contrast,
Port
Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA) para 10.
[6]
See
Port
Elizabeth Municipality v Smit
(
supra
)
para 10.
[7]
Meyer
v Road Accident Fund
[
2013]
ZAGNPHC 446 (4 December 2013) paras 7 to 9.
[8]
Executive
Officer, Financial Services Board v Dynamic Wealth Limited &
others
2012 (1) SA 453
(SCA) paras 43 and 44 and
SA
Congo Oil Co (Pty) Limited v Identiguard International (Pty) Limited
2012 (5) SA 125
(SCA) para 6.
[9]
See
also
Sebola
& another v Standard Bank of South Africa Limited
2012 (5) SA 142
(CC) para 34 and
MEC
for Education, Kwazulu-Natal & others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) paras 32-35.
[10]
See
R
v Secretary of State for the Home Department, Ex parte Salem
[1999] 2 All ER (HL) at 47d-f;
Executive
Officer, Financial Services Board v Dynamic Wealth Limited &
others
(
supra
)
para 44;
SA
Congo Oil Co (Pty) Limited v Identiguard International (Pty)
Limited
(
supra
)
para 5 and
Midi
Television (Pty) Limited t/a eTV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para 4.
[11]
Ibid.
[12]
See
Sebola
& another v Standard Bank of South Africa Limited
(
supra
)
para 37;
Midi
Television (Pty) Limited t/a eTV v Director of Public Prosecutions
(Western Cape)
(
supra
)
para 4. See, by way of contrast,
ABSA
Bank Ltd v Van Rensburg & another; In Re: ABSA Bank Limited v
Maree & another
((
supra
)
para 12;
Port
Elizabeth Municipality v Smit
(supra) para 11;
Western
Cape Education Department and Another v George
1998
(3) SA 77
(SCA) at 84E.
[13]
See
Minister
of Trade and Industry & another v EL Enterprises & another
2011 (1) SA 581
(SCA) para 2 and
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) paras 6 and 7.
[14]
GN
R347, GG 36452, 15 May 2013.
[15]
Road
Accident Fund v Lebeko
(802/2011)
[2012] ZASCA 159
(15 November 2012).
[16]
Para
27.
[17]
Para
28.
[18]
Road
Accident Fund v Duma
2013
(6) SA 9
(SCA) para 19.