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[2012] ZAECPEHC 27
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Paterson obo Nzwana v Road Accident Fund and Another (579/2009) [2012] ZAECPEHC 27; 2013 (2) SA 455 (ECP) (26 April 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE
NO.: 579/2009
In
the matter between:
ADVOCATE
NEIL MUIR PATERSON
OBO
BAMBILE NZWANA
…............................................................................
Applicant
AND
ROAD
ACCIDENT FUND
…................................................................
First
Respondent
JACOB
MODISE
…........................................................................
Second
Respondent
JUDGMENT
MALUSI,
AJ
[1] This is an
application for the first respondent to provide an undertaking as
contemplated in Section 17(4) of the Road Accident
Fund Act, 56 of
1996 (“The Act”).
[2] The applicant is
the
curator ad litem
appointed to act on behalf of Bambile Nzwana
(“Nzwana”). The first respondent is the Road Accident
Fund. The second
respondent is the Chief Executive Officer of the
first respondent.
[3] It is common cause
between the parties that Nzwana was injured in a motor vehicle
collision on 27 June 2006 in Port Elizabeth
while at work as a pipe
layer on the roadside. On 8 June 2010 this Court ordered (by
agreement) per Kroon J that merits be heard
separately. The same
order provided that the first respondent conceded the merits and
agreed to pay Nzwana 100% of his proven or
agreed damages.
[4] On 4 August 2010 this
Court made the following order amongst the others (by agreement) per
Revelas J that:-
“
1.
The
Defendant furnish First Plaintiff with an Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for the
costs of future accommodation of,
the
patient
,
Bambile
Nzwana
in a hospital or nursing home, or treatment of or rendering of a
service to him or supplying of goods to him arising out of the
injuries sustained by him
in
the motor vehicle collision on 27 June 2006
after such costs have been incurred and upon proof thereof. (my
underlining)
[5] 5.1 Section 17(4) of
the Act provides that:-
(4) Where a claim for
compensation under subsection (1)-
(a) includes a claim for
the costs of the future accommodation of any person in a hospital or
nursing home or treatment of or rendering
of a service or supplying
of goods to him or her, the Fund or an agent shall be entitled, after
furnishing the third party concerned
with an undertaking to that
effect or a competent court has directed the Fund or the agent to
furnish such undertaking, to compensate-
(i) the third party in
respect of the said costs after the costs
have
been incurred and on proof thereof; or
(ii)
.....
in accordance with the
tariff contemplated in
subsection (4B)
5.2 A reading of Section
17(4) (a) of the Act reveals that the wording of the order of Revelas
J is the same as that in the section
save for the inclusion of
Nzwana’s name, the cause of his injuries and the date those
were sustained as underlined in paragraph
4 above.
[6] On 3 December 2010
the first respondent provided the applicant with an undertaking
purportedly in terms of Section 17(4)(a)
of the Act as ordered by
this Court. The relevant portion of the purported undertaking reads:
“
NOW
THEREFORE
the
Fund
undertakes under Section 17(4)(a) of the said
Act
to compensate the
duly
appointed Curator ad Litem
,
for the costs of future accommodation of the
Injured
in a hospital or nursing home or treatment of or rendering of a
service or the supplying of goods to the said Injured, after the
costs have been incurred and on proof thereof,
subject
to the provisions of Section 36 of Occupational Injuries and Diseases
Act,1993, (ACT 130 OF 1993) from inception being 22
nd
October
2010.
”
[7] The applicant’s
attorneys wrote to the first respondent’s attorneys on three
separate occasions pointing out that
the purported certificate was
not in accordance with the order by Revelas J due to the insertion of
the proviso in paragraph 6
above. The letters elicited no response.
[8] The issue for
decision is whether the proviso amounts to an impermissible
non-compliance with the order of Revelas J.
[9] Counsel for applicant
submitted that the proviso amounts to an impermissible qualification.
The basis for the submission was
that the proviso placed more onerous
duties on the applicant not provided in the order. He would not only
have to provide proof
of the costs incurred as required by the order
but the proviso compelled him to further prove that such costs have
not been previously
paid by the Compensation Commissioner , so it was
argued.
[10] Counsel for the
first respondent submitted that the proviso did not amount to a
qualification at all. It was merely a statement
of what the law
implicitly provided in any event. The proviso was inserted because
the undertaking was furnished to applicant before
the Court delivered
judgment on the amount of damages. He, however, conceded that it
would not be permissible to have the proviso
after the judgment on
the damages. Counsel wisely abandoned the other defences the first
respondent had raised on the papers as
they manifestly had no merit.
[11] It is necessary to
consider the provisions of section 36 of Compensation for
Occupational Injuries and Diseases Act 130 of
1993 as amended. The
Section provides:
“
(
1)
If an occupational injury or disease in respect of which compensation
is payable, was caused in circumstances resulting in some
person
other than the employer of the employee concerned (in this section
referred to as the ‘third party’) being liable
for
damages in respect of such injury or disease-
the employee may claim compensation
in terms of this Act and may also institute action for damages in a
court of law against the
third party; and
the Director-General or the employer
by whom compensation is payable may institute action in a court of
law against the third
party for the recovery of compensation that he
is obliged to pay in terms of this Act.
(2) In awarding damages in an action
referred to in subsection (1)(a) the court shall have regard to
the compensation paid
in terms of this Act.
(3) In an action referred to in
subsection (1)(b) the amount recoverable shall not exceed the amount
of damages, if any, which in
the opinion of the court would have been
awarded to the employee but for this Act.
(4) For the purposes of this section
compensation includes the cost of medical aid already incurred and
any amount paid or payable
in terms of section 28, 54(2) or 72 (2)
and, in the case of a pension, the capitalized value as determined by
the Director-General
of the pension, irrespective of whether a lump
sum is at any time paid in lieu of the whole or a portion of such
pension in terms
of section 52 or 60, and periodical payments or
allowances, as the case may be.
[12] It is clear that at
best for the first respondent Section 36 above would be relevant
where an employee had concurrent claims
for compensation and damages.
The trial Court would then consider compensation already received by
the employee from the Compensation
Commissioner. The important fact
to note is that it is the trial Court that is compelled to have
regard to the compensation already
paid and not the employee
(applicant). It is thus not necessary for a certificate which is for
the benefit of the patient (applicant)
to include a reference to what
the trial Court must consider.
[13] It is my considered
view that the proviso is similar to a clause that this Court in
Baboo
v RAF
1
held was a qualification
beyond the ambit of Section 17(4)(a) of the Act. It requires that the
applicant does more than simply prove
the costs he has incurred as
provided in Section 17(4) of the Act.
The
Baboo judgment was quoted with approval by Jones J in
Vermaak
v RAF
2
.
In
my judgment, the proviso amounts to a qualification beyond the scope
of section 17(4) of the Act.
[14] The distinction that
final judgment was still pending on the damages when the proviso was
inserted is without merit. The trial
Court would in due course have
had regard to any payment made in terms of the certificate before
deciding on the final award of
damages. It is not for the patient to
prove what compensation has been made by the Commissioner when he
proves costs incurred as
provided in Section 17(4) of the Act.
[15] The fact that the
order by Revelas J was by agreement is also an important
consideration to bear in mind. The effect of the
agreement being made
a Court Order is that it is then binding on both parties
3
.
The first Respondent, cannot thereafter, unilaterally add any proviso
to an undertaking directed by Court especially one that
amounts to a
qualification. The proviso further specifies an inception date of 22
October 2010. This date was not provided in the
order of Revelas J
and was certainly not with Applicant’s consent.
[16] The last issue to
consider relates to costs. Mr Frost prevailed on me to order costs on
a punitive scale against the first
respondent. Mr Van der Linde made
no submissions regarding costs if the first respondent was not
successful in its defence.
[17] The primary fact and
circumstance in this case relevant to costs, is that the first
respondent has not complied with a Court
Order (by agreement). It has
not provided any explanation for the non-compliance except to advance
a legal argument I have found
to be without merit. It is trite that a
party that fails to comply with a Court order is visited with a costs
order on a punitive
scale unless exceptional circumstances exist. I
have not been referred to any by Respondent’s Counsel and none
could be found
on the papers.
[18] I accordingly make
the following order:-
1. The first respondent
is to provide an undertaking in compliance with the order of this
Court dated 4 August 2010 within 14 days
of this order.
2. The first respondent
is ordered to pay the costs of this application on an attorney and
client scale.
_____________________
T. MALUSI
ACTING JUDGE OF THE
HIGH COURT
APPEARANCE:
ADV A FROST : For
Applicant
Instructed by:
Roelofse Meyer Inc
Adv Van De Linde Sc : For
Respondents
Instructed by:
Boqwana Loon &
Connellan
Date Heard : 19 APRIL
2012
Date Delivered : 26 APRIL
2012
1
SECLD,
Case No. 664/02, delivered on 22/08/2003 per Ludorf, J
2 SECLD, Case No 2509/03, delivered on 3/03/2006
2
3
Marine
and Trade Insurance Co Ltd v Katz NO1979(4) SA 961 (A) per Trollip
JA at 971A-B