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[2016] ZAECPEHC 71
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Barnard obo Cakwebe v Road Accident Fund (2916/2013) [2016] ZAECPEHC 71; 2017 (1) SA 245 (ECP) (25 October 2016)

IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: 2916/2013
Date
heard: 17 October 2016
Date
delivered: 25 October 2016
REPORTABLE
In the
matter between
NICOLA
BARNARD N.O. obo
KHANYISE
GIVEN
CAKWEBE

Plaintiff
And
THE
ROAD ACCIDENT FUND

Defendant
JUDGMENT
GOOSEN,
J.
1.
Action was instituted by the plaintiff for
damages arising from injuries suffered in a motor vehicle collision
which occurred on
11 October 2008.  The defendant conceded
liability for 80% of such damages as the plaintiff would be able to
prove and an
order to this effect was granted by this court on 4
February 2015. When the matter came to trial on 17 October 2016 I was
informed
that the parties had resolved all issues regarding the
quantum of the plaintiff’s claims except one issue. That
related to
the ambit of the defendant’s tendered undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act, 56 of 1996
(hereinafter
the RAF Act).
2.
It was indicated that the plaintiff’s
claims included a claim for the costs of the future employment of a
domestic assistant.
The claim, as formulated in amended particulars
of claim, was quantified in an amount in excess of R1, 7 million. The
defendant,
whilst not conceding the quantum of its liability, had
tendered an undertaking to provide for the future costs associated
with
the provision of such domestic assistance. The plaintiff however
had formed the view, based upon a judgment recently delivered in
the
Free State Division, that an undertaking in terms of s 17(4) (a)
could not cover the provision of such services and, accordingly,
that
it would be necessary for the plaintiff to prove his claim for
payment of a lump sum award to cover such future costs.
3.
The parties also indicated that proceedings were
pending for the appointment of a
curator bonis
to the plaintiff and that the future costs associated with the
appointment of a
curator bonis
were similarly affected by the interpretation placed upon s 17(4)(a)
by the aforementioned judgment.
4.
In the light of this the parties agreed that an
order be made in respect of all of the settled issues and that this
court should
consider and resolve the dispute regarding the ambit of
s17 (4) (a). It was agreed that if it should be found that s17(4)(a)
does
not permit an undertaking to cover the future costs of the
provision of a domestic assistant, then in that event the issue as to

the nature and quantum of the defendant’s liability for such
costs should be postponed for trial in due course. If it is
found
that s 17(4(a) does permit of such undertaking to be given then the
existing order relating to the undertaking should be
amended to
incorporate reference to the future costs of a domestic assistant. It
was agreed also that in that event the undertaking
should similarly
reflect the defendant’s liability for the costs of the services
of a
curator bonis.
5.
In the light of these agreements the issue to be
determined is essentially a legal one. It is, for this reason,
unnecessary to deal
with any underlying factual issues. Although the
relevant claim for the costs of a domestic assistant as formulated in
the amended
particulars frames the claim as one for both a ‘caregiver
and domestic assistant’, I was informed that for present
purposes it can be accepted that the claimed services are purely of a
domestic nature, i.e. that they do not involve the provision
of any
health related services.
6.
It is on this basis that the plaintiff contends
that the claim is struck by the judgment of Opperman AJ in
Khomotso
Polly Mphirime v Road Accident Fund
[1]
(the
Mphirime
judgment) since that judgment found that the nature of the ‘services’
envisaged by the section are ‘health related
services’
for which provision is made in the tariffs referred to in s 17(4B) of
the RAF Act. The defendant however submitted
that the
Mphirime
judgment is wrongly decided inasmuch as the interpretation of s 17(4)
(a) favoured in
Mphirime
does not accord with the underlying purpose of the section and is at
odds with long established practice in this, and other Divisions,
to
provide for claims such as that of the plaintiff by way of an
undertaking given in terms of s 17(4) (a). It was submitted that
the
Mphirime
judgment was
considered but not followed in a subsequent judgment in the KwaZulu
Natal Division, in the matter of
Wilberforce
Thembelani Ndawonde v Road Accident Fund
.
[2]
7.
Section 17 of the RAF Act was substituted by s 19
of the Road Accident Further Amendment Act, 19 of 2005 which came
into force on
1 August 2008.
[3]
The relevant portions of the section read as follows:
(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 an agent to
furnish an 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)
the provider of such
service or treatment directly, notwithstanding section 19 (c) or (d),
in accordance with the tariff contemplated
in subsection (4B);
(b)
…
(c)
…
(4A)…
(4B)
(a) The liability of the Fund or an agent regarding any tariff
contemplated in sub-section (4)
(a), (5) and (6) shall be based on
the tariffs for health services provided by public health
establishments contemplated in the
National Health Act, 2003 (Act 61
of 2003), and shall be prescribed after consultation with the
Minister of Health.
(b) The tariff for emergency
medical treatment provided by a health care provider contemplated in
the
National Health Act, 2003
–
(i)
shall be negotiated between the Fund and such health care providers;
and
(ii)
shall be reasonable taking into account factors such as the cost of
the treatment
and the ability of the Fund to pay.
(c)
for emergency medical treatment the tariff contemplated in paragraph
(a) shall
apply.
8.
In
Law Society of South
Africa and others v Minister for Transport and others
[4]
the Constitutional Court considered the constitutionality of the
scheme of compensation introduced by the amendments effected to
the
RAF Act by the coming into force of Act 19 of 2005. The only aspect
relevant for present purposes concerns that aspect of the

compensation scheme which limits the liability of the Fund in respect
of the payment of the costs of health services, i.e. the
limitation
of liability with reference to a tariff or tariffs as may be
prescribed by the Minister.
9.
In regard to this aspect the Constitutional Court
was faced with a challenge to the constitutionality of Regulation
5(1)of the medical
tariff prescribed by the Minister in terms of s
17(4B) of the Act. For reasons not germane to the present enquiry the
court found
that the Regulation, which prescribed a particular tariff
which did not adequately provide for services in state hospitals for
quadriplegic patients, was inconsistent with the Constitution and
struck it down.
10.
The order of the Constitutional Court provided
that until the Minister prescribes a new tariff in terms of s 17(4B)
a party entitled
to compensation is to be compensated as if he or she
had been injured before the
Road Accident Fund Amendment Act 19 of
2005
came into operation.
[5]
11.
The Amendment Act 19 of 2005 inserted into s
17(4) (a) subsection (ii) and the words following that subsection,
namely ‘
in accordance with the tariff
contemplated in subsection (4B)
’. It
also introduced a similar qualification in subsections (5) and (6)
and inserted subsections (4A) and (4B) into s 17.
12.
As was noted by the Constitutional Court, prior
to these amendments the liability of the Fund to compensate a third
party was unlimited.
The limitations introduced by s 17  for
pecuniary loss included a limitation of the Fund’s liability
‘for costs
of medical and health care services’ which
were to be based upon the tariffs contemplated by s 17(4B).
[6]
13.
The Constitutional Court was not required to
consider the ambit of s 17(4) (a) in the light of the amendment. It
considered only
the effect of the prescribed tariff in relation to
the third party’s claim for compensation. The judgment
therefore does
not provide direct assistance in the interpretation of
the scope and ambit of the undertaking for which s 17(4) (a)
provides.
14.
In seeking to understand the ambit of the
undertaking the starting point, in my view, must be to determine the
purpose of the section.
15.
The matter of
Road
Accident Fund v Arendse NO
[7]
concerned an appeal against an order declaring the Fund liable to
compensate a party for the costs incurred in the administration
of an
undertaking furnished in terms of art 43 (a) of the Schedule to the
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.
16.
Article 43(a) was the predecessor to s 17(4) (a).
Its wording, save for the reference to the Multilateral Motor Vehicle
Accidents
Fund (the predecessor of the current Fund), is identical to
s 17(4) (a) prior to the amendments referred to above.
17.
The court set out the legislative background to
the introduction of the mechanism of providing an undertaking and
explained its
purpose in the following terms.
Before the introduction of the
predecessor to art 43 (a), a court hearing an action for damages in a
running-down case would have
had to apply the ‘once and for all
principle’. This obliged it to award then and there (and
consequently to assess
and quantify) in one and the same proceeding
any claim for damages proved to have been suffered by a plaintiff. No
matter how anxiously
a court peered into the future when assessing
future hospital or medical expenses, or the costs of goods and
services, it risked
awarding either too much or too little. Yet,
nothing could be left over in order to see how things turned out.
Then came s 21 (1C)
of the Compulsory Motor Vehicle insurance Act 56
of 1972. Its purpose was to take the guesswork out of the assessment
of damages
of this kind. Since the introduction of the amendment such
damages could be paid as damage eventuated.
It is against this background
that art 43 (a) must be interpreted. Its purpose, like that of its
predecessor
and of its
successor
, was to
help solve the quantification problem, nothing more. It could be
invoked by the MMF (or its appointed agent) in every case
in which
there was a claim for compensation under art 40 which included a
claim for the cost of future accommodation of the plaintiff
in a
nursing home or for (medical) treatment or for the supply of goods or
services. Art 43 (b) served the same purpose in relation
to an award
for loss of future earnings or support. If there was a claim or
claims of this kind the MMF (if it accepted liability
or was adjudged
liable) might in its sole discretion decide to tender an undertaking
instead of paying damages to the plaintiff
in a lump sum.
[8]
(Emphasis added, footnotes
omitted)
18.
The underlying purpose of s 17(4) is to avoid all
of the obvious difficulties and risks associated with the
quantification of future
loss – those imponderables which are
impacted by contingencies – which are incapable of precise
determination in advance.
It is a purpose which has been consistently
promoted throughout the legislative history of statutory schemes
designed to compensate
the victims of road accidents since s 21(1C)
was introduced into Act 56 of 1972 with effect from 1 September
1978.
[9]
19.
Section 17(4)(a), like its predecessor art 43(a),
contemplates the provision of an undertaking in relation to three
categories of
future loss, namely the future costs of accommodation
in a hospital or nursing home; medical treatment; and the rendering
of a
service or the supplying of goods to the person concerned.
20.
In defining the nature of the services
contemplated by both art 43(a) and s 17(4)(a) courts have
consistently considered the wording
used to be sufficiently wide to
include the supply of services other than medical or health related
services. Thus in
Brink v Guardian Nasionale
Versekering Bpk
,
[10]
which dealt with art 43(a), the phrase ‘a claim for costs of a
future rendering of a service in terms of the article’
was held
to be wide enough to include the appointment of a person to assist
the claimant in his farming activities.
21.
In
Reyneke NO v Mutual &
Federal Insurance Co Ltd
[11]
it was held that the costs of a future rendering of a service, as
then utilised in s 8(5)(a) of the Motor Vehicle Accidents Act
84 of
1986, was sufficiently wide to include the costs of a
curatrix
bonis
appointed to administer the estate of
the claimant.
22.
It is with the underlying purpose of the
provision and the manner in which it, and its predecessor provisions,
have been interpreted
that I turn to consider the judgment in the
Mphirime
matter.
23.
In that matter, as in this, the nature of the
claim at issue was for the costs of appointment of a domestic
assistant. The court’s
reasoning is set out as follows:
[12]
The wording of section 17(4) as
it refers to section 17(4B) and as section 17(4B) refers to section
17(4)(a), explicitly denotes
and states that the liability of the
Fund or and agent be based on tariffs for
health services
provided by
public health establishments
contemplated in the
National Health Act 61 of 2003,
(NCA). No other service is
indicated or defined; rendering of service can only mean health
services. Section 17(4) (a) refers to
‘rendering of service’
in a connected sentence structure to hospitals and nursing homes:
“…
a hospital or
nursing home or treatment of or rendering of a service or supplying
of goods to him or her…”
24.
The court then goes on to state that domestic
assistance does not fall within the classification of health
services.
25.
The learned judge does not address the underlying
purpose of s 17(4) (a), nor its interpretation or that of its
predecessor. The
interpretation is confined to a reading of the words
employed in the section without consideration of their contextual
meaning.
What is also absent from the judgment is any engagement with
the legislative history, in particular the nature of the amendment
by
which reference to tariffs was introduced through the introduction of
s 17(4B) of the RAF Act.
26.
As already indicated Act 19 of 2005 introduced
subsection (ii) and the qualification phrase ‘in accordance
with the tariff
contemplated in subsection (4B)’. The question
to be asked is what was the purpose of the introduction of these
words to
the section? Does the phrase serve to qualify the liability
of the Fund in relation to all of the categories of future loss for

which s 17(4) (a) makes provision or does it serve to determine the
quantum of the liability in relation to such services as are

regulated by tariffs provided for by the
National Health Act as
may
be prescribed by the Minister?
27.
The answer to this question, it seems to me, is
to be found firstly in the wording of subsection (4B). It states that
the
‘…
liability of the
Fund…regarding any tariff contemplated…shall be based
on the tariffs for health services….’
28.
This suggests, as the plain meaning of the words
indicates, that in respect of such treatment or services as are
subject to tariff
regulation in terms of the
National Health Act, the
liability of the Fund is to be determined in accordance with the
prescribed tariff or tariffs. To construe the qualification as

determining the nature of the service as covered by the section would
restrict the ambit of
s 17(4)(a)
only to the provision of health
services, contrary to long established interpretation of the section
and its legislative predecessors.
29.
The effect of such a restrictive interpretation
would be to confine the purpose of the provision only to the future
provision of
medical services and treatment and leave all other
recognised and accepted categories of future loss to be determined as
lump sum
payments of patrimonial loss, subject to the vagaries and
uncertainties that the legislature has sought to address by the
introduction
of the provision. This would require trial proceedings
involving expert evidence to determine, amongst other things, the
present
value of a future liability. The provision of an undertaking
serves not only to avoid the difficulties of quantification of such

claims, it serves also to provide a claimant who will require future
treatment or the rendering of services with a measure of security
of
access to such services that payment of a lump sum award cannot
provide. This, in my view, serves to protect the dignity of

claimants. That the statutory scheme of compensation for victims of
road accidents serves as a form of social security is well

recognised. An interpretation of
s 17(4)
(a) which is consonant with
the values of human dignity and equality must be favoured if there is
any ambiguity in the proper construction
to be placed on the section.
30.
In my view, had the legislature intended as
significant and far-reaching an amendment of
s 17(4)
(a) as is
suggested by the
Mphirime
judgment then it would have effected it in clear and unambiguous
terms. This it has not done.
31.
I am not persuaded that
Mphirime
is correctly decided. I am, in any event, not bound by it. In the
Ndawonde
matter the
court rejected the strict interpretation of a ‘service’
as being confined to health services and found that
an undertaking
made in terms of
s 17(4)
(a) may extend to the provision of services
by a caregiver.
[13]
This approach accords with that which has informed orders routinely
made in this Division in matters involving the undertaking
to pay for
the costs of the rendering of services other than those that may
strictly be described as ‘health services’.
[14]
32.
In the light of what is set out above I find that
the phrase ‘
in accordance with the
tariff contemplated in subsection (4B)
’
as introduced in s17 of the RAF Act by Act 19 of 2005, as read with
the provisions of subsection (4B), serves only to restrict
the
liability of the Fund in relation to such services as are regulated
by a prescribed tariff and does not confine the ambit of
an
undertaking only to such services. The wording of the section is wide
enough to cover liability for the supply of goods or the
rendering of
services the provision of which is not regulated by a tariff
promulgated in terms of the
National Health Act, such
as the services
of a domestic assistant and / or the costs of a
curator
bonis
appointed to administer the estate of a
claimant.
33.
In the light of this finding it is necessary to
amend the terms of the order incorporating the undertaking furnished
by the defendant,
as was agreed, in order to properly record that it
covers both the costs attendant upon the future employment of a
domestic assistant
and the full costs of a
curator
bonis
, if appointed. It was agreed by the
parties that no additional costs were incurred in presentation of
argument in respect of the
issue to be determined and that the costs
order which was incorporated in the order of 17 October 2016 will
suffice.
34.
In the result paragraph 3 of the order made on 17
October 2016 is amended to read as follows:
‘
3.  That the Defendant is ordered to furnish
an undertaking in terms of
Section 17(4)(a)
of Act 56 of 1996,
limited to 80%, for the future accommodation of the Plaintiff in a
hospital or nursing home or treatment of
or rendering of a service or
supplying of goods to the Plaintiff, such services to include the
services of a domestic assistant,
as a result of the injuries which
the Plaintiff sustained in the collision on 11 October 2008, after
the said costs and expenses
have been incurred and upon proof
thereof. The undertaking shall include the costs of a
curator
bonis
, if appointed, as may be allowed by law
provided that the costs of the
curator bonis
shall not be limited to 80%.
G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv. P. H. Mouton
Instructed by Daniel Saks Inc.
For the Defendant
Adv. A. Frost
Instructed
by BLC Attorneys
[1]
Case No 916/2014, Free State Division, delivered on 25 February 2016
[2]
Case No 3460/2013, KwaZulu Natal Division, Pietermaritzburg,
delivered on 22 July 2016
[3]
Proclamation R29 in
GG
31249 of 21 July 2008
[4]
2011 (1) SA 400 (CC)
[5]
Paragraph (e) of the Constitutional Court order (
supra
at p
439C-D) reads as follows:
Until the
Minister of Transport prescribes a new tariff for health services
in
terms of
s 17
(4B) (a) of the
Road Accident Fund Act, a
third party,
who has sustained bodily injury and whom the Road Accident Fund is
obliged to compensate as contemplated in
ss 17(4)(a)
,
17
(5) and (6)
of the Road Accident Fund Act, is entitled to compensation or health
services as if he or she had been injured before
the
Road Accident
Fund Amendment Act 19 of 2005
came into operation.
[6]
Law Society of SA v Minister for Transport
at par[27]
(p.412D)
[7]
2003 (2) SA 490 (SCA)
[8]
At par [8] and [9]
[9]
s 21(1C)
was introduced by
s 8
of Act 69 of 1978. See
Arendse NO
at fn 5
[10]
1998 (1) SA 178 (O)
[11]
1992 (2) SA 417
(T) at 420J
[12]
See par [9]
[13]
Ndawonde
(supra) at par [7]
[14]
Cf.
Alla v Road Accident Fund
[2013] JOL 29851
(ECP) where
the undertaking included the costs of a domestic employee;
Shirley
van Zyl v Road Accident Fund
Case No CA 243/2007, Eastern Cape
Division, Unreported, delivered 19 October 2008 where a similar
order was made;
Pieter van Zyl v Road Accident Fund
Case no
1349/2012 Eastern cape Division, delivered 5 June 2013 where the
costs of a
curator bonis
were included in the s 17(4) (a)
undertaking.