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2024
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[2024] ZAGPPHC 93
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Road Accident Fund v Newnet Properties (Pty) Ltd t/a Sunshine Hospital and Another (097423/23) [2024] ZAGPPHC 93 (30 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 097423/23
Date
of hearing: 16 January 2024
Date
delivered: 30 January 2024
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
DATE:
30/1/24
In
the matter between:
THE
ROAD ACCIDENT FUND
Applicant
and
NEWNET
PROPERTIES (PTY) LTD t/a
First Respondent
SUNSHINE
HOSPITAL
THE
SHERIFF, PRETORIA EAST
Second Respondent
JUDGMENT
SWANEPOEL
J:
[1]
Applicant seeks leave to appeal against my order of 23 November 2023,
dismissing its
application with costs on the attorney/client scale.
[2]
The grounds for leave to appeal are fully set out in applicant's
notice of application,
and I do not intend to repeat the contents
thereof. I have delivered a comprehensive judgment, and I also do not
intend to deal
with each averment afresh.
[3]
However, two submissions made by applicant deserve attention. The
first is that in
a rule 45 A application such as this, the Court does
not delve into the merits of the case. It only has to satisfy itself
that
there is a live dispute between the parties. Applicant contends
that the Court in fact ruled on the merits of the case. The mere
fact
that applicant contends that there is a dispute between the parties
is not, in my view, to be accepted on face value. A Court
has to
determine whether the dispute is real, and to do so, it has to
consider, whether there is a real dispute, at least on a
prima facie
basis, without attempting to determine the merits of the dispute.
That is what I attempted to do. Having considered
the alleged
dispute, I cannot find that there is a real dispute between the
parties.
[4]
In argument Mr. Rip SC, acting for the applicant, conceded that it
may well be that
many of the writs now sought to be stayed are
perfectly in order, and that there was no irregularity in the
respondent's claim.
If that is so, then I cannot see any basis to
staying all the writs on the mere suspicion that there may have been
overcharging
in other cases. Instead of adopting a shotgun approach,
there is nothing prohibiting the applicant from investigating each
claim
individually, and seeking rescission of the judgments found to
have been improperly taken, save that it is inconvenient for the
applicant to do so. That is not a sufficient basis for the
application.
[5]
The second issue is that I incorrectly found that the report on which
applicant bases
its allegation that there has been widespread
overcharging is hearsay. Applicant points out that, although the
report contains
an RAF letterhead, it is a report by the managed care
administrator that investigated 29 claims lodged by respondent. Even
if that
were so, the author of the report is unknown, and there is no
confirmatory affidavit confirming the contents, as Mr. Rip properly
conceded. The value of the report is dubious, in my view. In any
event, I re-iterate the point that even if there has been widespread
overcharging, the RAF should properly investigate the claims and deal
with each improper claim, and not simply seek to stay all
writs, even
those properly issued.
[6]
I do not believe that another Court would come to a different
finding, and consequently,
I make the following order:
[6.1]
The application is dismissed with costs on the attorney/client scale,
including the cost of two counsel
where so employed.
SWANEPOEL
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
COUNSEL FOR
APPLICANT:
Adv. M. Rip SC
Adv. T. Pillay
Adv. A Ngidi
ATTORNEY FOR
APPLICANT:
Malatji & Co
COUNSEL
FOR
FIRST
RESPONDENT:
Adv. J. Cilliers
SC
Adv. M van
Rooyen
ATTORNEY
FOR FIRST
RESPONDENT:
Podbielski
Mhlambi Inc
DATE HEARD:
16 January 2024
DATE OF
JUDGMENT:
30 January 2024