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2024
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[2024] ZAFSHC 25
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Bereng v Road Accident Fund (2218/2022) [2024] ZAFSHC 25 (1 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no.: 2218/2022
In
the matter between:
BERENG,
LEBOHANG VINCENT
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Link
no.: 5238783
CORAM:
VAN ZYL
HEARD
ON:
18 JULY 2023
DELIVERED
ON:
1
FEBRUARY 2024
[1]
The plaintiff instituted action against the defendant for damages
suffered as a result of
a motor vehicle accident which occurred on 5
August 2021.
[2]
The merits have been settled. With the exclusion of the past
hospital and medical
expenses, the
quantum
has also been
settled. I have already issued an order in relation to the aforesaid
settled issues.
[3]
On the date of the hearing of the application, I was requested by Ms
Boonzaaier, who appeared
on behalf of the plaintiff, and Ms Bornman,
who appeared on behalf of the defendant, to determine the issue of
the liability, or
not, of the defendant for the plaintiff’s
agreed or proven past hospital and medical expenses.
[4]
The background to the present dispute is the following:
1.
An Internal Directive, dated 12 August 2022, was
issued by the Acting
Chief Claims Officer of the defendant to all regional managers of the
defendant, which directive reads as
follows:
“
Dear
Colleagues
All
Regional Managers
must ensure that their teams implement the
attached process to assess claims for past medical expenses.
All RAF officers are required to assess claims for past medical
expenses and
reject
the medical expenses claimed if the
Medical Aid has already paid
for the
medical expenses.
The regions must use the prepared
template rejection letter
(see attached)
to communicate the rejection. The reason to be
provided for the repudiation will be that the claimant has sustain no
loss or incurred
any expenses relating to the past medical expenses
claimed. Therefore, there is no duty on the RAF to reimburse
the claimant.
Also
attached
is a
list of
Medical
Schemes. Required outcome: immediate implementation of
the process and hundred percent compliance to the process.
”
(The defendant’s own emphasis)
2.
Subsequent to the issuing of the aforesaid
Directive, Discovery Health (Pty) Ltd issued an urgent application in
High Court, Gauteng
Division, Pretoria, in which it sought an order
whereby the Directive be reviewed and set aside. On 26 October 2022
judgment was
delivered in the said application under the name
Discovery Health (Pty) Ltd v Road
Accident Fund & Another
(2022/016179) [2022] ZAGPPHC 768 (26 October 2022), hereinafter
referred to as “the main judgment”, in terms whereof
the
following order was made:
“
42.1
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August 2022 is
declared unlawful.
42.2
The directive issued by the Acting Chief Claims Officer of the first
respondent on 12 August
2022 is reviewed and set aside.
42.3
The first respondent is interdicted and restraint from implementing
the directive aforementioned.”
3.
The defendant filed an application for leave to
appeal against the
main judgment. On 23 January 2023 the Court dismissed the application
for leave to appeal.
4.
An application for leave to appeal against the main
judgment was
subsequently filed by the defendant in the Supreme Court of Appeal on
23 February 2023.
5.
On 31 March 2023 the Supreme Court of Appeal, under
case number
135/2023, dismissed the application for leave to appeal with the
following order:
“
The
application for leave to appeal is dismissed with costs on the
grounds that there is no reasonable prospect of success in an
appeal
and there is no other compelling reason why an appeal should be
heard.”
6.
On 24 April 2023 the defendant, under case number
CCT106/23, filed an
application in the Constitutional Court for leave to appeal against
the main judgment.
[5]
At the time when the present matter served before me, the application
for leave to appeal
in the Constitutional Court was still pending and
hence the present dispute.
[6]
However, the Constitutional Court has since dismissed the
last-mentioned application for
leave to appeal against the main
judgment on 18 October 2023 by means of the following order:
“
The Constitutional
Court has considered the application for leave to appeal and has
concluded that it does not engage the jurisdiction
of the Court.
Consequently, leave to appeal must be refused. The Court has decided
to award costs.”
[7]
The main judgment issued in the matter of
Discovery Health
(Pty) Ltd
v Road Accident Fund & Another
,
supra, in
terms whereof the defendant’s directive was
reviewed and set aside, is consequently still in force.
[8]
I respectfully agree with the main judgment.
[9]
The defendant is consequently liable to pay the plaintiff’s
agreed or proven past
hospital and medical expenses.
[10]
At the time of the hearing of the present application, I was informed
by the legal representatives
that the amount of the plaintiff’s
past hospital and medical expenses have not (yet) been agreed upon
between the parties.
I was consequently requested to make an
order in terms whereof the Court can be approached for the payment of
the said expenses,
should the parties in the meantime agree on the
amount thereof; alternatively, for the determination by the court of
the amount
of such expenses. In my view a postponement of the matter
to the pre-trial roll will accommodate both possibilities.
[11]
Considering that the application for leave to appeal against the main
judgment was still pending in
the Constitutional Court at the time
when the present matter served before me, there was no clarity on the
issue. It is therefore
understandable that the issue was in dispute
between the parties. In the circumstances I consider it fair
and reasonable
that the costs of the present matter be costs in the
action and should therefore be paid by the defendant in accordance
with the
previous Court Order, dated 18 July 2023.
Order:
1.
The defendant is ordered to pay the plaintiff’s
agreed or
proven past hospital and medical expenses.
2.
The matter is postponed to the pre-trial roll of
4 March 2024.
3.
The costs of the present matter which served before
me on 18 July
2023, are to be costs in the action, which costs are to include, but
not be limited to, the drafting of heads of
argument by both parties,
and are therefore to be paid by the defendant in accordance with the
Court Order, dated 18 July 2023.
________________
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv. A.S. Boonzaaier
Instructed by
:
A Wolmarans Inc
BLOEMFONTEIN
On
behalf of the defendant: Ms. C. Bornman
Instructed by:
Office of the State
Attorney
BLOEMFONTEIN