Road Accident Fund v Podbielski Mhlambi Attorneys and Another (170/09) [2010] ZASCA 33 (29 March 2010)

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[2010] ZASCA 33
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Road Accident Fund v Podbielski Mhlambi Attorneys and Another (170/09) [2010] ZASCA 33 (29 March 2010)

THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 170/09
No precedential significance
ROAD
ACCIDENT FUND Appellant
and
PODBIELSKI
MHLAMBI ATTORNEYS First Respondent
THE
SHERIFF, PRETORIA EAST Second Respondent
Neutral citation:
RAF v Podbielski Mhlambi and another
(170/09)
[2010] ZASCA 33
(29 March 2010)
CORAM:
MPATI
P, SHONGWE JA and HURT, GRIESEL and
MAJIEDT
AJJA
HEARD:
26 FEBRUARY 2010
DELIVERED:
29 MARCH 2010
SUMMARY:
Road Accident Fund – whether the Fund can pursue an
appeal to the SCA which would require this court to express an
opinion on a
hypothetical question.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
North Gauteng High Court
(Pretoria) (Claassen J sitting as court of first instance).
The appeal is dismissed, with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Shongwe JA
(Mpati P, Hurt, Griesel and Majiedt AJJA
concurring):
[1]
This appeal comes to this court, ostensibly,
for an interpretation of s 17(5) of the Road Accident Fund Act.
1
The subsection reads:
‘
Where a third party is entitled to
compensation in terms of this section and has incurred costs in
respect of accommodation of himself
or herself or any other person in
a hospital or nursing home or the treatment of or any service
rendered or goods supplied to himself
or herself or any other person,
the person who provided the accommodation or treatment or rendered
the service or supplied the goods
(the supplier) may, notwithstanding
section 19 (c) or (d), claim an amount in accordance with the tariff
contemplated in subsection
(4B) direct from the Fund or an agent on a
prescribed form, and such claim shall be subject,
mutatis
mutandis
, to the
provisions applicable to the claim of the third party concerned, and
may not exceed the amount which the third party could,
but for this
subsection, have recovered.’
The question
to which
the appellant (Fund) seeks an answer is whether a supplier can
validly institute and prosecute a claim against it without
the third
party having done so.
[
2] The first
respondent, a firm of attorneys acting on behalf of various
suppliers, had obtained default and summary judgments against
the
Fund in various matters in the magistrate’s court. In execution of
these judgments, and on 11 April 2008, the Sheriff attached
certain
of the Fund's property. To avoid any removal of the attached property
the Fund issued a cheque in the sum of R1 560 527.80
in
satisfaction of the Sheriff’s demand. The fund purported to do this
under protest. Upon investigation thereafter the Fund discovered
that
in some matters payments had already been made by it. Some payments
had been made prior to, and others subsequent to, judgment
having
been granted. In respect of other matters, the Fund had not been able
to allocate the payments to specific cases.
[3] This situation necessitated a proper
reconciliation. Apparently negotiations aimed at reconciling the
figures and the judgments
failed. Consequently, the Fund brought an
urgent application to restrain the Sheriff from paying the proceeds
of the cheque over
to the first respondent and for the return of the
cheque. The following order was sought:
‘
1.
That
the Second Respondent be interdicted and restrained from paying over
the proceeds of the cheque in the sum of R 1,560,527.80
to the First
Respondent, pending finalization of this application.
2. That a rule
nisi
,
returnable on Tuesday, 22 April 2008 be issued, calling upon the
Respondents to show cause, if any, why the following order should
not
be granted:
2.1 That the cheque issued on 11 April 2008 under
protest by the Applicant to the Second Respondent be returned to the
Applicant.
2.2 That the First Respondent be ordered to pay the
costs of the application.’
The court a
quo
(Claassen J) dismissed the application, but subsequently granted
leave to the Fund to appeal to this court.
[4] It is not disputed that
during
April and May 2008 all the Fund's applications for rescission of the
judgments, except eight, were dismissed with costs. Four
of the
outstanding applications were removed from the roll by the Fund and
the remaining four have never been set down for hearing.
It is also
not disputed that the remaining eight applications are similar in
nature to those which had been dismissed. In its replying
affidavit
the Fund concedes that in certain cases, where rescission
applications were dismissed the magistrates accepted the Fund’s
interpretation of the judgment of this court in
Van
der Merwe.
2
In that case Cachalia JA, at para 7, said:
‘
The section confers on a supplier
a statutory right to recover, directly from the Fund, the costs of
accommodation, treatment, services
or goods instead of claiming such
costs from the third party. It was enacted for the benefit of
suppliers to ensure that they receive
payments made to injured
persons who incur hospital and medical expenses in respect of their
injuries. But this right arises only
if the third party is entitled
to claim the amount as part of his or her compensation from the Fund.
Put another way the right arises
only if the third party has a valid
and enforceable claim against the Fund and has complied with the
necessary formalities such as
submitting a claim in compliance with
the prescribed procedure. The supplier’s claim is therefore
dependent upon the third party
being able to establish his or her
cl
aim. In this sense it
may aptly be described as an accessory claim.’
[5] The
essential
question is whether the Fund can, after acknowledging that it owed
some money to the first respondent's clients (suppliers),
seek a
return of the cheque or a refund of the whole amount of the cheque.
The court below embarked on an arithmetic exercise and
concluded that
an amount of R287 349.15 should be deducted from the value of
the cheque as money that was not due to the suppliers.
But the more
important question, in my view, is whether the Fund is entitled to
the return of the cheque, which was paid on the strength
of valid
judgments and writs of execution.
[6] From the argument by
counsel
for the Fund it is plain that the Fund seeks a pronouncement from
this court confirming the meaning ascribed to s 17(5)
of the Act
in the
Van der Merwe
judgment.
Counsel submitted that in dismissing the Fund’s application the
court a quo departed from the judgment of this court in
Van
der Merwe.
In effect, the Fund seeks
advice from this court on the meaning of the subsection, something
which the facts of this case, in any
event, do not allow. As I have
mentioned, the cheque was paid by the Fund on the strength of valid
judgments and writs of execution.
Those judgments and writs have not
been set aside. The moneys due in terms of those judgments were
therefore due and payable at the
time the cheque was paid. There is
thus no basis upon which a court can order the return of the cheque
as claimed. And the interpretation
of s 17(5) of the Act will not
alter that reality.
[7] In my view, it was not necessary for the court
a quo even to have considered the
Van
der Merwe
decision and it is not
necessary for this court to do so.
[8]
The appeal is dismissed, with costs.
_________________
J SHONGWE
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: B P Geach SC
F
Bezuidenhout
Instructed
by:
Maponya
Inc
Pretoria
Honey
Attorneys
Bloemfontein
For
1
st
Respondent: D S Fourie SC
Instructed
by:
Podbielski
Mhlambi Inc
Pretoria
Vermaak
& Dennis
Bloemfontein
1
Act 56 of 1996.
2
Van der Merwe v Road Accident Fund
2007
(6) SA 283
(SCA).