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[2021] ZAGPPHC 312
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Rabie N.O obo Thabiso Abraham Oliphant Trust v Road Accident Fund (40543/2019) [2021] ZAGPPHC 312 (13 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPORTABLE: NO
OF INTEREST TO
OTHER JUDGES: NO
REVISED. YES
2021-05
-13
CASE
NO: 40543/2019
In
the matter between:
JEANNE HELLEN
RABIE N.O.
APPLICANT
(obo THABISO
ABRAHAM OLIFANT TRUST)
And
ROAD ACCIDENT
FUND
RESPONDENT
Delivered:
The judgment is
delivered electronically via email and thus deemed to be delivered be
delivered on 13 May 2021.
JUDGMENT
YENDE,
A.J
Nature
of the proceedings
[1]
Before court is an
application premised on the court order granted by this court on the
11
th
October 2016, to order the respondent to make payment to the
Applicant in respect of the expenses incurred in terms of the
Applicant’s
Section 17(4)(a) Undertaking Certificate issued by
the respondent .
[2]
The expenses incurred
are
inter alia
,
for establishment and administration of the Trust as well as all
costs pertaining to furnishing bond of security for the period
of
2016 to 2017.
[3]
The main relief
sought is an order directing the respondent to pay the expenses
incurred by the applicant, in her capacity as a
Trustee in the Deeds
of Trust which was agreed upon by the parties to be established for
the benefit of the beneficiary.
SALIENT
FACTS
[4]
The beneficiary of the
Trust was involved in a motor vehicle collision that occurred on the
20 October 2014. As a result of the
collision, the beneficiary
incurred serious injuries and an action was instituted for
compensation, which action was finalized
on the 11 October 2016.
Parties made agreement to settle the matter and the settlement
agreement was made an order of the court
[5]
It is of prime
importance to this judgment that the relevant sections of the court
order are restated herein below ;
[5.1]
“
1.1 Merits is
adjudicated 100% in favour of the plaintiff.
[5.2]
1.5 The
Defendant shall furnish the Plaintiff with an Undertaking in terms of
Section
17(4)(a) of Act 56 of 1996 , in respect of future accommodation of
the
Plaintiff
in a hospital or nursing home or treatment of or the rendering of
service
or supplying of goods to the Plaintiff (and after the costs have been
incurred
and upon submission of proof thereof) arising out of the injuries
sustained
in the collision which occurred on the 20
th
October 2014.
[5.3]
The undertaking was issued by the respondent on the 13
th
October 2016 and
the
relevant section(s) are herein below restated;
Undertaking:
[5.4]
“
The Fund’s
liability to compensate the Claimant for the future
accommodation
in a hospital or nursing home or treatment of or rendering of
a
service or the supplying of goods to the Claimant, which are incurred
as a
result
of injuries the Claimant sustained in the collision, is limited to
the tariff
or
tariffs in force under the Act from time to time, and in lieu of such
a tariff or
tariffs
, to the necessary and reasonable costs incurred by the Claimant as a
result
of injuries sustained in the accident’’
.
Deed
of Trust
[5.5]
In terms of the
court order made by agreement between the parties paragraph
3
of the court order provides that; “3.1 The net proceeds of the
payments
referred
to above, after deduction of attorney and own client costs(the
capital
amount)
shall be payable by the Plaintiff’s attorneys to a trust, to be
created
within
12(twelve) months of the date of this order , which trust will; 3.2
Be
created
on the basis of the provisions as more fully set out in the draft
trust
deed
attached hereto marked “A”; 3.3 Have as its trustee, Mrs.
Jeanne Helen
Rabie,
with powers and liabilities as set out in the draft trust deed
attached
hereto
marked “A” ”.
[5.6]
The objectives of this Deed of Trust are
interalia
;( 7.1) To administer the
capital
amount, which represents damages payable to the beneficiary by the
Road
Accident Fund arising out of the accident that occurred on 28 October
2014,
in such a way that, as far as reasonably possible, the capital amount
received
by the trust achieves its purpose of compensating the beneficiary in
respect
of the damages suffered by him arising out of the aforegoing”.
[6]
The applicant lodged a claim for expenses on the 8 May
2018 in terms of Section
17(4)(a)
undertaking certificate .The applicant contends that the
respondent is liable to the Trust for the amount of R 47
564,76 in
respect of the expenses arising from Section 17(4)(a)
undertaking certificate, in respect of the establishment
and
administration of this trust , as well as all costs pertaining to the
bond security for the period of 2016 to 2017.
[7]
The respondent refuses to effect payment of these costs and argues
that the applicant has not made out a case that
the beneficiary had
to have a trust created for his benefit at the costs of the
respondent as a result of the injuries sustained
during the
collision. The respondent further attacks the applicant’s
application on the basis that no
curator ad litem
had been
appointed to act on the beneficiary’s behalf in the main action
and thus the applicant’s reliance on the fact
that the Deed of
Trust ,read with the Court Order , founds liability on the part of
the respondent is misplace. The respondent
contends further
that the court order does not make provision for the respondent to
furnish the plaintiff with the undertaking.
Legal
analysis
[8]
Section 17(4)
(a) of the
Road Accident Fund, Act 56 of 1996
provides that:
“
Where
a claim for compensation under sub-section (1)-
(a)
includes a claim for the costs of the future accommodation of any
person in
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)
the provider of such service or treatment directly,
notwithstanding
Section 19(c)
or (d), in accordance with the tariff
contemplated
in sub-section (4)(b)”.
[9]
The applicant contends that the cost incurred in relation to the
establishment and the administration of the trust as well as
cost
pertaining to the bond of security for a trust falls squarely within
the ambit of “
rendering of a service or supplying of a
goods
” as provided in the said Undertaking
Certificate .
[10]
The contention by the applicant lies in the interpretation of the
phrase “ rendering of a service” as contained
in
section
17(4)(a)
of Act 56 of 1996 .The Supreme Court of Appeal in the matter
of
Bothma –Batho Transport (edms) Bpk v S Bothma & Seun
Transport (edms) Bpk (802/2012) [2013]ZASCA 176 (28 November 2013)
described the approach to be followed now in relation to
the interpretation of ,
interalia
statutory instruments ,and
states in paragraph “[12]
that summary
, referring to
the well-known and much cited summary of the earlier approach to the
interpretation of contracts by Joubert JA in
Coopers & Lybrand &
others v Bryant,
is no longer consistent with the approach to
interpretation now adopted by South African courts in relation to
contracts or other
documents ,such as statutory instruments or
patents . Whilst the starting point remains the words of the
document, which are the
only relevant medium through which the
parties have expressed their contractual intentions, the process of
interpretation does
not stop at a perceived literal meaning of those
words, but considers them in the light of all relevant and admissible
context,
including the circumstances in which the document came into
being. The former distinction between permissible background and
surrounding
circumstances, never very clear, has fallen away.
Interpretation is no longer a process that occurs in stages but is
‘essentially
one unitary exercise’. Accordingly it is no
longer helpful to refer to the earlier approach
’’.
[11]
In
Reyneke N.O v Mutual and Federal Insurance Co Ltd
1992 (2) SA
417
(T)
, the court when referring to the repealed Motor Vehicle
Accident Act 84 of 1986, and more specifically Section 8(5)(a)
which
provides for an undertaking by the Fund to compensate only if
and when costs are incurred in future
(being similar to the
current Section 17(4) provision of the Road Accident Fund Act )
,
held that “
,this provision is limited to costs of
accommodation in a hospital or nursing home or treatment of ,or
rendering of a service ,or
supplying of goods to the claimant . The
words ‘a
claim for the cost of future …rendering
of a service …to him’
(“n eis om die
koste van die toekomstige…lewering van ‘n diens
….aan hom’) are, in my opinion
,wide enough to cover the
costs of a curatrix bonis who in effect renders a service to the
patient by administering her estate.
A court is therefore empowered
by s 8(5)(a)
which is equivalent to Section 17(4)(a) (my
emphasis)
to include in its award an order that the MVA
Fund , or its appointed agent ,furnish an undertaking to compensate
the third party,
in this case ,in respect of the future fees and
charges of the curatrix bonis appointed to administer her estate, as
and when these
become payable
”.
[12]
In Barnard N.O v Road Accident Fund
2017 (1) SA 245
(ECP)
the court considered the question as to whether a plaintiff was
entitled to claim the costs of the future employment of a domestic
assistant in terms of section 17(4)(a) undertaking and held
that “ [32] In light of what is set out above I find the
phrase
‘in accordance with the tariff contemplated in subsection (4B)’
as introduced in s 17 of the RAF Act 19 of 2005
, as read with the
provisions of ss(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 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”.
[13]
Recently in the matter of Ronald Herman Meyerdicks N.O v Road
Accident Fund (3526/2014) an unreported judgment of this court
delivered on the 4 June 2018, the court held at para [18] “
that
the undertaking being limited to 80% includes the reasonable costs
incurred in the establishment of a trust and the reasonable
costs
incurred in the administration of the award, the reasonable costs
incurred in providing security to the satisfaction of the
Master in
terms of section 77 of the Administration of Estates Act
”.
[14]
This court have also carefully considered the various matters of
Rabie Jeanne Helen N.O (obo Tshediso David Thai Trust)
Case Number
37056/2019, Rabie Jeanne Helen N.O (obo Mishack Lethamaga Serudu
Trust) Case Number 38945/2019, Rabie Jeanne Helen
N.O(obo Thomas
Manganye Trust ) Case Number 38946/2019 v Road Accident Fund
unreported judgment of this court delivered on the
19 September 2019.
I submit that a restrictive interpretation was applied in the above
matters and thus I am not persuaded thereof.
Discussion
[14]
It is this court’s firm view that although the undertaking
certificate is not the same as contracts or patents
any
interpretation assigned to the words therein should be done in the
interest of justice and to protect and preserve the dignity
of road
accident victims who will but for the accident have to depend on
others for their care and livelihood. To give a strict
interpretation
to Section 17(4)(a) undertaking certificate as being ordinarily
granted where the Road Accident Fund has admitted
liability ‘
for the future medical and hospital expenses of the Claimant which
includes the accommodation of a claimant in
hospital or nursing home
or , treatment of or rendering of a service or supplying of goods to
the claimant(s)’ only
for health services in our current
development of our bill of rights will go against the intention of
the legislature in providing
the said undertaking . Thus leaving the
claimants in the lurch.
[15]
It is the court’s view from the above analysis that the
interpretation of the phrase ‘rendering of service or supplying
of goods’ cannot be confined only to the admitted liability of
the Road Accident Fund for ‘
rendering of services’
the provision of which is regulated by a tariff promulgated in terms
of the National Health Act
.
As mentioned above the words
‘rendering of service’ is and/or wide enough to include
the rendering of service by a domestic
assistant, a curatrix bonis
and the establishment and administration of the trust on behalf of
the road accident victims. Thus
expenses incurred as the consequent
thereof are claimable in terms of the Section 17(4)(a) Undertaking
Certificate issued by the
Road Accident Fund and such expenses should
be reasonable in the circumstances.
[16]
Consequently the following order is made;
[16.1]
The respondent is ordered to pay the applicant the amount of
R
47’ 564.76 in respect of expenses incurred in terms of the
applicant’s
Section
17(4)(a) Undertaking Certificate ,for establishment of the trust
as
well as all costs pertaining to the bond of security for the period
2016 to
2017;
[16.2]
Interest on R47 ‘564.76 at the rate of 10.25% per annum until
the date
of
payment;
[16.3]
The respondent is ordered to pay the costs of this application.
J YENDE
Acting Judge of the
High Court
Gauteng Division
Delivered: This
judgment was prepared and authored by the Judge whose name is
reflected above, and is handed down electronically
by circulation to
the parties’ legal representatives by email and uploading same
to the electronic file of this matter on
Caselines. The date for
hand-down is deemed to be: 13 May 2021.
COUNSEL FOR
APPLICANT:
ADVOCATE M JACOBS
(Room
G-06, Groenkloof Chambers)
APPLICANT’S
ATTORNEYS: VZLR INC
Pretoria
COUNSEL FOR
RESPONDENTS: NO APPEARANCE