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[2017] ZASCA 140
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Road Accident Fund v Mphirime (1036/2016) [2017] ZASCA 140 (2 October 2017)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
1036/2016
In
the matter between:
ROAD
ACCIDENT FUND
APPELLANT
and
KHOMOTSO
POLLY MPHIRIME
RESPONDENT
Neutral
citation:
Road
Accident Fund v Mphirime
(1036/2016)
[2017] ZASCA 140
(2 October 2017)
Coram:
Leach,
Tshiqi, Majiedt and Mathopo JJA and Ploos van Amstel AJA
Heard:
1
September 2017
Delivered:
2
October 2017
Summary:
Road
Accident Fund Act 56 of 1996
: undertaking to pay future services
under
s 17(4)
(a)
of
that Act : undertaking may be given in respect of the cost of
providing a domestic assistant.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Opperman AJ sitting
as court of first instance):
1
The appeal succeeds. There will be no order as to costs.
2
The order of the court a quo dated 25 February 2016 is set aside and
is substituted
with the following:
‘
(a)
It is declared that the cost of employment of a domestic assistant to
the plaintiff is an expense that the
defendant is entitled to pay in
terms of an undertaking under s 17(4)
(a)
of
the Road Accident Fund Act 56 of 1996;
(b)
The defendant is ordered to furnish the plaintiff with such an
undertaking.’
JUDGMENT
Leach
JA (Tshiqi, Majiedt and Mathopo JJA and Ploos van Amstel AJA
concurring)
[1]
The issue that arises for decision in this appeal is whether the
state of the law at present allows the appellant, the Road
Accident
Fund (the Fund) to discharge its liability to pay for the costs of
employing a domestic servant required by an injured
claimant by
issuing an undertaking under s 17(4)
(a)
of
the Road Accident Fund Act 56 of 1996 (the Act). The court a quo held
that pursuant to the amendment of the Act by the
Road Accident Fund
Amendment Act 19 of 2005
, it was no longer competent for the Fund to
do so. Its judgment in this regard has been followed in certain cases
but disapproved
in others. This appeal is with the leave of the court
a quo.
[2]
On 12 June 2012 the respondent, a middle-aged mother of three
children, was a passenger in a motor vehicle which collided with
another motor vehicle. The collision occurred in circumstances which
rendered the appellant liable to the respondent for damages
due to
the bodily injuries she sustained as a result. Consequently, when the
matter came to trial in November 2015, the Fund consented
to an order
that it is liable ‘for payment of 100% of the (respondent’s)
proven or agreed damages’. Agreement
was also reached on almost
all of the outstanding issues relating to the respondent’s
claim, including a sum in respect of
her general damages as well as
her past hospital expenses, and an order in respect of these agreed
damages was granted by consent
on 17 November 2015. However, as
no agreement was reached in respect of a claim relating to the cost
of providing a domestic
assistant, that issue was argued the
following day.
[3]
When the matter was heard on 18 November 2015, the Fund conceded that
the respondent needed a domestic assistant. The parties
were also
agreed on an amount that would constitute a fair and reasonable
monetary sum to be awarded in that regard. The Fund insisted,
however, that as a matter of law it could discharge its liability by
giving an undertaking under s 17(4)
(a)
of the Act. The
respondent, on the other hand, contended otherwise and insisted on
being paid the agreed amount in a lump sum. The
court quo was called
upon to decide which contention was correct in law. In its judgment
delivered on 25 February 2016, it
held in favour of the
respondent and made the following award:
‘
1
The [Fund] is ordered to pay an amount of R 231 474.00 to the
[respondent] for
the costs of employing a domestic assistant.
2
The [Fund] must pay the costs for the day that includes the costs for
experts
on the matter of domestic assistance.’
[4]
The appeal to this Court is brought solely against paragraph 1 of
this order. It is clear from the relatively insubstantial
amount of
the award, that the appeal is directed at obtaining clarity on the
issue of what claims may be dealt with by way of an
undertaking under
the section. As appears from what follows, and as things presently
stand, this is somewhat of an academic exercise.
[5]
In consequence of the so-called ‘once and for all principle’
of the common law, a court is generally obliged to
determine all
items of a plaintiff’s loss, both past and future, in the same
proceeding. In respect of future losses, the
assessment of loss is
often speculative involving, as it does, ‘a prediction as to
the future without the benefit of crystal
balls, soothsayers, or
oracles’.
[1]
As this Court
stated in
Anthony
& another v Cape Town Municipality
[2]
‘(w)hen it comes to scanning the uncertain future, the court is
virtually pondering the imponderable, but must do the best
it can on
the material available, even if the result may not inappropriately be
described as an informed guess . . .’ As
a result, the process
of calculating future loss may obviously result in an award
potentially to the substantial prejudice of one
side or the other.
[6]
In so-called ‘third party’ cases involving plaintiffs
injured in motor vehicle accidents, the situation was ameliorated
somewhat by s 21(1C) of the Compulsory Motor Vehicle Insurance Act 56
of 1972.
[3]
Introduced with effect from 1 September 1978, it entitled a defendant
sued for damages under that Act to furnish an undertaking
to
compensate the third party with, inter-alia, ‘the costs of
future accommodation in a hospital or nursing home or treatment
of or
rendering
of a service
or supplying of goods to him’ once such costs were incurred.
Similar provisions were included in the legislation that succeeded
Act 56 of 1972: see art 43
(a)
of the Schedule to the Multilateral Motor Vehicle Accidents Fund Act
93 of 1980, s 8(5) of the Motor Vehicle Accidents Act 84
of
1986, and
s 17(4)
of the
Road Accident Fund Act 56 of 1996
. This
Court pointed out in,
Arendse
[4]
that the purpose of these provisions was to help solve the
quantification problem of future loss.
[7]
And to that purpose, such provisions were put. Undertakings were
given not only in respect of future hospital or medical expenses
[5]
but also, for example, in respect of the services rendered by a
curatrix
bonis
,
[6]
and the appointment of an assistant to assist an injured farmer in
his farming enterprise.
[7]
This was done under the aegis that such an undertaking related to
‘the rendering of a service’ as envisaged in the
relevant
legislation. It is accepted by both sides that until 1 August
2008, the costs occasioned by an injured party employing
a domestic
assistant were capable of being dealt with in this way.
[8]
Until then s 17(4)
(a)
of the Act had been in terms similar to
those already mentioned, authorising the Fund to give an undertaking
to the injured claimant
in respect of ‘the costs of the future
accommodation . . . in a hospital or nursing home or treatment of or
rendering of a service
or supplying of goods . . .’
However, on that date,
s 6
of the
Road Accident Fund Amendment Act 19
of 2005
came into effect. It amended
s 17
to provide, inter alia, the
following:
‘
17(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 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 . . .
in
accordance with the tariff contemplated in subsection (4B);
.
. .
(4B)
(a)
The liability of the Fund or an agent regarding any tariff
contemplated in sub-section (4)
(a)
. . . 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.’
[9]
The
court a quo regarded the Fund’s obligation under s 17(4)(i)
(a)
‘. . . to compensate . . . in accordance with the tariff
contemplated in subsection (4B)’, coupled as it is with the
tariff referred to in the latter subsection being based on a health
services tariff, to thereby exclude the services of a domestic
assistant from the aegis of an undertaking. In
Manqola
v Road Accident Fund
[8]
the judgment of the court a quo was approved and followed. The
contrary argument is that to limit an undertaking solely to what
might be regarded as pure health services, ie medical and hospital
expenses, would ignore the history of the statute, the purpose
of
undertakings of this nature and their introduction in the first case.
Thus in
Barnard
NO v The Road Accident Fund
,
[9]
in which the approach of the court a quo in the present case was
considered but not followed, Goosen J said the following:
[10]
‘
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.
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.’
[10]
In
Katz
this Court commented that it was an understatement to say that the
original s 21(1C) of Act 56 of 1972 is ‘not a model of
legal
clarity or of the art of legal draftsmanship’.
[11]
That is true of the drafting of s 17 of the present Act as well, and
the failure of the legislature to clearly identify what may
be
covered by an undertaking under s 17(4)
(a)
has,
both inevitably and understandably, given rise to different
interpretations.
Indeed,
it was to resolve this conundrum and these conflicting judgments that
the Fund appealed to this court.
[11]
However, by reason of the effect of the judgment of the
Constitutional Court in
Law
Society of South Africa & others v The Minister for Transport &
another
,
[12]
it is in my view not appropriate to attempt to do so. In that case
the validity of various aspects of the amendment to the Act
brought
about by the provisions of Act 19 of 2005 were attacked on the basis
of their alleged lack of constitutional validity.
Most of the
provisions that were subjected to constitutional scrutiny survived.
However, whist accepting that the Minister had
the power under s
17(4B) to prescribe a tariff, the court found that reg 5(1) which
contained the tariff was inconsistent with
the Constitution. Part of
its order therefore reads as follows:
‘
(c)
The appeal against the order of the High Court, dismissing the
applicants’ constitutional
challenge to reg 5(1) issued by the
Minister for Transport on 21 July 2008 in terms of
s 17(4B)
(a)
of the
Road Accident Fund Act 56 of 1996
, is upheld.
(d)
It
is declared that reg 5(1) is inconsistent with the Constitution and
invalid.
(e)
Until
the Minister for 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)
00
0000">
,
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.
’(My
emphasis.)
[12]
Surprisingly,
given the lapse of seven years since that judgment was delivered, the
Minister has failed to prescribe a fresh tariff.
Thus the position
today, and as it was in 2016 when the judgment was given in the court
a quo, is that the position as it was immediately
prior to 1 August
2008 applies in respect of undertakings under
s 17(4)
(a)
.
As I have said, the position at that time was that the Fund was
entitled to give a certificate relating to the future costs of
a
domestic assistant. The decision of the Constitutional Court was not
mentioned by the court a quo, presumably because it was
not drawn to
its attention. But the position really is simple in respect of the
respondent’s claim and the court a quo ought
to have determined
the dispute in that regard in favour of the Fund, and not the
respondent.
[13]
It was argued by Mr Berry who appeared on behalf of the respondent,
that if we were to find that the Fund was entitled to give
a
certificate in respect of a domestic assistant under
s 17(4)
(a)
,
the respondent was not obliged to accept it and could insist upon
being paid with a lump sum. There is no merit in this.
Section
17(4)
(a)
states that the Fund ‘shall be entitled . . . to compensate’
by way of furnishing an undertaking. No provision is made
for a
claimant to refuse such an undertaking should the Fund exercise its
right to do so. The appeal must therefore succeed.
[14]
It was argued on behalf of the Fund that this Court should declare
that the cost of employing a domestic assistant is an expense
that
can be paid by way of an undertaking under s 17(4)
(a)
of
the Act, irrespective of whether a new tariff for health services is
prescribed by the Minister under s 17(4B). In my view, however,
it
would be both unnecessary and unwise to do so. Not only is such a
declarator surplus to requirements in respect of this judgment,
but
this court should not speak for the Minister if and when a fresh
tariff is prepared. All one can hope for is that either the
tariff
will determine what may be paid in respect of the costs of an
attendant, or that the Act be amended to spell out with great
clarity
what expenses can be dealt with by way of an undertaking . In either
event, one lives in the hope that the lawgiver will
attend to the
ambiguity that has bedevilled this issue.
[15]
Turning to the question of costs, the appeal was brought as a test
case for the public good. The Fund, quite correctly, did
not seek to
recover costs from the respondent in the event of it succeeding. It
is therefore appropriate to make no order as to
costs.
[16]
It is therefore ordered:
1
The appeal succeeds. There will be no order as to costs.
2
The order of the court a quo dated 25 February 2016 is set aside and
is substituted
with the following:
‘
(a)
It is declared that the cost of employment of a domestic assistant to
the plaintiff is an expense that the
defendant is entitled to pay in
terms of an undertaking under
s 17(4)
(a)
of
the
Road Accident Fund Act 56 of 1996
;
(b)
The defendant is ordered to furnish the plaintiff with such an
undertaking.’
__________________
LE
Leach
Judge
of Appeal
Appearances:
For
the Appellant:
A J Louw SC (with him L Botha)
Instructed
by:
Maduba Attorneys, Bloemfontein
For
Respondent:
A P Berry
Instructed
by:
B L Kretzman Attorneys, Bloemfontein
[1]
Per Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at 113G.
[2]
Anthony
& another v Cape Town Municipality
1967
(4) SA 445
(A) at 451B-C.
[3]
The section was introduced by
s
8
of Act 69 of 1978.
[4]
Road Accident Fund v Arendse
NO
[2002] ZASCA 150
;
2003 (2) SA 490
(SCA) para 9.
[5]
Eg
Marine
& Trade Insurance Co Ltd v Katz NO
1979
(4) SA 961 (A).
[6]
Reyneke NO v Mutual &
Federal Insurance Co Ltd
1992
(2) SA 417 (T).
[7]
Brink v Guardian Nasionale
Versekering Bpk
1998
(1) SA 178 (O).
[8]
Manqola v Road Accident Fund
(GP) unreported case no 3210/15
of 29 April 2016.
[9]
Barnard obo Cakwebe v The
Road Accident Fund
[2016] ZAECPEHC 71; 2017 (1) SA 245 (ECP).
[10]
Paras 29-30.
[11]
Katz
fn
5 at 969A-B.
[12]
Law Society of South Africa &
others v Minister for Transport & another
[2010] ZACC 25
;
2011 (1) SA 400
(CC).