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[2018] ZALMPPHC 67
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Kapa v RAF (1414/2013) [2018] ZALMPPHC 67 (7 December 2018)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE
(2)
OF INTEREST
TO OTHER JUDGES
(3)
REVISED.
CASE NO: 1414/2013
In
the matter between:
MASHUDU PORTIA
KAPA
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MULLER
J
[1]
The plaintiff instituted action against the Road Accident Fund for
damages for injuries sustained
arising out of a motor vehicle
collision 23 October 2011.
[1]
The RAF has admitted liability on 13 February 2017 to compensate the
plaintiff 100% of her proven damages.
[2]
It is common cause that the plaintiff
receives a disability grant from the state. The court was requested
to determine whether the
disability grant should be deducted from the
total loss of earnings of the plaintiff or whether it is
res
inter alias acta
and not deductible.
The parties are in agreement that the plaintiff's net loss of
earnings is R918 748.00, if the disability grant
is disregarded or in
the event that the disability grant is deducted from the loss of
earnings, R525 975.00.
[3]
The plaintiff, on the one hand, contends
that a disability grant should be ignored and not deducted from the
loss of earnings. Counsel
relied upon the case of
Moropane
v RAF.
[2]
[4]
The defendant, on the other, contends
that that the amount received in respect of the disability grant
should be deducted. It relies
for that proposition on the case of
Mullins v RAF.
[3]
[5]
In South African law a plaintiff,
generally, cannot recover more than his/her actual loss.
[4]
An event which causes damage sometimes results in the receipt of a
benefit despite loss being incurred. In deciding what amount
would
compensate the plaintiff fully two competing principles must
considered.
[5]
The one is that a plaintiff should not receive double
compensation.
[6]
The other one is that the wrongdoer (or his/her insurer) should not
be relieved from liability on account of some fortuitous event
such
as the generosity of a third party.
[7]
In weighing up these principles equitable considerations such as
fairness, reasonableness, public policy and justice should be
taken
into account and may play a determinative role.
[8]
The courts dealt casuistically with collateral source issues in the
absence of an acceptable test to determine which benefits are
collateral and which are deductible.
[9]
[6]
In
Coughlan
NO v Road Accident Fund
[10]
the Constitutional Court did not
consider what the effect is on a claim for loss of earnings if the
plaintiff is the recipient of
a disability grant from the state. It
held, with reference to the nature and purpose of foster care grants,
that those grants which
arose from the constitutional obligation of
the state to provide for children in need of care are different from
compensation.
It was held that foster care grants are not paid to the
children and is furthermore not predicated on the death of a
parent.
[11]
I interpose momentarily, to point out that, in my respectful view,
the judgment is not authority to hold that disability grants
should
be regarded as similar to foster care grants. Different
considerations apply to disability grants.
[7]
However,
to determine whether payment of a disability grant amounts to double
compensation, a similar approach adopted by the Constitutional
Court
in
Coughlan NO
will
be followed:
[12]
(a)
What is the constitutional obligation of
the state in terms of section 27 of the Constitution;
(b)
The nature and purpose of disability
grants
vis-a-vis
that
of compensation for loss of earnings;
(c)
Whether there is any causal link between
a disability grant and compensation for loss of earnings.
[8]
It is acknowledged in section 27(1)(c)
of the Constitution that the state has an obligation to make social
security available to
everyone and if they are unable to support
themselves and their dependents appropriate social assistance must be
provided. The
Constitution is not prescriptive as how the state
should make grants available within the available recourses. It was
left to Parliament
to decide. The
Social Assistance Act 13 of 2004
provides for the provision and administration of social assistance
and the qualification requirements for such assistance.
[13]
The eligibility of a person to apply for a disability grant is set
out in
section 9
of the
Social Assistance Act which
reads as follows:
"A person is subject to
section 5
eligible for a disability grant if he or she -
(a)...
(b) is owing to a physical or
mental disability unfit to obtain by virtue of any service,
employment or profession the means needed
to enable him or her to
provide for his or her maintenance."
[9]
The RAF Act is silent on whether a
disability grant, in particular, should be included or excluded from
compensation.
[14]
It does not follow, merely, from such silence that social grants
which are available in terms of the
Social Assistance Act should
simply to be ignored, even if it leads to double compensation.
[15]
[10]
The nature and purpose of a. disability grant is clearly intended to
give financial assistance to anyone
who as a result of physical or
mental disability irrespective of the reason is unfit to obtain the
means to provide for his/her
maintenance. I do not understand this to
mean that a person is only eligible if he/she is totally disabled.
All that is required
is that the disability should be of such a
degree that it renders a person unable to maintain him/herself by
means of employment.
Put differently, a person who is meaningfully
employed but his/her remuneration as a result of his/her disability
is so meagre
that he/she is unable to maintain himself/herself should
qualify.
[11]
In casu
the
disability grant is paid to the plaintiff as a direct result of her
disability which was caused by the injuries she sustained
in the
motor vehicle collision. The plaintiff is regarded as unemployable
and damages are claimed for loss of earnings due to injuries
sustained the result of which is a total loss of income.
[16]
The physical injuries which she sustained rendered her totally unfit
for employment and unable to maintain herself. It comes as
no
surprise that she qualified for a disability grant.
[12]
The grant is not paid to the plaintiff a
result of the generosity, benevolence or charity of the state, but as
financial assistance
by the state due to the injuries sustained which
caused a loss of income, but also in terms of the constitutional
obligation to
render social security to everyone in need of such
assistance. That, is of course, what her claim for compensation is
all about.
[17]
Thus, there is very close causal link between the reason for the
disability grant and the claim for loss of income.
[18]
There is no doubt in my mind that the payment of the disability grant
leads to double compensation.
[13]
In addition, it must be taken into
consideration that the public carries a heavy financial burden
towards the state. The ongoing
financial woes of the RAF is notorious
and well known. The funds utilised by the RAF and the funds allocated
for social grants
originates from public by means fuel levies on the
one side, and taxes, on the other. Public policy, fairness and
justice demands
that overcompensating motor vehicle accident victims
from public funds should be avoided.
[19]
Fairness and justice demands that the disability grant be deducted
from the award to be made.
[14]
Finally, I respectfully disagree, for
the reasons set out above, with the judgment in
Moropane
v RAF
which held that a disability
grant paid by the state should be ignored and not be deducted.
[15]
The RAF is successful with regard to the
separated issue and is entitled to its costs.
ORDER
(1)
It is declared that the amounts of the
state disability grant paid to the plaintiff be deducted from her
total loss of income.
(2)
The defendant is ordered to pay the
plaintiff the amount of R 525 975.00 in respect of the claim for loss
of income.
(3)
The plaintiff is ordered to pay the
costs of the defendant in respect of the separated issue.
G.C MULLER
JUDGE OF THE HIGH COURT LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
For
the Plaintiff
: AdvT Pillay
For
the Defendant
: Adv T.I Ngwana
Date
of hearing
:03 December 2018
Date
of judgment delivered
:07 December 2018
[1]
Hereinafter referred to as "the RAF". The RAF is
established in terms of the Road Accident Fund Act 56 of 1996.
(Hereinafter
referred to as the "RAF Act.")
[2]
Unreported decision North Gauteng High Court Case no 39680/2012
dated 27 Augustus 2018.
[3]
Case No 3650/2014 [2016] ZAEPEHC 32 (4 August 2016).
[4]
Not losing sight that the fullest possible compensation of the loss
suffered should be realized.
[5]
The collateral-source rule.
[6]
Zysset v Santam Ltd
1996 (1) SA 273
(C) 278A-D.
[7]
Zysset v Santam Ltd
supra: 278F.
[8]
Neethling J and Potgieter JM
Neethling-Potgieter-Visser Law of
Delict
6th ed LexisNexis Durban (201O) 231- 232;
Santam
Versekeringsmaatskappy v Byleveldt
1973 (2) SA 146 (A) 151
[9]
Standard General Insurance Co Ltd v Dugmore
1997 (1) SA 33
(A) 42 A-B; Steynberg Land Millard D
"Distinguishing
between Private Law and Social-Security Law in Deducting Social
Grants from Claims for Loss of Support"
2011
Potchefstroom
Electronic Law Journal
261-263.
[10]
2015 ZACC 10
par 34.
[11]
Par 58.
[12]
Par 33. (With the necessary adjustment).
[13]
s3
of the
Social Assistance Act 13 of 2004
.
[14]
s 18(2) and (3) of the RAF Act
[15]
Double dipping may be discounted
in
casu.
[16]
It was recorded in a joint minute of the industrial psychologists:
"We agree in our opinion that Ms Kapa has been compromised
by
the accident, and that she may be suited to sedentary and light work
but she is unlikely to be able to secure and sustain
sedentary
employment". It continues: "The likelihood that she would
be able to secure any form of employment in the
open labour market
in her compromised state is NIL"
[17]
Van Wyk v Santam Bpk
1998 (4) SA 731(C)
7376:
RAF v
Lechner
(711/2010)
[2011] ZASCA 240
(1 December 2011) par 12-14.
Mullins v RAF supra
par 35.
[18]
Standard General Insurance
Co
Ltd v Dugmore supra
441-J.
[19]
Van Wyk v Santam Bpk supra
738.H-J.