About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 24
|
|
Mphirime v Road Accident Fund (916/2014) [2016] ZAFSHC 24 (25 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case number: 916/2014
In
the matter between:-
KHOMOTSO
POLLY MPHIRIME
Plaintiff
Identity
Number: [.....]
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
OPPERMAN, AJ
HEARD
ON:
18 NOVEMBER 2015
DELIVERED
ON:
25
FEBRUARY 2016
JUDGEMENT
Opperman,
AJ
Introduction
[1]
The Plaintiff, a 36 year old housewife with three children, was
involved in a motor vehicle accident on 12 June 2012 in Welkom.
She
was a passenger in the vehicle that collided with the insured
vehicle. The negligence of the insured driver stands undisputed.
[2]
It is common cause that the accident has caused the Plaintiff serious
permanent disfigurement which has affected her psychologically,
physically and financially and will do so in the future. Pertinent to
the issue in hand, and also trite, is that the Plaintiff
is unable to
perform her tasks as housewife. This has an adverse effect on her
family and marriage.
The
issue for adjudication
[3]
The matter was enrolled for hearing on the 17
th
and 18
th
of November 2015. On the 17
th
of November 2015 a settlement was made an order of this Court but:
“
The
claim for R231 474-00 for future loss of earnings, or costs to the
employ of a domestic assistant, as well as the costs of experts
on
this matter, excluding costs of 17 November 2015 which is already
agreed in paragraph 6, stand over for adjudication by Court
on 18
November 2015.”
[4]
The Defendant did not dispute the need for a domestic assistant, nor
the quantum of the amount claimed to employ an assistant.
[5]
The basic issue is whether the Plaintiff is entitled to be paid the
cost of employing a domestic assistant to her as a patrimonial
loss
in a lump sum, or whether the Defendant should pay this expense in
terms of a certificate under section 17(4)(a)
[1]
of the Road Accident Fund Act 56 of 1996. (The Act)
[2]
[6]
The Defendant claims compliance with liability in terms of the Act to
be in the form of an undertaking stipulated in section
17(4)(a)(i)
and (ii); the Plaintiff claims payment of an amount of R231 474-00 in
terms of section 17(1)(a)
[3]
alternatively 17(4)(b)
[4]
and
not 17(4)(a) or 17(4)(c).
[5]
[7]
The issue revolves around the interpretation of the services stated
in section 17(4)(a) in correlation to the classification
of the
services of a domestic assistant in the applicable law: Whether the
expenses for domestic services in definition resort
under the
obligations in terms of section 17(4)(a) or under general delictual
costs as worded in section 17(1)?
The
classification of the claim in issue
[8]
The undisputed nature of the claim by the
Plaintiff is for a domestic assistant to exclusively do household
chores. She does not
claim for any health services or personal
physical aid by the assistant.
In
[zRPz]
Erdmann
v Santam Insurance Co Ltd
1985 (3)
SA 402
(C) the Plaintiff showed that she required help to run the
home. The loss of hiring a domestic assistant was classified as
follows:
“
The
words ‘compensate for any loss or damage’ (referring to
section 17(1)) have been accepted to be the restatement
of the common
law position as regards what an injured person is entitled to claim
in delictual action. The measure of such damages
is the difference
between the value of the plaintiffs’ estate after the
commission of the wrong and the value that it would
have had if the
wrong had not been committed. The injuries sustained by the plaintiff
have impaired her capacity to run the home.
There has been partial
loss of her ability to perform housekeeping duties. An assistant can
be hired to compensate for the plaintiffs’
impairment. The
costs of an assistant can thus be used as a valuation of the loss.”
[9]
The wording of section 17(4) as it refers to section 17(4B)
[6]
and as section 17(4B) refers to section 17(4)(a), explicitly denotes
and states that the liability of the Fund or an agent shall
be based
on tariffs for
health
services
provided by
public
health establishments
contemplated in the
National
Health Act 61 of 2003
,
(NCA). No other service is indicated or defined; rendering of service
can only mean health services.
Section 17(4)(a)
refers to ‘rendering
of service’ in a connected sentence structure to hospitals and
nursing homes:
“…
a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods to him or her…”
[10]
‘Health services’ in terms of
section 1
of the NCA is
defined as:
“
a)
H
ealth care
services, including reproductive health care and emergency medical
treatment, contemplated in section 27 of the Constitution;
b)
Basic nutrition and basic health care services contemplated in
section 28(1)(c) of the Constitution;
c) Medical
treatment contemplated in section 35(2)(e) of the Constitution, and
d)
Municipal services.”
[11]
A ‘public health establishment’ in terms of section 1 of
the NCA means a health establishment that is owned or
controlled by
an organ of state.
Conclusion
[12]
Considering the above domestic assistance
does
not resort under the classification of health services. C
ase
law corroborates the finding. In
Oberholzer
v National Employers' General Insurance Company Limited
1988 (4A3) QOD 1 (C) the court awarded an amount
of R76 474- 00 for the cost of domestic help, in
Bennie
v Guardian National Insurance Co Ltd
1989 4 C&B A3-34 (W) the court awarded R201 598-00 in regard to
costs for a domestic assistant, in
POO
v President Insurance Company Limited
1992 (4A3) QOD 96 (T) the court awarded an amount of R85 730-00 in
respect of the costs of a domestic assistant and in
Menzel
v Allianz Insurance Limited
1988
(4E6) QOD 1 (T) the court awarded, apart from general damages also
the costs of obtaining a gardener, costs for painting the
house and
past costs for the servicing of the car.
[13]
It is as a result found that the Plaintiff made out a proper case
that the claim is not for services or expenses stated
in
section 17(4)(a) but a loss in terms of section 17(1) to be paid in a
lump sum.
ORDER
1.
The Defendant is ordered to pay an amount
of R231 474-00 to the Plaintiff for the costs of employing a domestic
assistant.
2.
Defendant must pay the costs for the day
that includes the costs for experts on the matter of domestic
assistance.
_________________
M.
OPPERMAN, AJ
On
behalf of the plaintiff: Adv. AP Berry
Instructed
by:
McIntyre & Van Der
Post
BLOEMFONTEIN
On
behalf of the defendant: Adv. ML Gcasambe
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
[1]
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 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 subsection (4B)
;
(Accentuation added)
[2]
All
sections referred to will be sections in the Act except if
specifically stated otherwise.
[3]
17.
Liability of Fund and agents
1) The Fund or an agent
shall-
a) subject to this
Act, in the case of a claim for compensation under this section
arising from the driving of a motor vehicle
where the identity of
the owner or the driver thereof has been established;
b)
subject to any regulation made under section 26, in the case of a
claim for compensation under this section arising from
the driving
of a motor vehicle where the identity of neither the owner nor the
driver thereof has been established, be obliged
to compensate any
person (the third party) for any loss or damage which the third
party has suffered as a result of any bodily
injury to himself or
herself or the death of or any bodily injury to any other person,
caused by or arising from the driving
of a motor vehicle by any
person at any place within the Republic, if the injury or death is
due to the negligence or other wrongful
act of the driver or of the
owner of the motor vehicle or of his or her employee in the
performance of the employee's duties
as employee: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to
compensation for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
[4]
17(4)(
b)
includes a claim for future loss of income or support, the amount
payable by the Fund or the agent shall be paid by way
of a lump sum
or in instalments as agreed upon.
[5]
17(4)(
c)
Includes a claim for loss of income or support, the annual loss,
irrespective of the actual loss, shall be proportionately
calculated
to an amount not exceeding-
i) R160 000 per year in
the case of a claim for loss of income; and
ii)R160
000 per year, in respect of each deceased breadwinner, in the case
of a claim for loss of support.
[6]
17(
4B)
(a) The liability of the Fund or an agent regarding any tariff
contemplated in subsections (4)(a), (5) and (6) shall be based
on
the tariffs for health services provided by public health
establishments contemplated in the National Health Act, 2003 (Act
No. 61 of 2003), and shall be prescribed after consultation with the
Minister of Health.
b) The tariff for
emergency medical treatment provided by a health care provider
contemplated in the
National Health Act, 2003
-
i) shall be
negotiated between the Fund and such health care providers; and
ii) shall be
reasonable taking into account factors such as the cost of such
treatment and the ability of the Fund to pay.
c) In the absence
of a tariff for emergency medical treatment the tariffs contemplated
in paragraph (a) shall apply.