About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 64
|
|
Van der Merwe v Road Accident Fund (179/06) [2007] ZASCA 64; 2007 (6) SA 283 (SCA) (29 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 179/06
REPORTABLE
In the matter
between:
DR
CJ VAN DER MERWE
...............................
APPELLANT
and
ROAD
ACCIDENT FUND
...............................
RESPONDENT
Coram: Harms ADP,
Lewis, Heher, Cachalia JJA et Hancke AJA
Heard: 14 May 2007
Delivered: 29 May
2007
Summary: In terms of
s 17
(5) of the
Road Accident Fund Act 56 of 1996
the supplier may
claim directly from the Fund the third party’s costs of
accommodation or treatment or service rendered or
goods supplied by
the supplier. The supplier’s claim is dependent upon the third
party’s claim and may thus aptly be
described as an accessory
claim. Such a claim cannot become prescribed in terms of
s 23
of the
Act where the third party’s has not.
Neutral citation:
This judgment may be referred to as
Van
der Merwe v Road Accident Fund
[2007]
SCA 64 (RSA).
___________________________________________________________
JUDGMENT
___________________________________________________________
CACHALIA JA
[
1]
The appellant is an anaesthetist. He rendered medical treatment to a
Mr Grundlingh following injuries Grundlingh sustained in a
motor
vehicle collision on 2 October 1998. The treatment was administered
on 20 February 2002, more than three years after the collision,
at a
cost of R 1 319. 82. The appellant sought to recover this amount
directly from the Road Accident Fund (the respondent)
and submitted a
claim to it in terms of
s
24(3)
of the
Road Accident Fund Act 56 of 1996
on
27 June 2002
.
The
Fund did not respond and on 11 February 2003 the appellant caused a
magistrates’ court summons to be served on the Fund
for payment
of this amount. The Fund raised a special plea of prescription
averring that the claim had become prescribed because
it had been
submitted to the Fund more than three years after the accident. At
the hearing, the parties requested the magistrate
to decide this
question on the basis of a stated case. He upheld the plea and
dismissed the claim. The Pretoria High Court (Hartzenberg
J with whom
De Vos J concurred) dismissed the appellant’s appeal
1
but granted leave to appeal to this court.
[2] For the purposes
of this appeal the parties placed further facts, which have a
material bearing on its outcome, before this court.
These were that
Grundling submitted his claim for bodily injuries, which did not
include the appellant’s claim, to the Fund
on 1 September 2000,
that is, before the appellant had treated him; that when the
appellant submitted his claim on 27 June 2002,
the Fund had not yet
finalised Grundlingh’s claim; and that the Fund settled
Grundlingh’s claim on 27 November 2002
without taking the
appellant’s claim into account in the settlement.
[3]
Prescription is dealt with in
s 23
of the Act.
Section 23(1)
states
that the right to claim compensation from the Fund ‘shall
become prescribed upon expiry of a period of three years from
the
date upon which the cause of action arose’.
Section 23(3)
provides that ‘(n)otwithstanding subsection (1), no claim which
has been lodged in terms of
section 24
shall prescribe before the
expiry of a period of five years from the date on which the cause of
action arose.’ Thus where a
third party submits a claim to the
Fund in the prescribed form
2
within
the three-year period the claim prescribes only after a period of
five years. Conversely, if the claim is submitted after the
three-year period specified in
s 23(1)
has elapsed, it will have
prescribed. This is so even if it was submitted before the five-year
period specified in
s 23(3)
has passed.
3
[4] On the facts
before us Grundlingh’s third party claim had not become
prescribed at the time the appellant had submitted
his claim as the
five-year period specified in
s 23(3)
had not run its course. And
even though Grundlingh had not yet been treated by the appellant at
the time he submitted his claim to
the Fund, and could thus not have
included the appellant’s part of the claim at that stage, there
was no impediment to his
amending the claim to include the
appellant’s claim at any stage before the claim had been
finalised. By doing so he merely
would have augmented his existing
claim for damages.
[5] Counsel for the
Fund contends that the appellant’s claim, based as it is on the
same cause of action as Grundlingh’s,
must also comply with the
prescription requirements in the Act. Thus, so it is contended, just
as Grundlingh was required to submit
his claim to the Fund within
three years of the cause of action having arisen, so too was the
appellant as a supplier of medical
services. And, the contention
continues, because the appellant had not done so his claim had become
prescribed.
[6] The issue before
us is whether the appellant’s claim could have become
prescribed even though Grundlingh’s had not.
The answer
requires a brief examination of
s 17(5).
It provides as follows:
‘
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 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 claim the amount direct from the Fund or an
agent on a prescribed form, and any 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.’
[7]
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.
4
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
claim.
5
In
this sense it may aptly be described as an accessory claim.
[8] I revert to the
facts in this case. Grundlingh submitted his claim to the Fund within
the prescribed three-year period. As such
this claim could have
become prescribed only five years after the collision. And as I have
mentioned, when the appellant submitted
his claim to the Fund
Grundlingh’s had not yet been finalised (by judgment or
settlement) or become prescribed. It is not disputed
that Grundlingh
had incurred the costs of the treatment and that he would have been
entitled to include these costs as part of the
claim, as
s 17(5)
envisages. The only issue thus is whether the claim had become
prescribed.
[9] In my view once
it is accepted that Grundlingh’s claim had not become
prescribed at the time the appellant submitted his,
the appellant’s
accessory claim, being part and parcel of Grundlingh’s,
similarly could not have. Moreover, it is illogical
to interpret the
section in the way the Fund would have it, as this would effectively
negate the supplier’s right to claim
directly from the Fund.
[10] The following
order is made. The appeal is upheld with costs including the costs of
two counsel. The order of the court below
is amended to read:
‘
The
appeal is upheld with costs.’
___________________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
HARMS
ADP
LEWIS
JA
HEHER
JA
HANCKE
AJA
1
The
case is reported as
Van der Merwe v
Road Accident Fund
2006 (3) SA 88 (T).
2
Section
24
of the Act.
3
Krischke
v Road Accident Fund
2004 (4) SA 338
(W) para 19.
4
See
Daniels
MMF-RAF The Practitioner’s
Guide
(Updated 2006) E33.
5
Cf
AA Mutual Insurance Association Ltd v
Administrateur, Transvaal
1961 (2) SA
796
(A) at 805 B-C.