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2024
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[2024] ZAGPJHC 778
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Sibanda v Affinity Health Insurance and Another (046976/2023) [2024] ZAGPJHC 778 (15 August 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
: 046976/2023
DATE
:
2024-08-15
1.
REPORTABLE: NO.
2.
OF INTEREST TO OTHER JUDGES: NO.
3.
REVISED.
15
August 2024
In
the matter between
NKOSINATHI
OSTA SIBANDA
Plaintiff
and
AFFINITY HEALTH INSURANCE
AND ANOTHER Defendants
JUDGMENT
EX TEMPORE
WILSON,
J
: This is an application in terms
of rule 34A of the Rules of Court for an interim payment in respect
of medical costs and loss
of income arising from a personal injury.
The
plaintiff contends that he suffered injury as a result of the first
defendant’s failure or refusal to authorise medical
treatment
timeously. Whether or not that is true, my power under rule 34A is
circumscribed. I may only order an interim payment
if the first
defendant, in this case Affinity Health, has admitted in writing its
liability for the plaintiff’s injury or
if the plaintiff has
obtained judgment against the first defendant for damages to be
determined at a later stage.
Neither
of those conditions applies here and accordingly I have no power to
order an interim payment. I have made several attempts
to explore
with the plaintiff, who appears in person, the circumstances under
which he could bring his action and this application
properly before
another judge and perhaps obtain some relief.
The
plaintiff has unfortunately not been open to a discussion about how
that might be possible and has asked me to make an order
to expedite
the main action in terms of rule 34A (7). It has also appeared at
points during my exchange with the plaintiff that
he may want me to
determine the action on its merits today. Neither of those things can
be done.
First
of all, I am not satisfied that the main action is in such a state as
to warrant an order for an accelerated hearing under
rule 34A (7).
Secondly, I am of course not in a position, on the papers before me,
to determine the merits of that action.
The
upshot of all of this, I regret, is that no relief can be granted to
the plaintiff today. I hope that he manages to obtain professional
legal advice, which on the facts of this case, seems to me to be
available to him on a contingency fee basis.
Nonetheless,
there is only so far a judge can go to assist a lay litigant in the
prosecution of a case that may or may not have
merit. I have gone as
far as I can. The fundamental problem is that rule 34A has not been
properly engaged because there is no
written admission of liability
and no judgment against the first defendant.
The
plaintiff litigates in person and is, while misguided in much of what
he has done, not obviously in bad faith. I am not inclined
to make a
costs order against him.
For
all these reasons I make the following order:
1.
The application for an interim payment
under rule 34A of the Rules of this Court is dismissed.
2.
Each party will pay their own costs.
WILSON, J
JUDGE OF THE HIGH
COURT
15 August 2024