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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2022- 036615
In the matter between:
In the matter between:
TSHETLANYANE BOITUMEL Applicant
and
THE ROAD ACCIDENT FUND Respondent
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
[1] The application before me is one where the Applicant seeks an interim
payment in respect of past hospital and medical expenses in terms of Section 17(6) (1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
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of the Road Accident Fund Act 56 of 1996 ("the Act") read with Rule 34A Uniform
Rules of Court, against the Road Accident Fund ("RAF') .
[2] Although the matter is opposed there was no appearance on behalf of the
Respondent on the hearing date.
[3] Both my registrar and the Applicant’s legal representative - Adv RV Mudau
telephonically contacted t he Respondent’s legal representative, Mr . Sondlani, who
indicated that he was unaware of the hearing date and that the matter had to proceed in his absence.
[4] Adv. Mudau referred me to the N otice of Setdown for Monday the 24th of
February 2025 which was electronically served on the Respondent on 20 January
2025 as well as by hand on 21 January 2025.
[5] I was accordingly satisfied that the Respondent had been informed of the
hearing date. I proceeded to hear the matter in the absence of the Respondent , but
taking into consideration the opposing papers which were delivered.
CAUSE OF ACTION AND CASE HISTORY:
[6] The Applicant’s cause of action is one of delict where the Applicant claims
amongst other relief for past medical and hospital expenses.
[7] The cause of action is based upon a collision which occurred on 05
September 2021 at approximately 20h00 at or near, or along the N12 Freeway, in the approximate vicinity of the Kraft Road bridge, Germiston. The collision occurred
between a motor vehicle bearing registration numbers E […]driven by the insured
driver and a motor vehicle bearing registration letters J[ …], there and then being
driven by the Applicant.
[8] The Applicant had sustained serious injuries during the accident.
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[9] The injuries sustained and relied upon by the Applicant are summarized as
follows :
[9.1] a head/brain injury with loss of consciousness,
[9.2] laceration under the chin,
[9.3] undisplaced bilateral 1st rib fractures,
[9.4] small right apical pneumothorax and a small right haemothorax,
[9.5] left lower liver laceration,
[9.6] fracture of the L3 to L5 transverse process,
[9.7] comminuted fracture of the right 91 sacral alae and both S2 sacral
alae,
[9.8] comminuted fracture of the left inferior pubic ramus,
[9.9] transverse laterally displaced fracture of the right midshaft humerus
with nerve damage,
[9.10] fractured through base of right hand fourth metacarpal bone,
[9.11] transverse fracture through the distal diaphysis of the left radius with
negative ulnar variation,
[9.12] laterally displaced further fracture of the right midshaft femur,
[9.13] undisplaced fracture of the right medial malleolus, permanent
disfiguring scarring due to the injuries sustained and the resultant surgery and psychological sequelae due to the injuries and the accident itself.
[10] The Applicant’s case is reliant upon the fact that the negligence of the insured
driver was the sole cause of the accident and that the Respondent is liable to compensate the Plaintiff for damages suffered in an amount of R8 188 183.14.
EVALUATION OF MERITS:
[11] After consider ation and evaluation of the Applicant’s claim the Respondent
resolved that the abovesaid motor vehicle collision was indeed as a result of the sole
negligence of the insured driver.
[12] On 7 October 2022 the Respondent voluntary offered a settlement of the
merits . The Respondent accepted that it would be liable for 100% of the Applicant’s
agreed or proven damages.
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[13] The Respondent’s settlement offer was contained in a letter1 worded as
follows :
“The Road Accident Fund (RAF) has considered the available evidence
relating to the manner in which the motor vehicle accident giving rise- to this
claim occurred. The RAF has concluded that the collision resulted from the
sole negligence of the RAF's insured driver. Consequently; without prejudice,
the RAF offers to settle the issue of negligence vis -a-vis the occurrence of the
motor vehicle collision on the basis that the insured driver was solely
negligent in causing the motor vehicle collision.
This offer is limited to the aspect of negligence as to the manner in which the
collision occurred. This offer may not be interpreted or construed in a manner
that would have the RAF concede any other aspect of the claim. To avoid doubt, the RAF reserves all its rights in law with regards to all other procedural and substantive aspects of the claim. Acceptance of this offer will only be effective when the RAF receives this document with the portion "Acceptance of Offer" fully completed. If this offer was made after prescription of the claim, it will not be deemed to be a waiver of prescription, and any
purported acceptance will not be enforceable…”
[14] The above said offer was accept ed by the Applicant.
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APPLICANT ’S CLAIM FOR INTERIM PAYMENT:
[15] Since the merits had become settled between the parties the Applicant’s legal
representatives on 5 December 2022 in writing - via e lectronic mail - appealed - to
the Respondent for an interim offer in respect of past hospital and medical expenses.
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1 04-266
2 04-268
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[16] In doing so the Applicant provided the Respondent with a schedule of past
hospital and medical expenses totalling R988 183.144 (paid by the Applicant’s
medical aid), and hospital records from Netcare Union Hospital, Auckland Park
Rehabilitation Hospital and Glynwood Hospital .5
[17] The Applicant ’s request stemmed , as explained in his affidavit, from the
incurrence of substantial hospital and medical expenses and the availability of the
necessary and disposable means by the Respondent as it receives fuel levies .
[18] The rule, providing a mechanism to obtain an interim payment pending the
finalization of a Plaintiff’s Road Accident claim , is Rule 34A of the Uniform Rules of
Court which was introduced by GN R2164 of 2 October 1987.
[19] Rule 34A affords interim financial relief to a Plaintiff in an action for damages
for personal injuries, or injuries consequent upon the death of a person and is
worded as follows:
"34A ( 1) Interim payments. — (1) In an action for damages for personal
injuries on the death of a person, the plaintiff may, at any time after the expiry
of the period for the delivery of the notice of intention to defend, apply to the
court for an order requiring the defendant to make an interim payment in respect of his claim for medical costs and loss of income arising from his physical disability or the death of a person.
(2) Subject to the provisions of rule 6 the affidavit in support of the application
shall contain the amount of damages claimed and the grounds for the application, and all documentary proof or certified copies thereof on which the applicant relies shall accompany the affidavit.
(3) Notwithstanding the grant or refusal of an application for an interim
payment, further such applications may be brought on good cause s hown.
(4) If at the hearing of such an application, the court is satisfied that —
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(a) the defendant against whom the order is sought has in writing admitted
liability for the plaintiff's damages; or
(b) the plaintiff has obtained judgment against the defendant for damages
to be determined, the court may if it thinks fit but subject to the provisions of
sub-rule (5), order the defendant to make an interim payment of such amount
as it thinks just, which amount shall not exceed a reasonable proportion of the
damages which in the opinion of the court are likely to be recovered by the plaintiff taking into account any contributory negligence, set off or counterclaim."
[20] Rule 34A provides a procedure which alleviates the financial burden suffered
from medical treatment and/or loss of earning capacity caused by the often long- and
extended- time frames within which a trial action is ultimately finalised.
[21] It is well known that r oad accident victims often experience dire financial
straits due to the burden of medical treatment and a partial reduction, or even total
loss, of earning capacity . The third-party claims against the R oad Accident Fund are
prone to delay. This is due to various reasons for instance the large number of
accidents on South African roads giving rise to third party claims , the Fund’s
incapacity , and the congested South African court rolls to name a few. Whilst these
victims may have a claim against the R oad Accident Fund, such claims may take
years to finalize .
[22] The Applicant/Plaintiff in an action for damages for personal injuries may
therefore apply to the court for an order requiring the Defendant/Respondent to
make an interim payment after delivery of a Notice of Appearance t o Defend in
respect of a claim for medical costs and loss of income arising from his /her physical
disability. The relief in Rule 34A is restricted to the P laintiff's claim for medical costs
and loss of income arising from physical disability or the death of another person.
[23] The Applicant in this matter had entered an appearance to defend, filed a
Plea and is therefore entitled to bring an application for an interim payment order.
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[24] However more importantly , at the hearing the Applicant had to, in terms of
Rule 34A(4) (a)–(b) satisfy the court that the Respondent/Defendant had:
[23.1] either in writing admitted liability for the Applicant/Plaintiff’s damages
or
[23.2] that the Plaintiff /Applicant had already obtained a judgment confirming
the Defendant /Respondent’s liability for damages (my underlining) .
[25] In Harmse v Road Accident Fund6 these abovesaid requirements for an
interim order at the hearing is confirmed:
"The court held that only in instances where the respondent has admitted
liability or Applicant had obtained judgment for damages, may a court order
an interim payment. Rule 34A envisages a clear, unequivocal and
unconditional admission of liability for it to find application." (my underlining)
[26] Rule 34A accordingly envisages a clear, unequivocal and unconditional
admission of liability for its application. The court may therefore only grant an interim
order in terms of Rule 34A , if liability is admitted in writing or there is a judgment.
[27] The question for consideration in this matter boils down to whether there was
a written admission of liability for damages or not , as there is clearly no judgment
against the Respondent for damages .
[28] In assessing whether there is a written admission of liability for damages, I will
examine the wording of the offer made by the Respondent, the Plea and the Answering Affidavit.
WORDING OF THE OFFER:
[29] The offer was worded as follows:
“The Road Accident Fund (RAF) has considered the available evidence
relating to the manner in which the motor vehicle accident giving rise -to this
claim occurred. The RAF has concluded that the collision resulted from
6 [2010] ZAGPPHC 11 (24 February 2010),
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the sole negligence of the RAF's insured driver. Consequently; without
prejudice, the RAF offers to settle the issue of negligence vis- a-vis the
occurrence of the motor vehicle collision on the basis that the insured
driver was solely negligent in causing the motor vehicle collision.
This offer is limited to the aspect of negligence as to the manner in
which the collision occurred. This offer may not be interpreted or
construed in a manner that would have the RAF concede any other
aspect of the claim . To avoid doubt, the RAF reserves all its rights in law
with regards to all other procedural and substantive aspects of the claim ”. (my
accentuation and underlining)
[30] It is abundantly clear from the wording that the Respondent re currentl y
declares that the issue of negligence had been settled and more specifically in
amplification states that the said offer was limited or restricted to the aspect of
negligence as to how the collision occurred.
[31] The Respondent thereafter explicitly asserts that the interpretation of the offer
was not open to construction in a way that w ould have the R espondent concede to
any other aspect of the claim .
[32] My reading and understanding of this offer is therefore that there is simply an
admission of negligence. All other aspects of the delictual claim namely the
causality, the injuries sustained, and all the damages (hospital, medical and related
expenses) suffered are all still in dispute and needed to be proven by the Applicant.
[33] The Respondent is unambiguously stipulating and declaring that the Fund is
not agreeing or conceding to any other part of the Applicant’s claim and that same
will have to be proved with evidence.
[34] If one has regard to the Respondent’s Plea
7 it is evident that the Respondent
denies causality, the injuries sustained, the damages and the amount claimed. The
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past hospital and medical expenses in respect of various institutions and
practitioners are also denied.8
[35] In the Answering Affidavit the Respondent specifically states that the
Applicant must prove the admitted liability.
9 The deponent to the said affidavit, in
addition, clearly pleads that the merits offer was only a written admission that the
accident was caused by the sole negligence of the insured driver.
[36] The Respondent specifically states that the Applicant did not admit liability.
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[37] The Respondent also places causality between the injuries sustained and the
accident in dispute.11
[38] I can accordingly not come to any other conclusion than that, save for
admitting the issue of negligence, the Respondent did not in writing admit liability . All
other aspects of the claim are in dispute and need to be proven by the Applicant at
trial stage.
[39] In Alexander & three others v Road Accident
Fund12, an application like the
one before me, the court also had to decide whether the offer upon which the
Applicants relied as constituting the D efendant’s written admissions of liability could
be construed as admission of liability by the D efendant as envisaged by rule
34A(4)(a) . The relevant part of the document reads as follow:
“The RAF has concluded that the collision resulted from the
sole negligence of the RAF’s insured driver.
… the RAF offers to settle the issue of negligence vis-à-vis the occurrence of
the motor vehicle collision on the basis that the insured driver wa s
solely negligent in causing the motor vehicle collision.
This offer is limited to the aspect of negligence as to the manner in which the
collision occurred. This offer may not be interpreted or construed in a manner
8 Ad Par 10 – 18 at 02- 17
9 Par 12 at 04- 494
10 Par 14 at 04- 494
11 Par 14 at 04- 494
12 [2023] ZAGPJHC 112 (11 February 2023)
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that would have the RAF concede any other aspect of the claim . To avoid
doubt, the RAF reserves all its rights in law with regards to all
other procedural and substantive aspects of the claim .”
[40] At paragraph 36 of the Alexander matter Moultrie AJ stated :
"In the current applications, the documents relied upon by the plaintiffs could hardly be clearer: the Fund's admission is "limited to the aspect of negligence
as to the manner in which the collision occurred". It is expressly stated that no concession is made in relation to "any other aspect of the claim" and that the Fund "reserves all its rights in l aw with regards to all ... procedural and
substantive aspects" of the claims, other than negligence. In particular, the
Fund has neither admitted (i) that the plaintiffs are suffering any bodily injury
at all; nor (it) that any such bodily injury arose from the negligently caused
collision . In other words, apart from quantum, both bodily injury (or "harm" in
delictual terms) and causation remain in dispute, and there has been no admission of "liability" for any damages that might in due course be proven, as required by Rule 34A(4)(a). ”
[41] The wording of the offer in the Alexand er matter is identical to the matter
before me in that it states:
“This offer is limited to the aspect of negligence as to the manner in which the
collision occurred. This offer may not be interpreted or construed in a manner
that would have the RAF concede any other aspect of the claim .”
[42] Moultrie AJ interpreted and read the offer in the exact same manner as I did.
[43] Subsequently in Qelesile v Road Accident Fund
13 it was confirmed that Rule
34A ( 4) necessitated an admission of all the delictual elements and not only
negligence.
" That the crux of Alexander was to the effect that the admission of liability by
a
Defendant in terms of rule 34(4)(a) necessitated an admission of all the
requirements of the elements of a delict, not only negligence. 32 In other
13 (2023] ZAGPJHC 221 (24 February 2023)
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words, the admission of negligence by the defendant is not all that is required
to meet the requirements of rule 34A (4)(a).”
[44] In other words, the admission of negligence by the D efendant is simply not
enough to meet the requirements of rule 34A(4)(a). The reasoning in Alexander was
accordingly accepted.
[45] The Applicant/Plaintiff i n the Qelesile matter argued that rule 34A(4)(a) was
merely a procedural mechanism invoked in conjunction with rule 34A(1) to compel
the Defendant to discharge its concomitant obligation under section 17 of the R oad
Accident Fund Act, 56 of 1996 (“RAF Act”)
[46] It is imperative (for the purposes of interim payment) to have regard to the
proviso in section 17(6) of the R AF Act. Section 17(6) of the said Act provides as
follows —
“The Fund, or an agent with the approval of the Fund, may make an interim
payment to the third party out of the amount to be awarded in terms of section (17)(1) to the third party in respect of medical costs, in accordance with the
tariff contemplated in subsection (4B), loss of income and loss of support:
Provided that the Fund or agent shall, notwithstanding anything to the
contrary in any law contained, only be liable to make an interim payment in so far as such costs have already been incurred and any s uch losses have
already been suffered”.
[47] The court in Qelesile stated that section 17(6) of the RAF Act is couched in
permissive language having employed the word “ may”. The court went on to explain
that, despite the word “ may” , the proviso contained in section 17(6) that attaches
liability for interim payments , does place a duty on the D efendant to make such
interim payments. However, the court explained that such a duty is not unqualified
but is qualified by section 17(1) of the RAF Act. In other words, any interim payment
(in terms of section 17(6)) shall be made from the compensation to be awarded in terms of section 17(1) of the RAF Act.
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[48] In so far as section 17(1) of the RAF Act is concerned, it is worth noting that
the section provides that an award for compensation may only be made if the loss or
damage suffered by a third party was caused by, or arose from, the driving of a motor vehicle and only if the injury or death was due to negligence or other wrongful
act of such a driver.
[49] The court accordingly came to the conclusion that, even if it can be argued
that rule 3 4A(4)(a) was merely a procedural mechanism invoked in conjunction with
rule 34A(1) to compel the defendant to discharge its concomitant obligation under
section 17 of the R oad Accident Fund Act the argument can simply not be upheld. In
this regard, the court held that the express phrases in section 17(1) patently relate to
and require causation (one of the essential elements of a delict) to be proved or conceded. Further, given the fact that any interim payment (in terms of section 17(6))
shall be made from the compensation to be awarded in terms of section 17(1), the
admission of liability solely on negligence will not suffice. Accordingly, the court held
that section 17(6) read with section 17(1) of the RAF Act does not cure the prima
facie hurdle faced by the P laintiff in proving the admission of liability by a D efendant
in terms of rule 34A(4)(a).
[50] As was the case in Alexander , the Applicants/ Plaintiffs , in the Qelesile matter
also relied on a document which admitted the D efendant’s negligence in the
accident. The following was stated:
“In order for the Plaintiffs’ contention to have any merit, the word “liability” in
Rule 34A(4)(a) would have to be interpreted as meaning “negligence”. Such
an interpretation would have the effect of defeating the very circumscription of
the substantive right set out in section 17(6) read with section 17(1) of the RAF Act. Such an interpretation is impermissible as it would mean that Rule 34A(4)(a), which is the procedure created to give effect to claims as is
envisaged in terms of section 17(6) read with section 17(1) of the RAF Act,
would bring in or allow claims that do not fall within the said sections’
purview .”
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[51] Opperman J also indicated and echoed in Jordaan v Road Accident Fund14 at
paragraph 47 that the Applicant must proof all the jurisdictional requirements of a
delict as set out in Rule 34A( 4) and that any document conceding liability must be an
admission of all the elements :
"In view of the preceding discussion, it would appear that the defendant, in this matter before me, relied on the same document conceding liability but specifically denied that it is liable for any other aspects of the plaintiff's claim.
In light of this, the plaintiff
has not proven all the jurisdictional requirements
as set out in the rule and
therefore, her application for an interim payment
stands to be rejected. ”
[52] In the Jordaan matter the Defendant/Respondent also relied on a document
conceding liability but specifically denied that it was liable for any other aspects of
the Plaintiff’s claim. Opperman J concluded that the Plaintiff did not proof all the
jurisdictional requirements as set out in Rule 34A and rightly so rejected the interim
payment.
[53] The court in Karpakis v Mutual & Federal Insurance Co Ltd
15 held that the
Plaintiff is only able to be awarded an interim payment in terms of Rule 34A(4)(a) if
the Defendant has in writing conceded liability or had obtained a judgment under
Rule 34A (4)(b).
"Under Rule 34A (4)(a) and (b) the respondent's (defendant's) position is a
strong one because an interim payment can only be ordered if, inter alia, the
defendant has in writing admitted liability for the plaintiff's damages, that is to
say if the defendant has conceded the merits of the action (which is the case
in the present action) or if the plaintiff has obtained judgment against the
defendant for damages still to be determined, that is to say where the issues
of the merits and of the quantum of damages were separated at the
commencement of the trial in terms of Rule 33(4)." (my underlining)
[54] In view of the aforesaid, it is evident that the Respondent , in th e matter before
me, relied on an identical offer as to the offers in the aforesaid matters. The
14 [2023] ZAGPJHC 1260 (3 November 2023)
15 1991 (3) SA 489 (O) at -497D -F.
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Respondent conceded liability but specifically denied that it was liable for any other
aspects of the Applicant’s claim. The Applicant has accordingly not proven all the
jurisdictional requirements as set out in rule 34A .
[55] The requirements for an interim order as set out in Rule 34A(4)(a) and (b)
namely, a written admission of liability or a judgment are both absent in the
application before me. The Respondent had solely admitted negligence to the
exclusion of all other aspects of a delict. Accordingly, the Applicant’s application for
an interim payment stands to be dismissed.
Order
[56] As a result, I make the following order:
[56.1] The Application for an i nterim payment in the amount of R989 448.84 is
dismissed;
[56.2] The Applicant is ordered to pay the costs of this application.
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT
JOHANNESBURG
Heard On: 24 February 2025
Date of Judgment: 6 March 2025
For the Applicant: Adv RV Mudau
Instructed by
A Wolmarans Inc
For the Respondent: No appearance