IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MONICA NICOLEEN VAN NIEKERK
and NOT REPORT ABLE
Case no: 293/2022
Plaintiff
ROAD ACCIDENT FUND Defendant
Coram: JP DAFFUE J
Heard: 29 APRIL 2025
Reasons: 06 MAY 2025
Reasons were handed down electronically by circulation to the parties' representatives
by email and release to SAFLII. The date and time for hand-down is deemed to be
13H00 on 06 MAY 2025.
Summary: Claim for past hospital and medical costs, the plaintiff's other claims
relating to injuries suffered in a motor vehicle collision having been settled earlier. On
the date of the hearing the RAF sought a postponement from the bar to amend its plea
in order to dispute liability as the plaintiffs costs had been paid by her medical aid
fund. The application was dismissed. The court granted leave in terms of rule 38(2)
for evidence to be given on affidavit whereupon the plaintiffs claim was granted.
Daffue J
Introduction REASONS
[1 l On 29 April 2025, I granted the following orders: 2
'1. The defendant's application for postponement is dismissed, reasons to follow in due
course.
2. The plaintiffs application in terms of rule 38(2) dated 1 0 April 2025 filed with the court
on 23 April 2025 is granted.
3. The defendant shall pay R83 787. 76, the 15% apportionment having been deducted,
to the plaintiff for her past hospital and medical expenses within 14 (fourteen) days from this
order.
4. The defendant shall pay the plaintiff's taxed or agreed costs since 3 December 2024
to date hereof on the High Court scale as between party and party, the counsel's fees to be
taxed on scale 8.'
[2] Postponements are not there for the taking. This is yet another case where the
Road Accident Fund (RAF), the defendant in this action, failed to live up to the
standards expected of litigants and statutory bodies in particular. More about this later.
The parties
[3] The plaintiff in the third-party claim is Ms Monica Nicoleen van Niekerk, a major
female residing in Bloemfontein.
[4] As mentioned, the RAF is the defendant in the action.
The collision and the history of the litigation
[5] On 30 August 2019 the plaintiff was involved in a motor vehicle collision. She
sustained the following injuries:
a. an injury to the first tarso-metatarsal joint on the left foot with joint space
narrowing;
b. fractures of the second, third and fourth metatarsal bones of the left foot;
c. a lumber spine injury with disc space narrowing at the L4/5 and L5/S1 levels.
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[6] The plaintiff, through her attorneys, lodged a claim with the RAF on 29 June
2021. She complied with all her statutory obligations .
[7] On 25 January 2022 the plaintiff's combined summons was issued whereafter
it was served on the RAF. Several months later a special plea was filed, relying on
non-compliance with s 24 read with s 17 of the Road Accident Fund Act 56 of 1996
and alleging that the plaintiff's claim had prescribed. The RAF also pleaded over on
the merits. Soon thereafter it became aware of the wrong allegation pertaining to
prescription and served an amended plea, withdrawing the special plea based on
prescription.
[8] The first rule 37 conference was held on 16 October 2023. After the matter was
certified trial-ready in respect of the merits, it was set down and eventually settled. On
30 July 2024 the court made an order by agreement to the effect that the RAF was
liable for 85% of the plaintiff's proven or agreed damages.
[9] Hereafter a further rule 37 conference was held and on 19 August 2024 the
matter was certified trial-ready in respect of the quantum of the claim. On 3 December
2024 the parties settled the plaintiff's claim for general damages and loss of earnings.
They agreed to postpone the claim for past hospital and medical expenses to the pre
trial roll of 3 February 2025 on which date the matter was declared trial-ready
whereupon it was set down for hearing on 29 April 2025.
[1 O] After this matter was allocated to me for adjudication of the remainder of the
plaintiff's claim, I requested my secretary to send an email to the parties on 24 April
2025 to establish:
a. which of the items in the medical accounts were still in dispute with reference
to the date of each account and the items reflected therein;
b. whether the plaintiff's application in terms of rule 38(2) would be opposed.
Ms Gouws on behalf of the RAF responded to the email, confirming that she was
awaiting instructions.
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[11] On the date of the hearing, ie 29 April 2025, I was informed in chambers that
the RAF intended to apply for a postponement in order to amend its plea. The plaintiff's
counsel made it clear that the application would be opposed.
The application for postponement
[12] When the matter was called in open court, Ms Gouws from the bar moved for
the postponement of the case. No formal application for postponement was served
and filed and obviously also no affidavit to explain the reasons for postponement. I
was merely told that the RAF intended to apply for an amendment of the plea in line
with a notice to amend in a different case, a copy of which was handed to me. It is
apparent from this document that the RAF now intends to rely on the fact that the
plaintiff was a member of a medical aid fund and that her past hospital and medical
expenses have been paid by the medical aid fund. Therefore, the plaintiff suffered no
damages. In line with the proposed amendment in the matter referred to by Ms Gouws,
the RAF also intends to plead that the past hospital and medical expenses constituted
Prescribed Minimum Benefits (PMB's) and/or treatment for Emergency Medical
Conditions (EMC's) which the plaintiff's medical aid fund was statutory obliged to pay.
[13] I referred to the history of the litigation above. Notwithstanding the fact that the
plaintiff's claim was lodged with the RAF nearly four years ago after sustaining her
injuries nearly six years ago, the RAF has now decided at the eleventh hour to ask for
a postponement to amend. Ms Gouws submitted that there could not be any prejudice
for the plaintiff as her hospital and medical costs had already been paid by her medical
aid fund. Ms Gouws was not in possession of a so-called 'Bill Review' and could not
make any submissions as to what items could or would be objected to on the basis
that these constitute PMB's or EMC's.
[14] I deem it appropriate to refer to the following trite and relevant principles
applicable to applications for postponement. These applications shall be made
timeously and it is expected of the applicant for postponement to explain their
predicament fully and satisfactorily. The Constitutional Court held as follows in
Leko/wane and Another v Minister of Justice (Lekolwane):1
'The postponement of a matter set down for hearing on a particular date cannot be claimed
as a right. An applicant for a postponement seeks an indulgence from the court. A
1 [2006] ZACC 19; 2007 (3) BCLR 280 (CC) para 17.
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postponement will not be granted, unless this Court is satisfied that it is in the interests of
justice to do so. In this respect the applicant must ordinarily show that there is good cause for
the postponement. Whether a postponement will be granted is therefore in the discretion of
the court. In exercising that discretion, this Court takes into account a number of factors,
including (but not limited to) whether the application has been timeously made, whether the
explanation given by the applicant for postponement is full and satisfactory, whether there is
prejudice to any of the parties, whether the application is opposed and the broader public
interest. All these factors, to the extent appropriate, together with the prospects of success on
the merits of the matter, will be weighed by the court to determine whether it is in the interests
of justice to grant the application.'
[15] In Shilubana and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as amici curiae)2 the Constitutional Court referred to
Leko/wane with approval in the following words:
'In Leko/wane and Another v Minister of Justice and Constitutional Development this Court
added the following factors to be considered in granting a postponement: (1) the broader
public interest; and (2) the prospects of success on the merits. The following factors could non
exhaustively be added to the above: the reason for the lateness of the application if not
timeously made; the conduct of counsel; the costs involved in the postponement ; the potential
prejudice to other interested parties; the consequences of not granting a postponement; and
the scope of the issues that ultimately must be decided. In balancing these factors it is of vital
importance to keep in mind that -
"(w)hat is in the interests of justice will ... be determined not only by what is in the interests of the
parties themselves, but also by what, in the opinion of the Court, is in the public interest. The interests
of justice may require that a litigant be granted more time, but account will also be taken of the need
to have matters before this Court finalised without undue delay."'(footnotes omitted)
[16] In National Police Service Union and Others v Minister of Safety and Security
and Othersl41 the Constitutional Court stated:
'Ordinarily ... if an application for a postponement is to be made on the day of the hearing of
a case, the legal representatives ... must appear and be ready to assist the Court both in
regard to the application for the postponement itself and, if the application is refused, the
consequences that would follow.'
2 2007 (5) SA 620 para 11.
[41 2000 (4) SA 1110 (CC) at 111 D; dictum referred to with approval in Shilubana and Others v
Nwamitwa /oc cit para 15.
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[17] This is a typical case that all too often surfaces in our courts. I do not have to
say more, than to refer with respect to the observations of the Supreme Court of
Appeal in Magistrate Pangarker v Botha and Another. 3
[18] I am aware of the controversy about claims for past medical and hospital
expenses having been paid by plaintiffs' medical aid funds. I am satisfied that the
common law position is still relevant and should be followed, ie that a third party cannot
rely on a defence that plaintiffs suffered no loss because they have been indemnified
by their medical aid funds. I refer also to the recent judgment in Discovery Health (Ply)
Ltd v Road Accident Fund and Another4 which confirms this. Both the Supreme Court
of Appeal and the Constitutional Court have dismissed the RAF's attempt to appeal
the judgment.
[19] I am also aware of the judgment in Discovery Health (Ply) Ltd v Road Accident
Fund and Another.5 In my view there is no reason why the plaintiff should wait to see
what will eventually happen with the further litigation which may also find its way to the
Constitutional Court several years later. I am aware of the stare decisis doctrine, but
am satisfied that I am not bound to either follow this judgment, or wait for the outcome
on appeal. This judgment of another division of the High Court is not binding precedent
that has to be followed in this division. It is merely persuasive. I am not prepared to
follow it.
[20] The RAF is clearly relying on delaying tactics. If it was really serious with its
intended amendment, this should have been done more than a year ago, or at the very
best, at the stage when the matter was postponement in December 2024 for the
adjudication of this part of the plaintiffs claim. Its Chief Executive Officer has issued
the directives to be relied upon already in 2023. Also, in February 2025 and during the
pre-trial conference the presiding judge was not alerted to the fact that an amendment
still needed to be sought.
3 2015 (1) SA 503 (SCA) paras 22 to 38.
4 2023 (2) SA 212 (GP).
5 2025 (3) SA 225 (GP).
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The plaintiffs claim
[21] The plaintiff requested leave for evidence to be given on affidavit by her and
the team leader of her medical aid fund in terms of rule 38(2). All relevant invoices
issued and paid were annexed to the affidavits. The RAF did not file a notice to oppose
this application and I consequently granted the relief sought.
(22] Once the 15% apportionment has been deducted from the total claim, I was
satisfied that the plaintiff has proven an entitlement to payment in the amount of ...
RS~ 787.76. Consequently, judgment was granted for payment of this amount as well
as the plaintiffs taxed or agreed costs incurred since 3 December 2024.
Appearances
For plaintiff:
Instructed by:
For the defendant:
Instructed by: Adv AJ du Toit
DSC Attorneys
c/o Rosendorff Reitz Barry
Bloemfontein
Ms J Gouws
Road Accident Fund
Bloemfontein 8