(1) REPORTA BLE : NO
(2) OF INTER EST TO OTHER
JUDGES: YES /
(3) REVI SED. ./
DATE: ~ 'l,0
SIGNATURE
In the matter between:
EMM MULLER
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA )
'
SAMUEL SITHOLE
HERMANUSLUKASKRAUSE
RAMOLETSI SARAH MAKGOPA
LEON BEZUIDENHOUT
and
ROAD ACCIDENT FUND
Case n o. 2016/20672
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
First Respondent
2
CEO OF THE RAF - COLLINS PHUT JANE LETSOALE Second Respondent
JUDGMENT
The judgment and order are published and distributed electronically.
Summary:
Application fo r d eclaratory order that RAF is entitled to issue section 17(4)(a) undertakings
which specify injuries and envisaged treatment (" injury specific undertakings"). Held that issue
had been d efinitively determined by courts. Further held that purpose of section 21 (l)(c) of
Superior Courts Act is not to grant a declarator which is required for the convenience of a party
or faci litate administration, but for the purpose of determining existing, future or contingent
rights or obligations. Court accordingly refused to exercise discretion to grant orders.
PA VAN NIEKERK. J
INTRODUCTION:
[1] In a counter-application the Respondents seek an order in the following terms:
"1. That a declarator be granted confirming that the RAF is entitled to issue undertakings in compliance
with its statutory obligation provided for in Section 17(4)(a) of the RAF Act, that specify the injuries
and envisaged treatment covered by the relevant undertakings ("injury specific undertakings");
2. That the RAF is not obliged in terms o f Section 17(4)(a) of the RAF Act to issue open-ended
certificates to claimants allowing claimants to receive treatment for injuries and/or illnesses that are
not causally linked to the injuries suffered in the relevant motor vehicle collision and/or are not
caused by the relevant motor vehicle collision, that formed the basis of the liability of RAF in the first
place;
3
3. No order as to costs, save in the event that the Applicant or any other party opposes the relief
claimed, then in such event the Applicant and/or any such party be ordered to pay the costs of such
application;n
[2] The counter-application follows on a chequered history of litigation between the First
Applicant and First Respondent, which eventually culminated in the Second- to Fifth
Applicants being joined as interested parties in the litigation after the counter-application
was instituted by the Respondents. The material events in this history can concisely be
summarised as follows:
[2.1] First Applicant instituted an action against First Respondent during March 2016,
claiming damages pursuant to injuries sustained in a motor vehicle accident and
for which damages the First Respondent was held to be liable for 100% of the
First Applicant's proven or agreed damages in terms of an order of this court dated
30 November 2017;
[2.2] On 16 October 2020 the issue of First Applicant's claim for general damages was
finalised and on that date this court made a further order in the matter which
included the following order:
" The Defendant furnishes the Plaintiff with an undertaking in terms of Section
17(4)(a) of Act 57 of 1996, for injuries the Plaintiff sustained in a motor vehicle
collision on 27 September 2015, after such costs had been incurred and upon
proof thereof' .
[2.3] First Respondent failed to comply with the order to provide the undertaking and
after attempts were made by the First Applicant's attorney of record to procure
such an undertaking from the First Respondent, an application was launched to
4
this court to compel the First- and Second Respondents to furnish the undertaking.
That order was granted on 23 February 2022;
(2.4) Notwithstanding the original order to furnish an undertaking dated 16 October
2020 and the subsequent order to compel the undertaking dated 23 February
2022, Respondents remained in default. First Applicant then launched an
application for contempt of court where the Second Respondent was joined in his
capacity as the Executive Officer of the First Respondent and in which application
it was inter alia averred that the order of 23 February 2022 was served on Second
Respondent and that correspondence was also addressed to Second Respondent
in relation to the First Respondent's default to comply with the order to furnish an
undertaking, to no avail;
(2.5) First- and Second Respondents served a Notice of Intention to oppose the
contempt application on 23 November 2023, but failed to take further steps as a
result of which the matter was set down on the unopposed roll. The Respondents
eventually filed an Answering Affidavit and counter-application, as well as an
application for condonation for the late filing of the opposing affidavit, and the
parties thereafter exchanged further affidavits in their respective capacities as
applicants and/or respondents in the main application and counter-application;
The matter was initially enrolled on the unopposed motion court roll, then removed
from that roll, then enrolled on the opposed motion court roll without the
Respondents' opposing affidavit, then removed from that roll and again enrolled as
an opposed motion, all caused by Respondents' repeated failures to comply with
the relevant court rules and directives.
5
(2.6] During the period March to April 2025 Second-, Third-, Fourth- and Fifth
Applicants were granted leave to intervene as a result of the relief sought by
Respondents in the counter-application. The Second- to Fifth Applicants similarly
obtained orders against First Respondent to furnish an undertaking which First
Respondent failed to provide or in the alternative, eventually provided with certain
caveats which were unacceptable to the Applicants;
(2. 7] The matter would normally have been enrolled for hearing during 2025 but as a
result of the fact that the parties estimated the hearing of the matter to exceed the
time limitation for opposed applications to be set down on the normal opposed
Motion Court roll, the Deputy Judge President of this division directed that the
matter be heard as a special motion.
[3] Prior to the hearing of the matter the parties provided Practice Notes from which it
transpires that the parties are ad idem that it is only the Respondents' counter-application
which is enrolled for adjudication and that the relief sought by Applicants in the main
application, namely the contempt application, stands to be enrolled at a later date.
THE DISPUTE BETWEEN THE PARTIES :
[4] From a perusal of the respective affidavits filed on behalf of the parties, it transpires that the
following issues ensued between the parties:
(4.1] First Respondent was ordered to provide undertakings to the Applicants in terms
of section 17(4)(a) of the Road Accident Fund Act 57 of 1996 (" RAF Act") in terms
of court orders issued from this court, and thereafter eventually provided
undertakings which the Applicants refused to accept as, according to the
6
Applicants, these undertakings do not comply with the court orders because it
contained conditions and/or qualifications and/or restrictions and do not strictly
follow the wording of section 17(4)(a) of RAF and/or do not comply with the
relevant court orders.
[4.2] In the application terminology is used to describe the caveats in these
undertakings provided by First Respondent such as "injuries specffic undertaking s"
and/or "treatment specific undertakings" while Respondents in the affidavits as well
as the words used in prayer 1 of the Notice of Counter-application also refers to
"injuries specffic undertakings". Alternative terminology used in the papers refers
to "baskets care" undertakings.
[5] It appears from the affidavits submitted on behalf of the Applicants that the First
Respondent provided undertakings which is referred to as a "contractual undertaking''
which inter alia have one or more of the following features:
[5.1] It limits treatment within the borders of the RSA;
[5.2] The compensation for future medical expenses is limited by the contractual
undertaking to the Manage Healthcare Guidelines and Principles;
[5.3] It excludes social and inter-facility transfers and excludes minor post-operative
care;
[5.4] First Respondent reserves for itself the right to "pre-authorise " treatment;
[5.5] The contractual undertaking lists a number of items which it will not pay as well as
implementing validations.
7
[6] In summary, it was common cause that these undertakings as provided by First
Respondent and which the Applicants refused to accept do not follow the wording of the
court orders in terms whereof First Respondent was ordered to provide an undertaking, and
they do not follow the wording of Section 17(4)(a) of the RAF Act. During argument of the
matter Respondents' counsel strongly argued that, in essence, what the First Respondent
seeks to achieve is an improved facilitation of administration of claims received from
claimants under Section 17(4)(a) by recording in the undertaking the specific injuries for
which such undertaking is provided and it is to be noted that the contents of paragraph 1 of
the Notice of Motion of the counter-application specifically refers to "injury specific
undertakings".
[7] In support of the necessity for an order declaring the First Respondent to be entitled to
issue an undertaking that specify the injuries and envisaged treatment cover by the
relevant undertakings ("injuries specific undertakings") the Second Respondent deposed to
an affidavit and inter alia made the following averments:
[7.1] Historically the First Respondent used to provide claimants with non-specific
undertakings which were akin to what is commonly referred to as "a blank
cheque". After Respondent implemented a new system, claimants are dissatisfied
and their attorneys refuse to accept such new injury specific undertakings in terms
of the new system, which leads to applications against the First Respondent to
issue "blanker undertakings; I pause here to note that this averment is not entirely
correct. Any Judge of this division will be aware of the substantial number of
applications against the First Respondent which finds its way onto the unopposed
motion court roll of this division where claimants seek orders against First
8
Respondent to comply its first obligation to issue an undertaking after remaining in
default to do so, court orders notwithstanding.
[7.2) Claims based on undertakings issued in terms of Section 17(4)(a) of RAF Act are
usually provided and requested long after the relevant certificates have been
issued, in some instances decades later, which leads to a very material, practical
and almost unsurmountable problem should the detail of the injuries and/or
treatment envisaged not be clearly specified in the certificate. In substantiation of
this averment Second Respondent makes the following allegation:
"When officials of the RAF receive claims from service providers and/or claimants
relating to treatment provided many years after an undertaking had been issued,
those officials will have no clarity whether the treatment was specific and appropriate
to the injuries sustained. These RAF officials will then have to obtain access to the
initial record, including expert reports, relevant pathology and radiology studies, to
determine whether expenses claimed and treatment provided were indeed covered
by the relevant undertaking. This intensive clinical validation exercise needs to be
repeated each time and an undertaking claim is reviewed, based on such
undertakingn.
ISSUES FOR DETERMINATION :
[8] In paragraph 1 of the Notice of Motion in the counterapplication, the Respondents seek an
order declaring the entitlement of First Respondent to issue an undertaking which is
qualified in relation to the envisaged treatment, based on the specific injuries sustained
during the motor vehicle accident which created the liability of the First Respondent.
Paragraph 2 of the Notice of Motion in the counter application does nothing more than seek
9
an order to confirm the trite legal position namely that an undertaking in terms of section
17(4)(a) of RAF act is restricted to treatment of injuries sustained in the motor vehicle
accident referred to in section 17(1) of RAF act and is not an open or unrestricted
undertaking.
[9] This court's jurisdiction to grant a declaratory order is derived from the provisions of Section
21(1)(c) of the Superior Courts Act 10 of 2013. In Lueven Metals v Commissioner for
SARS
1 the court explained the approach to be followed by a court when called upon to
exercise a discretion under Section 21(1)(c) of the Superior Courts Act as follows:
"Section 21 (1 )(c) of the Superior Courts Act 10 of 2013 provides a statutory basis for
the grant of declaratory orders without removing the common law jurisdiction to do
so. It is a discretionary remedy. The question whether or not relief should be granted
under the section has to be examined in two stages. In the first place, the
jurisdictional facts have to be established. When this has been done, the court must
decide whether the case is a proper one for the exercise of its discretion. Thus,
even if the jurisdictional requirements are met, an applicant does not have an
entitlement to an order. It is for such applicant to show that the circumstances justify
the grant or an order '.
[1 0] The jurisdictional facts that must be established are namely whether the applicant has an
interest in an existing, future or contingent right or obligation.2 In Queen Sibongile Winnifred
1 Leuven Metals v Commissioner for SARS {2023] ZASCA 144 par. 12
2 See: Cordiant Trading CC v Daimler-Chrysler Financial Services (Pty) Ltd {2005] ZASCA 50; 2005 (6) SA 205
(SCA) par. {18}
10
Zulu v Queen Buhle Mathe & Others
3 the court referred to the enquiry whether the order
for declaratory relief should be granted as follows:
"The court considers whether an applicant in seeking such an order has a standing
in terms of Section 38 of the constitution. In addition, the doctrine of ripeness is at
issue, as consideration is given to whether prejudice has already resulted or is
inevitable, irrespective of whether the action is complete or not. The doctrine of
ripeness must also require an enquiry as to whether alternative remedies have been
exhausted. This is termed premature action. As aforesaid, Section 21(1)(c) of the
Superior Courts Act 10 of 2013 enjoins the High Court 'in its discretion and at the
insistence of any interested person to enquire into and determine any existing, future
or contingent right or obligation, notwithstanding that such person cannot claim any
relief consequently upon determination'. In addition, a court will not grant a
declaratory order on moot or academic issues, as this would conflict with the
doctrine of effectiveness".
(11) In the aforesaid decision4 it was further held that it does not follow that the court must
exercise its discretion in favour of an applicant that has established the jurisdictional facts,
but that the discretion is exercised in the light of all relevant considerations. It is trite law
that, despite the jurisdictional facts having been proved, the court may exercise its
discretion against an applicant if the declaratory relief would be abstract, academic or
hypothetical. Additionally, it was held that the court may refuse to grant a declaratory order
3 Queen Sibongile Winnifred Zulu v Queen Buhle Mathe & Others 2024 JDR 1017 SCA para. [12)
4 See: Queen Sibongile Winnifred Zulu v Queen Buhle Mathe & Others, supra, par. [13)
11
when the subject matter of the order sought had been definitively determined by a court or
the legislator.5
[12] In casu, there is no doubt (and it was not argued otherwise by Applicants) that
Respondents established the jurisdictional facts to enable this court to exercise a discretion
under Section 21(1)(c) of the Superior Courts Act 10 of 2013. This court should therefore
proceed to the second stage of the enquiry namely to determine whether this court should
exercise its discretion in favour of the Respondents to grant the relief as claimed in the
Notice of Motion in the counter-application for declaratory orders.
EXERCISE OF DISCRETION :
[13] The permissible content of an undertaking in terms of section 17(4)(a) of RAF Act has been
the subject various judgments and is settled law. In Marine & Trade Insurance Co. Ltd v
Katz NO. 1997 (4) SA 961 (A) the court was called upon to decide on the form and
contents of an undertaking in terms of Section 21 (1C)(b) of the Compulsory Motor
Insurance Act 56 of 1972 ("CMV/A") which was repealed when RAF act was promulgated.
That specific section of CMVIA provided a similar provision for the issue of an undertaking
by an insurer and was the predecessor to the provisions of Section 17(4)(a) of RAF Act.
The two sections are virtually identical, as was held in paragraph [16] of Barnard NO. v
Road Accident Fund
6:
5 See: Queen Sibongile Winnifred Zulu v Queen Buhle Mathe & Others, supra, par. [14)
6 2017 (1) SA 245 (ECP}
12
"It's wording, save for the reference to the Multilateral Motor Vehicle Accident Fund (the
predecessor to the current fund) is identical to Section 17(4)(a) prior to the amendments
referred to below."
[14] In the Katz decision supra the court (coram Trollip JA) held that such an undertaking must
follow the wording of the empowering act. The interpretation of Section 21(1)(c) by Trollip
JA in the Marine & Trade Insurance Company Ltd v Katz NO decision supra was applied by
courts in various divisions of the High Court to the interpretation of Section 17(4)(a) of the
RAF Act7, specifically in relation to the issues raised in this application by Respondents.
[15] In my view it is important to note that Trollip JA, in Marine & Trade Insurance Company v
Katz NO, inter alia provided the following reasoning why undertakings should follow the
wording of the empowering act and not contain any qualifications, conditions or caveats
namely:
[15.1] There are no words in the empowering section that endow a trial court with a
discretionary power (to include qualifications);8
[15.2] The trial court does not have a discretion as to the form or contents of the
undertaking that it orders the insurance to provide the insurer to provide.9 Any
elaboration of the kind of hospital accommodation, treatment, services or goods
covered by the categories which Respondents intend to insert in the undertaking
could well give rise to lengthy and expensive disputes between parties at the trial
which will necessitate speculation or guess work by the trial court. The purpose of
7 See: Marois v Road Accident Fund 2025 JDR 3526 (WCC) paras. {38}- (39]; Matheme/o v Road Accident
Fund {2023] JOL60956 (GP) at para. {22}.
8 See: Marine & Trade Insurance Company Ltd v Katz NO (supra), p. 971, para. [e] to [fJ
9 See: Marine & Trade Insurance Company ltd v Katz NO (supra), p. 971, par. [h]
13
the relevant section is to avoid such speculation or guess work as far as possible
by means of a simple and straightforward undertaking. 10
[16] In Mathemelo v Road Accident Fund11 it was held as follows:
"[21] Before a full court of this division, the defendant placed on record that it
had made a blanket election to compensate the claim for future medical
expenses by way of a section 17(4)(a) undertaking in terms of the Road
Accident Fund Act 57 of 1996.
[22] As for the wording or content of this undertaking it must follow the wording
of the act. The SCA in Katz held that:
Without such consent, the trial court cannot direct that the
undertaking should specify or detail any particular kind of a
hospital accommodation, treatment, services, or goods covered
by those categories. Any elaboration of that kind could well give
rise to the lengthy and expensive disputes between the parties at
the trial, and, in any event, may still necessitate speculation or
guess work by the trial court about what hospitalisation, treatment,
etc. will become necessary in the future'.
[23] The defendant must provide the plaintiff with a section 17(4)(a)
undertaking which adopts the wording of section 17(4)(a). This order is in
line with the declaratory order issued by Judge van der Westhuizen J. to
the following effect; 'it is declared that respondent, when invoking Section
17(4)(a) of the Road Accident Fund, no. 57 of 1996 as amended, and
10See: Marine & Trade Insurance Company Ltd v Katz NO (supra), p. 972, para. [d] to [e]
11 Math emelo v Road Accident Fund supra, at para. {21] to {23]
14
electing to compensate a road accident dictum with an undertaking, that
such undertaking should adopt the wording of Section 17(4)(a) and must
be free from any limitations, caveats, restrictions and specifications '."
[17) The reference in the Mathemela judgment as quoted supra where the learned Judge refers
to the judgment of van der Westhuizen J. is a reference to Muller obo Human & two others
v Road Accident Fund (Case no. 066777/23), Gauteng Division, Pretoria, where Van der
Westhuizen J. declared that an undertaking in terms of Section 17(4)(a) must be free from
limitations, caveats, restrictions and specifications. In heads of argument filed on behalf of
Respondents it was submitted that the judgment of Van der Westhuizen J. (supra) is the
subject of a rescission application. That, of course, is irrelevant.
[18) From any reasonable reading of the various judgments referred to supra it is clear that the
subject matter of the order sought by Respondents had been definitively determined, not
only by this court, Coram Van der Westhuizen J. in the matter referred to supra, but by
other courts in other divisions, guided by the principles established by Trollip JA. In the
Marine & Trade Insurance Company Ltd v Katz NO judgment.
[19) The declarator sought in paragraph 1 of the Notice of Motion in the counter-application is
therefore legally untenable. The declarator sought in paragraph 2 of the Notice of Motion
in the counter-application simply seek to declare a legal interpretation which is common
cause, not contentious, and clearly not ever challenged by any of the parties and will
provide no further clarity or any advantage to any party.
[20) The reasons advanced by Respondents for approaching this court for the declaratory
orders are summarised in paragraph [7] supra. During argument Respondent's counsel,
on direct questioning from this court, confirmed that the declaratory orders are required to
15
facilitate and expedite the First Respondent's process of administering claims. Section
21 (1 )(c) of the Superior Courts Act provides a discretion to a court to grant a declaratory
order when there is a real dispute on an existing, future or contingent right or obligation
and in my view is not intended to be used as a means to grant orders which will provide
some measure of convenience or facilitate the administration of court orders which any
party is obliged to comply with in terms of a clear statutory provision which have been
interpreted definitively by courts, the judgments of which binds this court.
[21) During argument Responqents' counsel handed up a draft order which, according to
counsel, is intended to convey that Respondents do not seek a declaratory order contra
the provisions of the limitation of damages in terms of section 17(1) of RAF Act, but
serves to confirm that the insertion of the caveat as sought in paragraph 1 of the Notice of
Motion in the counter-application is purely to assist in identifying the nature of injuries
and envisaged future medical care of a claimant for the purposes as set out in paragraph
[7] supra. This draft order reads verbatim similar to the contents of paragraph 1 of the
Notice of Motion in the counter-application, with the exception that an additional
qualification (quoted hereunder in italics) is inserted at the end of the proposed order, so
that the proposed order reads thus:
"1. It is declared that the RAF is entitled to issue undertakings in compliance with its
statutory obligations provided for in Section 17(4)(a) of the ARF Act 56 of 1996,
that specify the injuries and envisaged treatment covered by the relevant
undertakings ("injury specific undertakings"), without in any manner limiting the
RAF's liability and/or obligations in terms of Section 17(4)(a) of the RAF Act 56
of 1996."
16
[22] In my view, the insertion of that portion of the draft order quoted above in italics is nothing
more that a mere re-statement of the proper interpretation of the present trite legal
interpretation of section 17(4)(a) read in conjunction with section 17(1) of RAF Act as
appears from the various authorities referred to supra. In my view the reference to "injury
specific undertakings" together with the added caveat as quoted in italics as it appears in
the proposed order places the proposed draft order squarely into the category of orders
which are referred to in paragraph [20] supra, namely a declaratory order which is not
intended to achieve the purpose provided for in terms of section 21 (1 )(c) of the Superior
Courts Act, but an order required for convenience of the Respondent's administration.
CONCLUSION
[23] Considering the aforesaid, I am therefore of the view that I cannot exercise a discretion in
COSTS :
favour of Respondents and grant the declaratory orders as prayed for, and/or as
proposed in the draft order handed up by Respondents' counsel. The counter application
therefore stands to be dismissed.
[24] At the hearing of the matter all Applicants sought a punitive order for costs against the
Respondents. I am of the view that the Applicants are entitled to costs on a punitive scale
for the following reasons:
[24.1] The authorities referred to supra clearly disposed of the legal principles which
informs the issues in this application, most of which were readily available to
17
Respondents at the time when this counter application was launched; It thus
raises questions about the underlying motives for this application.
(24.2) The issues raised in this counter-application were not raised at the first instance
when the Respondents' right to tender an undertaking arose, nor was it raised at
the time when Respondents were obliged to comply with the respective court
orders in favour of the Applicants to furnish an undertaking. The concise history of
litigation which I have referred to above is the proverbial tip of the ice-berg. A
reading of the various affidavits of Applicants demonstrate that numerous
interlocutory applications, all eventually unopposed, had to be launched
repetitively by the Applicants against First Respondent in order to achieve the
most basic level of compliance with procedural prescripts, such as the attendance
of a pre-trial conference or the filing of discovery affidavits.
(24.3) From the history of the litigation in this matter it is, in my view, clear that this
counter-application was launched as a proverbial knee-jerk reaction after an
application was launched for the committal of the Second Respondent for
contempt of the various orders of court. If the Respondents held the bona tide
view that First Respondent was entitled, on a proper interpretation of the
underlying legal principles and authorities, to provide the Applicants with
undertakings in the form advocated by the Respondents, they could have opposed
the matters at the first instance when orders were granted against First
Respondent to furnish an undertaking and could have made representations to
those courts. If unsatisfied with any adverse finding, they could have escalated
the issue to higher courts on appeal. Instead, it was only after the Applicants had
to incur substantial legal costs and after numerous procedural delays which can
18
only be described as a frustration of the Applicants rights under section 34 of the
Constitution, culminating in an application for the contempt of the Respondents
being launched, that the Respondents' ill-founded entitlement to the declaratory
order was raised by way of a counter-application;
[24.3) In my view, the inference of ma/a tides is inescapable.
In the premises, I make the following order:
1. The Respondents' counter-application is dismissed;
2. Respondents are ordered, jointly and severally, the one paying the other to be
absolved, to pay the Applicants' costs on the scale as between attorney and client,
taxed on Scale C, including costs of two counsel where so employed.
APPEARANCES
FOR THE FIRST APPLICANT:
INSTRUCTED BY:
FOR THE SECOND APPLICANT:
-----== PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
ADV. BP GEACH SC
ADV. F. DEW KEET
VAN DYK STEENKAMP INC.
ADV. FHH KEHRHAHN
ADV. S CLIFF
INSTRUCTED BY:
FOR THE THIRD APPLICANT:
INSTRUCTED BY:
FOR THE FOURTH APPLICANT:
19
ROETS & VAN RENSBURG INC.
ADV. M SNYMAN SC
ADV. MARTIN VAN RYNEVELD
ROETS & VAN RENSBURG INC.
ADV. M $NYMAN SC
ADV. LIZE LOUW
INSTRUCTED BY: ROETS & VAN RENSBURG INC.
FOR THE FIFTH APPLICANT~ ADV. P VAN DER SCHYFF
INSTRUCTED BY: SLABBERT & SLABBERT ATTORNEYS
FOR THE FIRST AND SECOND RESPONDENTS: ADV. JG CILLIERS SC
ADV. MT SHEPHERD
INSTRUCTED BY:
MPOYANA & LEDWABA