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[2023] ZAGPJHC 112
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Alexander v Road Accident Fund and Three Other Related Matters (2021/53043; 2021/26274; 2020/15348; 2022/5105) [2023] ZAGPJHC 112 (11 February 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case no: 2021/53043
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: YES
(3) REVISED.
Date: 11 February 2023
In
the matter between:
ALEXANDER,
GALE BELINDA
Applicant
and
THE
ROAD ACCIDENT FUND
Respondent
Case no: 2021/26274
In
the matter between:
MORRIS,
CHARMAINE PATRICHIA
Applicant
and
THE
ROAD ACCIDENT FUND
Respondent
Case no: 2020/15348
In
the matter between:
HARRIPERSHAD,
NISHMA PREMDAW
Applicant
and
THE
ROAD ACCIDENT FUND
Respondent
Case no: 2022/5105
In
the matter between:
MABOYA
,
SEETA ELIZABETH
Applicant
and
THE
ROAD ACCIDENT FUND
Respondent
JUDGMENT
This judgment is
handed down electronically by circulation to the parties’ legal
representatives by e-mail and by uploading
the signed copy to
Caselines.
Motor vehicle accident —
Compensation — Claim against Road Accident Fund —
Application for interim payment under
rule 34A for medical costs
already incurred — Written admission of liability for damages
in rule 34A(4)(a) —
Written admission that accident
caused by sole or contributory negligence of insured driver
insufficient to satisfy court that
Fund has admitted liability —
Terminology: Potential confusion arising from statement that
defendant has conceded ‘the
merits’ (which may only
dispose of issue of fault), as opposed to concession of ‘liability’
(which disposes of
all issues other than the quantum of damages) —
Uniform Rules of Court, rule 34A;
Road Accident Fund Act, 56 of 1996
,
s 17(6).
MOULTRIE AJ
[1]
These four
matters all served before me in the unopposed motion court on 25
January 2023.
[1]
Having
identified significant commonalities in the facts and the legal
question that arises for determination, and in view of the
fact that
all of the applicants are represented by the same attorneys, I
ordered that they be heard together. Mr Mudau appears
in the first
matter and Mr Molojoa appears in the other three. I am grateful to
both counsel for their submissions.
[2]  The applicants
are all plaintiffs in actions instituted against the Road Accident
Fund in which they seek to recover compensation
in terms of
section
17(1)
of the
Road Accident Fund Act, 56 of 1996
for loss or damage
suffered as a result of bodily injuries caused by or arising out of
the driving of a motor vehicle. Each of
them seeks an order for an
interim payment under
Rule 34A(4)(a).
This rule provides that a court
may grant an order requiring the defendant in an action for damages
for personal injuries to make
an interim payment in respect of
medical costs and loss of income arising from the plaintiff’s
physical disability if it
satisfied that the defendant “
has
in writing admitted liability for the plaintiff’s damages
”.
The Fund has not opposed any of the applications.
[3]
In view of
the proviso contained in
section 17(6)
of the Act,
[2]
the Fund may only be ordered to make an interim payment in respect of
medical costs that have already been incurred under
Rule 34A.
[3]
The applications are all appropriately limited to such costs. In the
absence of opposition, I also have no reason to doubt that
the
incurrence of the medical costs has been adequately proved in the
founding affidavits,
[4]
and that
the amounts claimed will not exceed a reasonable proportion of the
damages which are likely to be recovered by the plaintiffs
(assuming
the Fund is found to have admitted liability) taking into account any
contributory negligence, set off or counterclaim.
[5]
In addition, I accept that the Fund has the means at its disposal to
enable it to make the claimed payments.
[6]
[4]  My sole
difficulty with the relief sought arises from the documents upon
which the applicants rely as constituting the
Fund’s written
admissions of liability.
[5]  In the
Alexander and Maboya matters, the documents in question are duly
accepted “without prejudice” offers
from the Fund that
read in relevant part as follows:
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 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
.
[6]
Although an
identical offer is relied upon in the Harripershad matter (annexure
“LL2” to the plaintiff’s founding
affidavit), it
does not purport to bear a signature of acceptance. However,
paragraph 5 of the founding affidavit states that the
offer was
indeed accepted by the plaintiff, and I have no reason to doubt the
correctness of this allegation.
[7]
[7]  The document
relied upon in the Morris matter is also almost identical, save for
the fact that the Fund only admitted
contributory negligence of its
insured driver in the proportion of 50%. Nothing turns on this.
[8]
I was
assured by both counsel that it is widely considered by practitioners
– and indeed the Fund itself – that these
documents (I
was advised that they are ‘standard forms’) constitute
sufficient written admission of liability on the
part of the Fund for
the purposes of
Rule 34A.
For the reasons set out below, I
respectfully disagree. Although counsel further assured me that
courts routinely grant applications
for interim payments based on
identical documents, I was not referred to or furnished with any
judgment in which this was the case,
and I have been unable to locate
any.
[8]
[9]
In my view,
the documents in question are not sufficient to satisfy a court that
the Fund “
has
in writing admitted liability for the plaintiff’s damages
”.
This has been referred to as a “
jurisdictional
requirement
”
that has to be present before the rule may be applied.
[9]
To the contrary, as the portions that I have underlined in the
extract quoted above expressly state, the Fund has only admitted
“
the
issue of negligence … as to the manner in which the collision
occurred
”
and that the “
collision
resulted from the … negligence of the insured driver
”,
who was “
negligent
in causing the … collision
”.
[10]
Proof or
admission of negligence is but one of the elements of a plaintiff’s
cause of action against the Fund for compensation
under the Act: a
plaintiff who seeks to recover compensation “
must
establish the normal delictual elements
”.
[10]
[11]
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 law 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 (ii) that any such bodily injury arose from the
negligently-caused collision.
[11]
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).
[12] As Fisher J observed
in
MS v Road Accident Fund
:
…
once negligence
of the third party driver is proved, wrongfulness is generally
assumed. It must then be shown that the loss suffered
by the claimant
is due to the negligent/wrongful act in issue.
This
is when the causation phase of the enquiry begins
.
[12]
[13] It is apparent from
my engagement with counsel that there is much confusion around
terminology. According to counsel, the documents
under consideration
in the current matters constitute an admission of (and indeed finally
resolve) the question of ‘the merits’
of the actions
against the Fund. It must, however, be emphasised that the term ‘the
merits’ as employed in this context
has an attenuated meaning
that, at most, refers to the question of whether the accident was
caused by the sole or contributory
negligence of the defendant’s
insured driver. While a concession of ‘the merits’ in
this sense will undoubtedly
have the result of significantly reducing
the scope of the issues to be determined at trial, it must be
emphasised that such a
concession does not mean that the Fund has
conceded or “
admitted liability for the plaintiff’s
damages
” for the purposes of
Rule 34A(4)(a).
[14]
This was
made abundantly clear by Fisher J in
MS
v RAF
.
Although the court labelled the enquiry into whether the collision
was caused by the insured driver’s sole or contributory

negligence as “
the
Merits Enquiry
”,
[13]
it emphasised that:
A concession by the RAF
as to (the “Merits”) cannot, unless otherwise
specifically agreed, denote anything more than
that the RAF admits
that the negligence of the insured driver caused the accident. Thus,
such concession or a determination of
the Merits in favour of the
plaintiff is no more than a finding that the insured driver was
negligent and, given that the claim
is for personal injury under the
Act, of the assumed wrongfulness element as well.
[14]
[15] In
Mnisi
(which did not involve
Rule 34A)
, the court considered an identically
worded document and observed that there had been no settlement of
‘the merits’
in the sense of the question of liability.
It found that apart from negligence …
…
all the other
elements of the RAF cause of action remains to be proven by the
plaintiffs. This includes: (a) the loss resulted from
bodily injury
to the plaintiff or, in the case of a dependant claiming loss of
support subsequent to the death of a breadwinner,
such loss; (b) the
loss arose from the driving of a motor vehicle; and that (c) the
injury was due to negligence or other wrongful
act. It should also be
immediately apparent that the causal link between the negligent act
of the insured driver which was the
sole or contributory cause of the
collision, the injuries that were sustained by the victim and the
pecuniary or non-pecuniary
loss suffered as a result of the collision
must be proven.
[15]
[16]
For these
reasons, while I agree with the court in
Apleni
v Minister of Police
[16]
that
Rule 34A(4)(a)
does not require the quantum of damages to have
been admitted by the defendant, I do not think that the statement in
the judgment
that “
an
admission of merits is what is intended by the requirement of an
admission of liability for damages
”
[17]
supports the applicants’ contention in these matters that the
rule allows a court to award an interim payment merely upon
admission
by the defendant of one element of liability. To the extent that the
court may have found otherwise, I respectfully disagree.
The meaning
of ‘the merits’ when that term is intended to be
equivalent to ‘liability’ was explained in
Tolstrup
as follows:
An agreement or finding
on liability (which is the equivalent of the merits) clearly disposes
of everything bar the quantum of damages,
and hence the willingness
to afford the plaintiff interim payments. Quantum would not include a
consideration of defences on the
merits, be they defences raised by
way of special plea, such as lack of jurisdiction, non locus standi,
prescription or the like,
or substantive defences such as absence of
negligence, mistaken identity, contributory negligence and so on, all
of which relate
to whether damages are payable. Once that is out of
the way, the parties can concern themselves with how much is
payable.
[18]
[17] I therefore conclude
that the documents relied upon by the applicants in the current cases
do not evidence an admission of
liability by the Fund as required by
Rule 34(4)(a)
, and that the applications all fall to be dismissed. In
the absence of any opposition, there should be no orders as to costs.
[18]
In closing,
I consider it appropriate to observe that my understanding of
counsels’ submissions was that (despite Fisher J’s

deprecation of the practice in
MS
v RAF
)
[19]
it is not an uncommon occurrence for the term ‘the merits’
in the attenuated sense described above (i.e. limited to
the question
of the negligence of the insured driver) to be employed in
contradistinction to ‘the quantum’, when the
parties’
legal representatives record (solely on the basis of documents such
as those considered in the current applications)
in a pre-trial
minute that ‘the merits’ of a claim have been ‘agreed’
or ‘settled’; or when
they advise the court during
pre-trial procedures on the basis of such documents that the only
outstanding issue for determination
is ‘the quantum’. For
the reasons set out above, this is a misdirection. In view of what
appear to me to be a number
of inappropriate but prevalent practices
referred to in this judgment, I will be requesting that it be brought
to the attention
of the Chief Executive Officer of the Road Accident
Fund.
[19] I make the following
order in relation to the application for an interim payment in terms
of
Rule 34A
in each of the above matters:
(a) The application is
dismissed.
(b) There is no order as
to costs.
RJ Moultrie AJ
Acting Judge of the High
Court
Gauteng Division,
Johannesburg
DATE
HEARD: 25 January 2023
JUDGMENT
DELIVERED: 11 February 2023
APPEARANCES
Counsel
for the applicant in case number 2021/53043:
RV
Mudau instructed by A Wolmarans Inc.
Counsel
for the applicant in case numbers 2021/36274; 2020/15348 and
2022/5105:
BD
Molojoa instructed by A Wolmarans Inc.
[1]
This was prior to the Deputy Judge President’s
clarification on 2 February 2023 that applications for interim

payments under
Rule 34A(4)(b)
should not be enrolled on the
unopposed motion court roll, but on the general civil roll. It would
seem to me that there is no
difference in principle between such
applications and applications such as the current ones under
Rule
34A(4)(a)
and that such applications should in future also be
enrolled on the civil trial roll.
[2]
Section 17(6)
provides that: “
[t]he
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 subsection (1) to the third party in respect of medical costs, …
loss of income and loss of support:
Provided that the Fund or such
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 such losses have
already been suffered.
”
[3]
Road
Accident Fund v Manqina
2020 (5) SA 202
(ECB) paras 17 – 22. I do not read this
judgment as entirely excluding the operation of
Rule 34A
in relation
to the Fund. It seems to me that it merely narrows the scope of the
Rule insofar as it may be applied to the Fund,
as was the position
in relation to the similar previous provision that
section 17(6)
replaced: see
Fair
v SA Eagle Insurance Co Ltd
1995 (4) SA 96
(E) at 100E–G.
[4]
Rule 34A(2).
[5]
Rule 34A(4).
[6]
Rule 34A(5).
[7]
I should note further that I consider the document annexed as
annexure LL3 to be irrelevant. As Mr Molojoa conceded at
the
hearing, while this document evidently constituted a signed written
offer by the RAF “
in
full and final settlement
”
of the plaintiff’s claim, it was not accepted on behalf of the
plaintiff, who unilaterally amended and signed the
document, and the
amendments were not accepted by the RAF. In any event, on the
plaintiff’s own version, annexure LL3 relates
to another
amount not claimed by the plaintiff in this application.
Furthermore, if there is any doubt in this regard, the document

(even assuming that it was agreed to in its amended form) expressly
states that it would be an agreement to pay “
without
… admission of liability
”
and, as such, suffers from the same deficiency discussed below.
[8]
Although the applicant in
Kaufmann
v The Road Accident Fund
2019 JDR 2018 (GJ) attempted to rely on a similarly worded document,
it is apparent from paragraph 18 of the judgment that the
court was
doubtful as to whether the document was adequate, and that it was
only prepared to award the interim payment in view
of the fact that
the Fund itself had disclosed that it had made a written offer in
relation to past medical and hospital expenses,
and it was not
suggested that this offer had been made without admission of
liability, as is the case in the Harripershad matter
referred to in
footnote 7 (above).
[9]
J
v MEC Health, Western Cape
[2017] ZAWCHC 75
para 24. In this case, following an extensive
discussion of the court’s discretion under the rule, Henney J
held that there
is no scope for a court to award an interim payment
unless one of the requirements set out in either
Rule 34(4)(a)
or
(b) has been met.
[10]
Law
Society of South Africa and Others v Minister for Transport and
Another
2011
(1) SA 400
(CC) para 25.
[11]
In
MS v
Road Accident Fund
[2019] 3 All SA 626
(GJ) para 12, Fisher J refers to this as the
“
First
Causation Enquiry
”.
[12]
MS v
Road Accident Fund
(above) para 9.
[13]
MS v
Road Accident Fund
(above)
para 12.
[14]
MS v
RAF
(above) para 13.
[15]
Mnisi
v RAF
and other related matters
[2022] JOL 53515
(MM) paras 27 – 28 and 32 – 33.
[16]
Apleni
v Minister of Police and a related matter
[2021]
JOL 56020
(WCC) para 11.
[17]
This is also the sense in which the term was employed in
Karpakis
v Mutual & Federal Insurance Co Ltd
1991 (3) SA 489
(O) at 497E–G and 498D.
[18]
Tolstrup
NO v Kwapa NO
2002 (5) SA 73
(W) at 77F–G. In
Road
Accident Fund v Krawa
2012 (2) SA 346
(ECG) at paras 28 to 33, the court held on the facts
that the Fund’s concession of “
the
merits
”
was not limited merely to a concession that the insured driver was
negligent and that as such the case was distinguishable
from
Tolstrup
.
In my view, the current applications are not similarly
distinguishable from that case.
[19]
MS v
RAF
(above) para 2.