The Road Accident Fund (RAF) in this matter had been issued with writs of execution for non – payment of 62 judgments and it has in response launched an urgent stay of the execution of these writs on the basis that there is a pending application to the Constitutional Court for leave to appeal the setting aside of a directive issued by the Fund, refusing to pay medical expenses to plaintiff’s whose expenses have been covered by their medical aid schemes.

The RAF’s argument was that the plaintiff’s have experienced advantageous consequences and have not suffered a patrimonial loss if such expenses are paid by medical aid schemes. It is however set in our law that the law prevents the wrongdoer from benefitting from the plaintiff’s own prudence in insuring themselves from an unforeseen circumstance, and the RAF has been statutorily placed in the shoes of the wrongdoer.

It is also standing law that the participation of a plaintiff in a medical aid scheme is irrelevant to the obligations of the RAF, as the law stands the RAF is obliged to compensate the plaintiff’s for past medical expenses incurred as a result of a motor vehicle accident even where they have been paid by a medical aid scheme.

In reaching the decision that the RAF has not satisfied the requirements of an interim interdict, the reasoning of Davis J is set out as follows:

1. There is no ongoing dispute between the RAF and any of the plaintiffs, and no recission applications have been brought by the RAF;
2. The RAF is refusing to comply with validly obtained and existing court orders, which is prohibited by Section 165(5) of the Constitution;
3. The orders were all granted in terms of Rule 34A;
4. The RAF’s apprehension to comply with the court orders on the basis that it may be successful in the Constitutional Court bid is illusory as the medical aid schemes would be in a position to repay whatever monies have been paid to them and alternatively, the RAF would be able to off – set such prospective payments against the balances of the plaintiff’s claims;
5. The RAF had already been in contempt by their conscious decision to default on making payment on the court orders, prior to the directive they issued.

The appeal was accordingly dismissed and the claim for a stay of execution of the writs was refused.

Full citation: Road Accident Fund v Sheriff of the High Court For the District of Centurion East and Others (083710/2023) [2023] ZAGPPHC 1122 (11 October 2023) 

Full case available at: https://lawlibrary.org.za/akn/zagp/judgment/zagpphc/2023/1122/eng@2023-10-11

1. The plaintiff instituted a claim on behalf of her son who was a minor and had sustained serious injuries due to a motor vehicle collision. The dispute in question revolved around the determination of quantum of damages viz. the minor’s claim in terms of earnings / earning capacity.

   Evidence was led by an Industrial Psychologist (Mr Moodie) who stipulated that during consultation with the Plaintiff, he expressed a wish that before the accident he had the desire to become an artisan similar to that of his late father.

   Mr Moodie further testified that the plaintiff would in all probability have completed Grade 12 at his former technical high school and would have further completed a Grade 12 education on par with that of an N3 qualification.

   The court was satisfied that the Plaintiff had discharged his onus by presenting reliable evidence of an expert nature in proving his loss of earnings/ earning capacity. The court ordered that the Defendant pay the Plaintiff a sum of R 6 485 875,00

   The Full case can be read here:

   http://www.saflii.org.za/za/cases/ZAGPPHC/2018/674.html

1. The accident happened on 22 March 2012 however the claim was lodged with the Road accident fund (RAF) on 23 March 2015.It was on this basis that the RAF raised a special plea – stipulating that the final date for lodgement was 21 March 2015 and as a result the claim had prescribed.

   The court had to deal with the following issue: whether the claim in question had in fact prescribed. In terms of the RAF Act, a claim would prescribe if it is not lodged within 3 years from the day on which the claim arouse. Lodgement may be instituted via registered post or hand delivery.

   In this matter, 21 March 2015 fell on a Saturday therefore lodgment via post was possible on the same day before the post office closed.

   In terms of case law involving a 5 year period for prescription, it was held that in cases where the 5 years had concluded on a day on which the court was closed thus

   preventing the issuing and serving of summons, the 5-year period ought to conclude on the next working day.

   The court held that the same principle should be adopted in this case as it would be in line with the object and purport of the Bill of Rights, as a result the final date for lodgement was in fact 23 March 2015, this being the day the claim was lodged and had therefore not prescribed.

   The full case can be found here:

   http://www.saflii.org/za/cases/ZAGPPHC/2018/634.html

1. The deceased was a married man who was involved in a motor vehicle collision and thereafter succumbed to his injuries.

    

   The deceased was in a relationship with the claimant for several years and had proposed to the claimant, a date to solemnize their union was decided upon by the deceased and the claimant, however this was subject to the finalization of the deceased’s divorce from his wife.

   While the deceased was married he had moved into the claimant’s home and lived with her and her minor children.

   The claimant together with her children received continued financial support which was provided by the deceased, the claimant was unemployed and entirely dependant on the deceased throughout their relationship.

   In deciding upon the matter, the court took into consideration the duo’s plans to marry together with the fact that the claimant and her minor children were voluntarily supported by the deceased throughout his existence. The court further made reference to the equality clause in the Constitution of the Republic of South Africa, viz. discrimination on account of marital status is expressly prohibited. The court therefore upheld that the claimant was eligible for a claim of loss of support.

   The full case can be read here : http://www.saflii.org/za/cases/ZAGPPHC/2018/830.html

1. In the case of Yende SJ v Road Accident Fund. The Plaintiff sues the RAF for personal injuries sustained in a motor vehicle accident. At a zoom teleconference Counsel for the Plaintiff appeared, advising the court that a notice of set down was duly served on the Defendants attorneys and therefore they knew of the trial date.

Counsel for the Plaintiff then argued that the matter should proceed in default of the RAF’S appearance. He further argued that the court can make a decision by reference to the papers only. He asked the court to consider the fact that the RAF did not seek a postponement, they simply failed to appear or make representation at all.

The Plaintiff sustained avulsion fractures of the C6, C7 and T1 spinous processes.

The Court considered the expert reports of the Orthopaedic Surgeon, Occupational Therapist, Industrial Psychologist and Actuary who were instructed by both the Plaintiff and the Defendant.

After consideration the court ordered that the RAF is to compensate the Plaintiff an amount of R1 159 994.90 in respect of future and past loss of earnings.

The full article can be read here: http://www.saflii.org.za/za/cases/ZAGPPHC/2020/384.html

The full case can be read here: http://www.saflii.org/za/cases/ZAGPJHC/2020/58.pdf

Tuchten J explains that in most cases where curators are appointed for children, they are advocates. The orders that appoint these curators usually entail that the RAF will pay their fees in the event that the claim against the RAF is successful.

The issue at hand comes in where Tuchten J explains that what concerns him is that these curator appointments “create an additional tier of paid professionals retained to represent or project the interests of the child plaintiff.” The fact that it creates another tier of paid professionals especially becomes relevant when, as is stated in the judgment, the work done by a curator is not of such a nature that the attorney or attorneys representing the child could not have done the work themselves.

This meant that appointing a curator such as an advocate is not always necessary and in many instances does no more than shift work from an attorney to a curator and create more expenses. The court here analysed section 32 of the Children’s Act which relates to the care of children by people who do not hold parental rights and responsibilities towards that child.

The court here held, in summary, that “an adult caregiver who is a family member in relation to a child is competent to assist the child in its action against the fund”. The court also held that the “fact that the child’s caregiver is a family member other than a biological parent is no ground on its own for the appointment of a curator, nor is the fact that the care-giver is poor or ill-educated”.

This in essence means that, although a curator ad litem will be appointed where the best interests of the child so require, if the child has an adult care-giver who is a family member of the child, such person is competent to assist and if there is no conflict that arises, there generally is no reason why a curator should be required.

In the case of Gabuza v Road Accident Fund, the Plaintiff was a passenger and both the motor vehicles that were involved in the accident were identified. The accident occurred on the 22 March 2012 and the claim was lodged on the 23 March 2015. The Road Accident Fund raised a special plea stating that the last date for lodgement was the 21 March 2015, hence the claim has prescribed.

The issue before the court was whether the claim has prescribed. The Road Accident Fund Act provides that a claim prescribes unless lodged within three years of the day which the claim arises and lodgement may be by hand-delivery or registered post and the three year period is calculated by subtracting a day from the date on which the claim arises, and adding three years to the year.

In this case the 21 March 2015, was a Saturday and it would have been possible to send my post and so lodge the claim, before the post office closed at 13h00. Therefore, it appears that the claim has prescribed on the Saturday.

However, it has been found in recent case law involving the five-year period of prescription of claim, it was found that where the five years ended on a day on which court was closed, so precluding the issue and service of summons, the five years should end on the next working day. The question was whether that principle would apply here. Namely, that when the statute prescribed a time and the act could only be performed if a certain office was open. Here the office was open in the first part of the day, but closed in the second when on an ordinary working day, it would be open.

It was held, that the principle should apply as this would support both the aims of the Act and the spirit, purport and objects of the Bill of Rights. Accordingly, the last day for lodgement was Monday 23 March 2015, on which the claim was indeed lodged and so it had not prescribed.

The full case can be read here: http://www.saflii.org/za/cases/ZAGPPHC/2018/634.html

The Plaintiff Ms Y Kriek instituted a claim against the Road Accident Fund for loss of support/maintenance following the death of her fiancé who was a passenger in a motor vehicle that veered off the road and collided with a tree  in Bloemfontein resulting in his death on the 28^th April 2018. At the time of the hearing the Plaintiff was not in any form of official employment, but she did from time to time refurbish furniture and household utensils in order to make a living.

The issues before the court included the deceased’s duty of support towards the plaintiff, The RAF’s obligations to pay the amount claimed or any other amount, and the quantum of the Plaintiff’s claim for loss of maintenance.

In adjudicating on the matter the court concluded that the Plaintiff and the deceased stayed together as life partners similar to a husband and wife relationship for nearly seven years and they, together with the Plaintiff’s two children from a previous relationship, operated as a family unit.

Furthermore, the parties tacitly agreed to reciprocally maintain each other and in fact did so. Even though the parties did not have an express and definite plan to marry soon, they would remain in cohabitation as life partners. The deceased accepted the duty to maintain the Plaintiff as he in fact did for seven years.

The court further concluded that as a result of the deceased’s untimely death, the Plaintiff suffered damages in the form of past and future loss of maintenance in the amount of R2 309 643.00.

The court accordingly held that the defendant was liable to make payment to the Plaintiff in the amount of R2 309 943.00 consisting of R365 370.00 in respect of past loss of maintenance and R1 944 273.00 in respect of future loss of maintenance, as a result of a motor vehicle accident that occurred on 28^th April 2018. Court further awarded cost of the action in favour of the Plaintiff.

Case citation:  Kriek v Road Accident Fund (529/2019) [2020] ZAFSHC 42 (5 March 2020)

Please read the full case on: http://www.saflii.org/za/cases/ZAFSHC/2020/42.html

This case illustrates the duty of care and diligence that needs to be upheld by all road users and shows that  “A driver who collides with the rear of a vehicle in front of him is prima facie negligent unless he or she can give an explanation indicating that he or she was not negligent”.

Facts:

The Plaintiff was a driver of a truck that collided with a bus on the 12 March 2013. The Plaintiff obtained his drivers licence in Maputo and it allows him to drive and deliver goods in the SADC countries.

The plaintiff testified that he was driving on a slope going downhill and he was not able to see what was in front of him because of the rainy conditions. The only thing he saw a red tape on the left side of the road as well as the pothole. He said the road was a two-way traffic because there were motor vehicles driving from the opposite direction.

He testified that as he was driving, he did not see other motor vehicles save for the bus that was in front of him and he also did not know what was happening in front of the bus because of its height. It was put to him that as a responsible driver, he should have exercised caution and care when he realised that it was raining. In his response, he said he exercised caution by reducing the speed to between 50-60 km/h as he was driving at 70 km/h before it started raining. He said the regulated speed limit on that road was 80 km/h. He confirmed that a responsible driver should exercise care when he realizes that it is raining. He confirmed what he said in chief, that he was driving downhill on a slippery road due to rainfall. Further that when he saw the brake lights of the bus in front of him, he also applied his brakes.

It was further put to him that the insured driver’s version is that there were warning signs on the road alerting all the motorists that there is a ‘stop and go ahead’; and that as a compliant driver, he (the insured bus driver) adhered to the warning signs by gradually applying the brakes in anticipation of the ‘Stop and Go’ ahead of him.

It is generally accepted that every road-user owes a duty of care and consideration to other road-users. That duty requires of every driver to drive like a reasonable man, who would be able to reasonably foresee the possibility of unforeseen consequences and act in accordance with such appreciation.

The onus is on the plaintiff to prove on a balance of probabilities that:

(a)   a reasonable person (diligens paterfamilias) in the position of the defendant:

(i)     would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and

(ii)    would take reasonable steps to guard against such occurrence and

(b)   The defendant failed to take such steps

Failure to act in accordance to the above is tantamount in law to negligence

The Court reiterated that, The general approach to adopt when dealing with rear-end-collision is set out by HB Kloppers in The Law of Collision in South Africa (7^th ED) page 78 as follows:

“A driver who collides with the rear of a vehicle in front of him is prima facie negligent unless he or she can give an explanation indicating that he or she was not negligent.“

Judgement:

The Court found that the Plaintiff was the sole cause of the accident and no order as to costs was made.

Read full case at: http://www.saflii.org/za/cases/ZAGPPHC/2019/462.html

In this case the learned Judge states that with past and future loss of earnings claims. The plaintiff is not required to prove the loss with mathematical precision however the Plaintiff is required to place before the court all evidence reasonably available to enable the court to qualify the damages and to make an appropriate award in his favour.

Facts:

In this matter the Plaintiff claimed damages arising from injuries sustained by the Plaintiff as passenger in a collision that occurred on 10 May 2013. She suffered a soft tissue injury, tear drop fracture of the C5 and laceration on his right wrist.

As a result of his injuries he suffered damage and is entitled to damages in the sum of R855 000.00.

The disputed issue in this matter was the determination of the extent of the Plaintiff’s past and future loss of earnings and earning capacity.

The Plaintiff at the time of the collision was employed by the National Lottery Board occupying the position of assistant company secretary. He is an LLB graduate from the University of Zululand.

During 2015, he voluntarily resigned from his position to take up a position overseeing the farm activities of his family sugarcane farm. His net salary during this period was approximately R75 029.37.

The experts further agreed that the plaintiff returned to his pre­ accident employment after recuperating. Furthermore, that the plaintiff voluntarily resigned from his position to take up employment at his family’s farm. He however has been unemployed since December 2015. Having regard to all other expert reports presented to them, they opined that the plaintiff would be able to return and continue to work in the open labour market and will be able to progress in his career path and likely earnings as anticipated in the pre­ accident scenario until retirement age 65 years.

Now in determining the plaintiff’s post and future loss of earning and earning capacity the court has to determine whether post-accident and as a result of the sequelae of the collision, he has been unable to return to his position as a Legal Administration Officer.

“In the case of Bridgman NO v Road Accident Fund 2002 (1) ALLSA 1 (CPD) the court held that in order to claim compensation for patrimonial loss a plaintiff must discharge the onus of proving on a balance of probabilities that such loss has indeed occurred. This does not necessarily mean that the plaintiff is required to prove the loss with mathematical precision however the Plaintiff is required to place before the court all evidence reasonably available to enable the court to qualify the damages and to make an appropriate award in his favour”

Pre-accident the Plaintiff was gainfully employed in the position of Legal Administration Officer. Following the collision, he was able to return to his former employment but voluntarily resigned from this position.

Judgement:

The following order was made:

1.The Plaintiff is entitled to 100% of his proven/agreed damages;

2. The Defendant shall pay the Plaintiff the total amount of R2 150 377.15 in respect of both his past and future loss of earning and earning capacity as well as his general damages.

Read full case at: http://www.saflii.org/za/cases/ZAGPPHC/2017/401.html

The reason why this case is so important is because it makes the claimant understand that the Road Accident Fund does not need to be given details with extreme precision to prove loss of earnings. As long as they are able to prove on a balance of probabilities on the evidence that they are presented with, it will be sufficient.

She suffered traumatic injury to her right knee but not a fracture. The initial injury began having an effect on her and her work performance. We were of the opinion that she should be compensated for two years loss of earnings and promotional prospects as she could have elected to work until age sixty five and the reports indicated two years early retirement.

As our client was still working the Road Accident Fund refused to pay her compensation, initially offering a mere R5000.00.  After getting a liability concession and appointing experts to prove our case and a lengthy battle with the Road Accident Fund and its Attorney the Court award, inclusive of interest was R1, 004, 944,98 together with an undertaking to cover any future medical costs.

Our client was ecstatic to receive the award for future loss of earnings and can look forward to her retirement and financial security of both her pension and the Award from the Road Accident Fund.

He suffered from, amongst others, head injuries. Mr. G approached our offices in Pretoria and we advised him to claim against the Road Accident Fund.

We assisted him with his claim and sent him to various medical experts to determine the extent of his injuries.

Eventually, shortly before trial, the RAF agreed on the quantum of Mr. G damages as being in the vicinity of
R 3.6 million rand plus all future medical costs (less apportionment due to him being partially to blame for the collision)

A claim was lodged on her behalf and an offer was received from the RAF to settle the matter for
R 250 000.00. On our advice Ms. D refused the offer and we insisted on going to trial.

Shortly after walking into the court the RAF improved their offer to almost R 2 000 000.00, almost 8 times what our client was initially offered. In addition the RAF was ordered to pay all her future medical costs relating to the accident.

At the time he was working in the finance industry. Due to his forgetfulness he was unable to perform adequately and he was let go.

We assisted Mr. M with instituting a claim against the RAF, including claims for medical costs, loss of income and pain and suffering. After negotiation Mr. M was paid R 3 800 000.00, and in addition the RAF has undertaken to pay all his future medical expenses.

We had wasted no time in submitting his claim to the Road Accident Fund.  Shortly after completing their investigation they repudiated the claim on a technical basis.  Campbell Attorneys felt the Road Accident Fund’s stance was not sustainable and proceeded to issue summons against them.  The Road Accident Fund then abandoned its original ground for repudiation and now took the stance that the collision was completely the clients fault.  Days before the matter was set down for trial to decide the Road Accident Fund’s liability, the Road Accident Fund conceded it was liable but still failed to make an offer repayment.

The matter was then set down for trial to determine the issue of quantum and again days before the trial the claim was eventually settled by the Road Accident Fund.

After deducting of the amount already paid by WCC for an amount of R700 000.00

(17 June 2014)

Then, tragically, Mr. M passed away in a motor vehicle accident one evening in 2010.

Mrs. M. was distraught.  Not only had she lost her husband – she was unemployed and now had to take care of herself and their 3 minor children alone.  Desperately seeking help she contacted the Pretoria office of Campbell Attorneys.

We immediately helped Mrs. M. to lodge a claim with the Road Accident Fund but they refused to pay.  Summons was then issued against the Road Accident Fund from the North Gauteng High Court.  Reports were obtained from expert witnesses including an actuary’s report, eventually the Road Accident Fund conceded and a settlement was agreed to in terms of which the Road Accident Fund paid R3.3 million to Mrs. M and her family.

Although Mrs. M. and her children can never be fully compensated for the loss of a father and a husband, we were able to ensure that their financial future is secure.

(23/05/2014)

In 2010 Mr F was involved in a serious motor vehicle collision and sustained various injuries which resulted in him requiring a hip replacement.

In terms of the amended Road Accident Fund Act, for a person to qualify for general damages their injury must be accepted as serious as defined. For the injury to be accepted the person must assessed to have a whole person impairment (WPI) of 30% or higher. Alternatively their injuries must be assessed as serious based on what we call a narrative test. Mr F only scored 14% WPI but his narrative test clearly indicated that his injuries should be accepted as serious. The RAF ignored his narrative test and rejected his injuries as not being serious.

We took the matter on appeal to the HPCSA appeal tribunal who found that his injuries where indeed serious. This allowed us to then proceed to court where the court awarded him R463 000 in general damages as well as ordering the RAF to provide an undertaking to cover all his medical expenses that he may incur in the future as a result of the accident.

(14/06/2013)

• Master C.G was a young child when he was struck down by a motor vehicle and suffered a head injury. The injured claimant was the middle child of three and living in a single parent home. They were in a desperate situation with their survival dependant on his mother selling trinkets on the side of the street or charity. The Road Accident Fund however refused to compensate him. Eventually the matter was settled at court for R1 400 000.00 plus an undertaking to pay for all medical expenses After receiving the payout, with our assistance, Master C.G purchased a home and has been seeing an occupational therapist. The balance of his money has been invested. From having no hope the future is now greatly improved for this little boy.

  (5 July 2012)

(19 July 2012)

(3 August 2012)

(30 August 2012)

(20 September 2012)

(22 October 2012)