Kirkhoff v Road Accident Fund - Amendment Order (5994/2015) [2023] ZAFSHC 297 (29 July 2023)
- Citation
- [2023] ZAFSHC 297
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Gusha
- Case number
- 5994/2015
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Gusha
- Case number
- 5994/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court identified a patent error in the previous order regarding the amount awarded for future loss of income. In terms of Rule 42(1)(b), the court is empowered to correct such errors mero motu. The correct amount, as supported by the evidence and actuarial calculations, is R548,700. The order is varied accordingly, and all other terms of the original order remain unchanged. The defendant is directed to pay the corrected amount and comply with the undertakings and costs orders as previously set out.
Court disposition
Order varied to correct the amount awarded for future loss of income; all other terms remain unchanged.
Orders
- The plaintiff’s claim for damages in respect of past loss of earnings is dismissed.
- The defendant shall pay to the plaintiff R350,000.00 in respect of general damages arising from the motor vehicle accident on 21 June 2013.
- The defendant shall pay to the plaintiff R548,700.00 in respect of future loss of income.
- The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of Act 56 of 1996 for payment of 100% of future accommodation, treatment, or services arising from the injuries sustained in the accident.
- The defendant shall pay the plaintiff’s taxed or agreed party and party costs, including costs of counsel and qualifying fees of listed experts.
- Payment of capital amounts shall be made within 180 calendar days from the date of this order into the trust account of the plaintiff’s attorneys.
- Payment of taxed or agreed costs shall be made within 180 days of taxation into the trust account of the plaintiff’s attorneys.
- Interest a tempore morae shall be calculated in accordance with the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996, one hundred and eighty days from the date of this order.
02
Material facts
Parties
Craig Eddie Kirkhoff
Plaintiff Counsel: Adv. Pohl SCRoad Accident Fund
Defendant Counsel: Ms. P BandaAmounts and remedies
- General Damages: ZAR 350,000
- Future Loss of Income: ZAR 548,700
03
Procedural history
Posture
Amendment Order / Order Varying Previous Judgment Under Rule 42(1)(b)
04
Questions and positions
Legal issues
- 01
Whether the previous order contained a patent error in the amount awarded for future loss of income.
- 02
Whether the court may mero motu vary the order under Rule 42(1)(b).
Party arguments
- Applicant
- The plaintiff did not formally apply for variation, but the error in the amount awarded for future loss of income was apparent from the record. The plaintiff was entitled to the correct amount as determined by the evidence and actuarial calculations.
- Respondent
- The defendant did not oppose the correction of the error, as the mistake was patent and did not affect the substance of the judgment. The defendant accepted the court's authority to vary the order mero motu under Rule 42(1)(b).
05
Court’s reasoning
Legal principles
- 01
Rule 42(1)(b) Uniform Rules of Court
A court may mero motu or on application vary an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission.
- 02
Prescribed Rate of Interest Act 55 of 1975; Road Accident Fund Act 56 of 1996
Interest a tempore morae is payable on capital amounts awarded in terms of the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996.
06
Ratio, limits and disposition
Ratio decidendi
The court identified a patent error in the previous order regarding the amount awarded for future loss of income. In terms of Rule 42(1)(b), the court is empowered to correct such errors mero motu. The correct amount, as supported by the evidence and actuarial calculations, is R548,700. The order is varied accordingly, and all other terms of the original order remain unchanged. The defendant is directed to pay the corrected amount and comply with the undertakings and costs orders as previously set out.
Obiter and limits
- The correction of the order does not affect the substantive rights of the parties, but ensures that the judgment accurately reflects the court's intention.
- The court's power to vary its own orders under Rule 42(1)(b) is limited to patent errors and does not extend to reconsideration of the merits.
Court disposition
Order varied to correct the amount awarded for future loss of income; all other terms remain unchanged.
- The plaintiff’s claim for damages in respect of past loss of earnings is dismissed.
- The defendant shall pay to the plaintiff R350,000.00 in respect of general damages arising from the motor vehicle accident on 21 June 2013.
- The defendant shall pay to the plaintiff R548,700.00 in respect of future loss of income.
- The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of Act 56 of 1996 for payment of 100% of future accommodation, treatment, or services arising from the injuries sustained in the accident.
- The defendant shall pay the plaintiff’s taxed or agreed party and party costs, including costs of counsel and qualifying fees of listed experts.
- Payment of capital amounts shall be made within 180 calendar days from the date of this order into the trust account of the plaintiff’s attorneys.
- Payment of taxed or agreed costs shall be made within 180 days of taxation into the trust account of the plaintiff’s attorneys.
- Interest a tempore morae shall be calculated in accordance with the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996, one hundred and eighty days from the date of this order.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Order
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case No. 5994/2015
In the matter between:
CRAIG
EDDIE KIRKHOFF
PLAINTIFF And
ROAD
ACCIDENT FUND
DEFENDANT
CORAM:
GUSHA, AJ
DELIVERED ON: This amendment order was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII. The date and time for the hand down are deemed to be at 12h00 on 28 July 2023.
AMENDMENT
ORDER
[1] On the 4th July 2023 I granted an order in the following terms;
In the result I make the following order;
33.1. The plaintiff’s claim for damages in respect of past loss of earnings is dismissed.
33.2. The defendant shall pay to the plaintiff;
33.2.1. R350 000.00 (Three hundred and fifty thousand rand) in respect of general damages arising from the motor vehicle accident that occurred on the 21st June 2013.
33.2.2. R 508 700 (five hundred and eight thousand rand) in respect of future
loss of income.
33.3. The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4) (a) of Act 56 of 1996 for payment of 100% of the for the future accommodation of the plaintiff in a hospital or nursing home, or treatment of or rendering of a service or supply of goods to him, arising from the injuries sustained by him in the motor vehicle collision on the 21st June 2013.
33.4. The defendant shall pay the plaintiff‘s taxed or agreed party and party costs until the date of this order including costs of counsel. Such costs shall include the following the reasonable and qualifying fees of the following experts:
33.4.1. Dr JJ Schutte - General Practitioner
33.4.2. Dr LF Oelofse – Orthopaedic surgeon
33.4.3. Drs van Dyk & Partners – Radiologists
33.4.4. Mrs M Grobler of Rita van Biljon Occupational Therapists
33.4.5. Mrs L van Zyl of Rita van Biljon Occupational Therapists
33.4.5. Dr EJ Jacobs – Industrial Psychologist
33.4.6. Munro Forensic Actuaries.
33.5. Payment of the capital amounts shall be made without set-off or deduction, within 180 (hundred and eighty) calendar days from the date of granting of this order, directly into the trust account of the plaintiff’s attorneys of record by means of electronic transfer, the details of which are the following:
Honey Attorneys - Trust Account
Bank – Nedbank, Maitland Street, Bfn
Branch Code - 11023400
Account No. – 1[…]
Reference – HL Buchner/l22884
33.6. Payment of the taxed or agreed costs shall be made within 180 (hundred and eighty) days of taxation, and shall likewise be effected
into the trust account of the plaintiff’s attorney.
33.7. Interest a tempore-morae shall be calculated in accordance with the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996, one hundred and eighty (180) days from the date of this order.
[2] Paragraph 33.2.2 of the aforesaid order contains an error in respect of the amount payable in respect of future loss of income. The correct amount awarded should reflect as R 548 700 (five hundred and forty eight thousand rand).
[3] The aforesaid variation is effected, mero motu, in accordance with Rule 42 (1) (b).[1]
[4] The varied order should therefore read as follows:
33.2.1. R350 000.00 (Three hundred and fifty thousand rand) in respect of general damages arising from the motor vehicle accident that occurred on the 21st June 2013.
33.2.2. R 548 700 (five hundred and forty eight thousand rand) in respect of future loss of income.
33.3. The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4) (a) of Act 56 of 1996 for payment of 100% of the for the future accommodation of the plaintiff in a hospital or nursing home, or treatment of or rendering of a service or supply of goods to him, arising from the injuries sustained by him in the motor vehicle
collision on the 21st June 2013.
33.4.1. Dr JJ Schutte - General Practitioner
33.4.2. Dr LF Oelofse – Orthopaedic surgeon
33.4.3. Drs van Dyk & Partners – Radiologists
33.4.4. Mrs M Grobler of Rita van Biljon Occupational Therapists
33.4.5. Mrs L van Zyl of Rita van Biljon Occupational Therapists
33.7.5. Dr EJ Jacobs – Industrial Psychologist
33.7.6. Munro Forensic Actuaries.
33.8. Payment of the capital amounts shall be made without set-off or deduction, within 180 (hundred and eighty) calendar days from the date of granting of this order, directly into the trust account of the plaintiff’s attorneys of record by means of electronic transfer, the details of which are the following:
33.9. Payment of the taxed or agreed costs shall be made within 180 (hundred and eighty) days of taxation, and shall likewise be effected
into the trust account of the plaintiff’s attorney.
33.10. Interest a tempore-morae shall be calculated in accordance with the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996, one hundred and eighty (180) days from the date of this order.
NG GUSHA, AJ
On behalf of the plaintiff Adv. Pohl SC Instructed by: Honey Attorneys
BLOEMFONTEIN On behalf of the respondent Ms. P Banda Instructed by: State Attorney
BLOEMFONTEIN
[1] 42. Variation and rescission of orders (1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary— (b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
[1] 42. Variation and rescission of orders
(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary—
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
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