Knoetze obo Malinga and Another v Road Accident Fund (77573/2018 & 54997/2020) [2022] ZAGPPHC 819 (2 November 2022)

Knoetze obo Malinga and Another v Road Accident Fund (77573/2018 & 54997/2020) [2022] ZAGPPHC 819 (2 November 2022)

The court held that it is not competent for a court to direct the Road Accident Fund to furnish an undertaking for future medical expenses under section 17(4)(a) of the RAF Act unless the Fund has elected to do so, either by choice or by default. The right to furnish an undertaking is a statutory entitlement of the...

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Citation
[2022] ZAGPPHC 819
Parties
Plaintiff: Advocate Knoetze obo N.B Malinga; Plaintiff: Evert Johannes Pretrus de Goede; Defendant: Road Accident Fund; Applicant: Pretoria Attorneys Association; Applicant: Marius Coetzee; Applicant: Brits Beukes Inc; Applicant: Frans Schutte & Mathews Phosa Inc; Applicant: Black Lawyers Association; Applicant: Sizakele Florence Gumede
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 November 2022
Case Number
77573/2018 & 54997/2020
Procedural Posture
Civil Application / Full Court Determination of Questions Referred by Acting Judge President Under Section 14(1)(a) of the Superior Courts Act
Outcome
Both referred questions answered in the negative. Costs awarded against the Road Accident Fund.
Judges
N Davis, E van der Schyff, M Munzhelele
Legal Topics
Road Accident Fund Act, Future Medical Expenses, Serious Injury Assessment, Default Judgment, Undertaking Election, Administrative Action
Civil Procedure Delict Road Accident Fund Act Future Medical Expenses Serious Injury Assessment Default Judgment Undertaking Election Administrative Action

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Parties

Advocate Knoetze obo N.B Malinga

Plaintiff

Evert Johannes Pretrus de Goede

Plaintiff

Road Accident Fund

Defendant

Pretoria Attorneys Association

Applicant

Marius Coetzee

Applicant

Brits Beukes Inc

Applicant

Frans Schutte & Mathews Phosa Inc

Applicant

Black Lawyers Association

Applicant

Sizakele Florence Gumede

Applicant

Procedural Posture

Civil Application / Full Court Determination of Questions Referred by Acting Judge President Under Section 14(1)(a) of the Superior Courts Act

Legal Issues

  1. 1 Is it competent for a court to order the Road Accident Fund to furnish an undertaking for future medical expenses under section 17(4)(a) of the RAF Act where default judgment is granted and the Fund has not elected to furnish such an undertaking?
  2. 2 Is a plaintiff entitled to pursue adjudication of general damages at trial or in default court in the absence of the Fund accepting the injuries as serious or assessment by the appeal tribunal under Regulation 3?

Ratio Decidendi

The court held that it is not competent for a court to direct the Road Accident Fund to furnish an undertaking for future medical expenses under section 17(4)(a) of the RAF Act unless the Fund has elected to do so, either by choice or by default. The right to furnish an undertaking is a statutory entitlement of the Fund, not an obligation, and plaintiffs cannot claim it as of right. The court further held that plaintiffs are not entitled to pursue adjudication of general damages in the absence of the Fund accepting the injuries as serious or assessment by the appeal tribunal under Regulation 3. The assessment of serious injury is an administrative process, and courts lack jurisdiction to...

Court Disposition

Both referred questions answered in the negative. Costs awarded against the Road Accident Fund.

Orders

  • It is declared that it is generally not competent for a court to direct the Road Accident Fund to furnish an undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996 where the Fund has not elected to furnish such an undertaking.
  • It is noted that the Road Accident Fund has conveyed a blanket election to furnish undertakings for future medical expenses, and courts may take judicial notice of this election.