Sibanda v Affinity Health Insurance and Another (046976/2023) [2024] ZAGPJHC 778 (15 August 2024)
The court found that neither of the conditions required by rule 34A for an interim payment were met: there was no written admission of liability by the first defendant, nor had judgment been obtained for damages to be determined at a later stage. The plaintiff's application for expedited hearing or immediate...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 778
- Parties
- Plaintiff: Nkosinathi Osta Sibanda; Defendant: Affinity Health Insurance; Defendant: Another
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Judgment Date
- 15 August 2024
- Case Number
- 046976/2023
- Procedural Posture
- Interim Application / Application for Interim Payment Under Rule 34 a
- Outcome
- Application for interim payment dismissed; each party to pay their own costs.
- Judges
- Wilson
- Legal Topics
- Interim Payment, Personal Injury, Rule 34a Application, Costs Order
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nkosinathi Osta Sibanda
Plaintiff
Affinity Health Insurance
Defendant
Another
Defendant
Procedural Posture
Interim Application / Application for Interim Payment Under Rule 34 a
Legal Issues
- 1 Whether the court may order an interim payment under rule 34A in the absence of a written admission of liability or prior judgment for damages.
- 2 Whether the plaintiff is entitled to an expedited hearing or determination of the merits under rule 34A (7).
Ratio Decidendi
The court found that neither of the conditions required by rule 34A for an interim payment were met: there was no written admission of liability by the first defendant, nor had judgment been obtained for damages to be determined at a later stage. The plaintiff's application for expedited hearing or immediate determination of the merits was also refused, as the main action was not in a state to warrant acceleration and the merits could not be determined on the papers before the court. The judge declined to make a costs order against the plaintiff, noting his status as a lay litigant acting in good faith.
Court Disposition
Application for interim payment dismissed; each party to pay their own costs.
Orders
- The application for an interim payment under rule 34A of the Rules of this Court is dismissed.
- Each party will pay their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 046976/2023
DATE: 2024-08-15
1. REPORTABLE: NO.
2. OF INTEREST TO OTHER JUDGES: NO.
3. REVISED.
15 August 2024
In the matter between
NKOSINATHI OSTA SIBANDA
Plaintiff
and
AFFINITY HEALTH INSURANCE AND ANOTHER Defendants
JUDGMENT EX TEMPORE
WILSON, J: This is an application in terms of rule 34A of the Rules of Court for an interim payment in respect of medical costs and loss of income arising from a personal injury.
The plaintiff contends that he suffered injury as a result of the first defendant’s failure or refusal to authorise medical treatment timeously. Whether or not that is true, my power under rule 34A is circumscribed. I may only order an interim payment if the first defendant, in this case Affinity Health, has admitted in writing its liability for the plaintiff’s injury or if the plaintiff has obtained judgment against the first defendant for damages to be determined at a later stage.
Neither of those conditions applies here and accordingly I have no power to order an interim payment. I have made several attempts to explore with the plaintiff, who appears in person, the circumstances under which he could bring his action and this application properly before another judge and perhaps obtain some relief.
The plaintiff has unfortunately not been open to a discussion about how that might be possible and has asked me to make an order to expedite the main action in terms of rule 34A (7). It has also appeared at points during my exchange with the plaintiff that he may want me to determine the action on its merits today. Neither of those things can be done.
First of all, I am not satisfied that the main action is in such a state as to warrant an order for an accelerated hearing under rule 34A (7). Secondly, I am of course not in a position, on the papers before me, to determine the merits of that action.
The upshot of all of this, I regret, is that no relief can be granted to the plaintiff today. I hope that he manages to obtain professional
legal advice, which on the facts of this case, seems to me to be available to him on a contingency fee basis.
Nonetheless, there is only so far a judge can go to assist a lay litigant in the prosecution of a case that may or may not have merit. I have gone as far as I can. The fundamental problem is that rule 34A has not been properly engaged because there is no written admission of liability and no judgment against the first defendant.
The plaintiff litigates in person and is, while misguided in much of what he has done, not obviously in bad faith. I am not inclined to make a costs order against him.
For all these reasons I make the following order:
1. The application for an interim payment under rule 34A of the Rules of this Court is dismissed.
2. Each party will pay their own costs.
WILSON, J
JUDGE OF THE HIGH COURT
15 August 2024