Terblanche v Road Accident Fund (36691/14) [2020] ZAGPPHC 157 (6 March 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC

OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG

DIVISION

(PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 36691/14

6/3/2020

In the matter between:

TERBLANCHE

JACOBUS WILLEM

Plaintiff

and

THE

ROAD ACCIDENT FUND Defendant

JUDGMENT

Mdalana-Mayisela J,

(1) The order in this matter was handed down on 25 November 2019. I now hand down my reasons for such order.

(2) The Plaintiff has instituted an action against the defendant for delictual damages resulting from the collision involving his motor

vehicle and the insured motor vehicle (“the collision”), which occurred on 23 December 2011. The plaintiff was a driver at the time of the collision.

(3) This matter came before me on the basis that most of the issues have been settled between the parties. The injuries sustained by the plaintiff as the result of the collision and the sequelae thereof are common cause between the parties. Liability of the defendant to compensate the plaintiff for proven delictual damages

was settled at 100% and the defendant gave a statutory undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“the Act”) for the future hospital, medical and related expenses of the plaintiff. The issue of general damages was settled in the sum of R800, 000.00 (eight hundred thousand rand). It was agreed between the parties that the defendant will compensate the plaintiff in the sum of R750 136.52 (seven hundred and fifty thousand one hundred thirty six rand and fifty two cents) for past hospital, medical and related expenses. It was further agreed that the defendant will compensate the plaintiff in the sum of R767 617,00 (seven hundred and sixty seven thousand six hundred and seventeen rand) for past loss of earnings.

(4) The only issue for determination by this court is whether a disability pension paid to the plaintiff in terms of Commuting Journey Policy (“CJP”) issued by Rand Mutual Assurance Company Ltd (“RMA”) falls to be deducted from the calculation in respect of the past loss of earnings of the plaintiff.

(5) At the time of the collision the plaintiff was employed by Murray & Roberts Cementation, Marikana Mine as a shift supervisor and had been so employed since 2006. His employment was regulated by written contracts of employment dated 22 June 2006 and 16 April 2007; and the permanent employee secondment contract to the Gautrain project. In terms of the employment contract dated 22 June 2006 the plaintiff was required to belong to a Provident Fund, and also to a Death and Disability Scheme. In addition to those Schemes, the employer took out a policy known as Commuting Journey Policy issued by RMA intended to cover the accident which occurs while the employee is journeying to or from work at the beginning or at the end of a work shift.

(6) The plaintiff was injured in the collision on his way from work. As a result of the injuries sustained in the collision and the sequelae thereof, the plaintiff was found medically unfit for work and was medically boarded in June 2012. The plaintiff after he was medically

boarded has been receiving a monthly disability pension in terms of the CJP from RAM, of which the total capitalised value is R4 141 870.49.

(7) It is common cause between the parties that the plaintiff has been rendered unemployable as a result of the collision. The parties

agreed on the amount payable to the plaintiff as compensation for past loss of earnings. They disagree on whether the monthly disability pension paid to the plaintiff by RAM should be deducted from the past loss of earnings award. Counsel for the plaintiff

referred me to three case law in support of his submission that the benefit received by the plaintiff from RAM is an insurance benefit which is to be regarded as res inter alios acta and therefore not deductible. Counsel for the defendant submitted during oral argument that his instruction was that the benefit received by the plaintiff from RAM should be deducted from the past loss of earnings award. It was not clear on what grounds the defendant sought to make a deduction. Counsel for defendant conceded that such submission could not be sustained in the light of the applicable case law.

(8) In terms of the CJP, should the employee accept the benefits payable in terms thereof when he has been injured in a motor vehicle accident, any benefits received by him from the Road Accident Fund (“RAF”) is to be refunded by him to RAM. In Erasmus Ferreira & Ackermann v Francis (311/08) (2009) ZASCA 54 (27 May 2009) the Supreme Court of Appeal (“SCA”) stated:

“…..I agree with Neethling, Potgieter and Visser Law of Delict 5ed (2006) at p

215-216 that ‘(q)uestions regarding collateral benefits are normative in nature;

they have to be approached and solved in terms of policy principles and

equity’ and that in doing so ‘there should always be a weighing-up of the

interests of plaintiff, the defendant, the source of the benefit as well as the

community in establishing how benefits resulting from damage-causing event

should be treated’.

The SCA concluded that it would not be double compensation or unfair

enrichment to the plaintiff in that case, if the benefit received by him from

RAM in terms of CJP was not deducted from the RAF award, because the

plaintiff was obliged in terms of CJP to refund RAM after receiving RAF

award.

(9) In the unreported judgment of Van der Merwe A M N.O obo H Odendaal v RAF case no. 14154/2011 dated 13 June 2014 para (11), Legodi J said:

“The issue is an attempt by the Road Accident Fund to want to make a

deduction, in respect of benefits payable to the plaintiff by Rand Mutual.

These benefits cannot be viewed as compensation for the plaintiff’s losses.

They are rather in the nature of insurance effected by the employer in favour

of the employee, at the employer’s own expense and without requiring any

further quid pro quo from employee. For example, a monetary contribution or

additional work. Rand Mutual Policy is an additional insurance benefit

procured by the benevolence of the employer. It was therefore res inter alios

acta, that is, a transaction entered into between the plaintiff’s employer and

Rand Mutual which cannot advantage or injure those who are not parties to

the transaction, for example, the Road Accident Fund, and had to be

disregarded in computing the plaintiff’s damages …..”

(10) The issue in dispute in the present matter is similar to the issue that was raised in the abovementioned case law. In view of the case law I find that the defendant is not entitled to make a deduction of the amount payable in terms of CJP.

(11) Accordingly, I handed down an order on 25 November 2019 as follows:

ORDER

1. The defendant shall pay to the plaintiff an amount of R750 136.52 (seven hundred and fifty thousand one hundred thirty six rand and fifty two cents) for past hospital, medical and related expenses.

2. The defendant shall pay to the plaintiff an amount of R767 617.00 (seven hundred and sixty seven thousand six hundred and seventeen rand) for past loss of earnings.

3. In the event of delay on payment in paragraph 1 & 2 above, interest shall accrue on such outstanding amount at 10% per annum calculated from fourteen (14) days from date of this order until date of payment.

4. The settlement amount and taxed or agreed costs shall be paid into the trust account of the plaintiff’s Attorneys, Van Velden-Duffey

Incorporated, by direct transfer into its trust account, details of which are as follows:

Account holder: Van Velden-Duffey Attorneys

Bank: ABSA Bank

Branch code: 63-01-46

Account no: [….]

Reference; MAT21569

5. The defendant shall pay the plaintiff’s costs of suit together with interest thereon calculated at the legal rate from a date fourteen (14) court days after allocator to the date of payment, such costs to include but not limited to:

5.1 the costs of Senior Counsel’s preparation as well as day fee and fees for drafting heads of argument;

5.2 the costs of all medico-legal, radiological, actuarial, pathologist, addendum and joint reports obtained by the plaintiff and served on the defendant before 7 October 2019; except for the actuarial reports dated 14 October 2019 and 30 October 2019.

MMP Mdalana-Mayisela

Judge of the High of South Africa

For the Plaintiff:

Adv P Du Plessis SC

Instructed by Van Velden-Duffey Attorneys

For the Defendant:

Adv M Rabaney

Instructed by Lekhu Pilson Attorneys