Adv Sayed N.O v Road Accident Fund (36492/2021) [2024] ZAGPPHC 1325 (18 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1325 | Noteup | LawCite sino index ## Adv Sayed N.O v Road Accident Fund (36492/2021) [2024] ZAGPPHC 1325 (18 December 2024) Adv Sayed N.O v Road Accident Fund (36492/2021) [2024] ZAGPPHC 1325 (18 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1325.html sino date 18 December 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: 36492/2021 (1) REPORTABLE:  NO. (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED. DATE : 18 DECEMBER 2024 SIGNATURE: In the matter between: ADVOCATE S SAYED N.O (CURATRIX AD LITEM FOR L[…] M[…]) Plaintiff and ROAD ACCIDENT FUND Defendant Summary: Procedure – pre-trial conference – concessions made at a pre-trial conference are binding on the parties – this includes the RAF and the issue of acceptance of the seriousness of a plaintiff’s injuries. ORDER 1.          The plaintiffs application in terms of Rule 38(2) is granted as per the prayers in the Notice of Motion. 2. It is declared that the defendant is liable for 100% of the plaintiff’s proven or agreed damages . 3. The defendant shall pay the plaintiff an amount of R4 903 359.50 (four million nine hundred and three thousand, three hundred and fifty nine rand and fifty cents) in full and final settlement of the plaintiff’s claim for general damages and loss of earnings, payable into the plaintiff’s attorneys of record trust account with the following details: Account Holder: Ehlers Attorneys Bank Name: FNB Branch Code: 261550 Account Number: 6[…] 4.          The defendant shall be liable for interest on the above-mentioned amount, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended, from and including 15 days after date of order, up to and including date of payment thereof. 5.          The defendant is ordered to furnish the plaintiff with an undertaking, in terms of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 , for the costs of the administration of the proposed trust, future accommodation in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the injured after such costs have been incurred and on proof thereof, relating to the injuries sustained by the plaintiff on 26 May 2018. 6.          The defendant is ordered to pay the plaintiff’s taxed or agreed party and party costs on the High Court scale, in accordance with Rule 70 of the Uniform Rules, subject to the discretion of the taxing master, including the following: 6.1 The defendant is ordered to pay the costs and fees of the Curatrix ad litem , which shall be on scale C in accordance with Rule 69 and Rule 70 of the Uniform Rules. These costs shall include the costs the drawing of reports and day fees for 5 November 2024 . 6.2 The costs of Adv Caleb Dredge, which shall be on scale C in accordance with Rule 69 and Rule 70 of the Uniform Rules, briefed and appearing for trial, including 5 November 2024. 7.          The defendant is ordered to pay the plaintiff’s aforesaid costs within 14 days from the date upon which the accounts are taxed by the taxing master and/or agreed between the parties. 8.          The defendant shall be liable for interest on the costs aforementioned, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended, from and including 15 days after date of allocator or agreement, up to and including date of payment thereof. 9.          A trust is to be established for the protection of the funds awarded in this matter; 9.1       The trust shall subsist up until the plaintiff reaches the age of 18, subject to plaintiff’s right to apply to the High Court, for the dissolution of the trust. 9.2       The following trustees for the trust are appointed: Saqsby Administrators (Pty) Ltd and RW Robbertse. Attached is the draft trust instrument, marked annexure “XYZ”. 10.       The trustees shall provide security in accordance with the requirements of the Master of the High Court. The plaintiff’s attorneys, Ehlers Attorneys, are authorised to pay from the abovementioned funds held in trust, the costs to set security to the Master of the High Court by the trustees of the trust to be created, which costs in turn shall be refunded by the defendant to the plaintiff on proof of payment thereof. 11.       The remuneration of the trustees shall be in accordance with the trust instrument. 12.       Amendments to the trust instrument relating to the termination or remuneration of the trustees shall be subject to the approval of the High Court. 13.       The defendant shall be liable for the costs and expenses for the creation and management of the trust, which form part of the undertaking furnished in terms of s 17(4)(a) of the Road Accident Fund Act.  Such costs will include the fees of the trustees. 14.       The plaintiff’s attorneys, Ehlers Attorneys, shall keep the monies received as set out in paragraph 3 of this order in their Attorney’s trust account and will only be allowed to pay such monies over to the trustees of the trust to be created in terms of paragraph 10 of this order, once the Master of the High Court has issued the trustees with the necessary letters of authority. 15.       The plaintiff’s abovementioned attorneys are, however, authorised and ordered until such time as the trustees are able to take control of the capital sum and to deal with same in terms of the trust deed, to pay from the capital amount: 15.1        Any reasonable payments to satisfy any of the plaintiff’s needs that may arise and that are required in order to satisfy any reasonable need for maintenance, treatment, care, aids or equipment that may arise in the interim; 15.2        The attorney and client fees and expenses of the plaintiff from the abovementioned funds held in their Attorney’s trust account. 16.       It is noted that there is a valid Contingency Fee Agreement in existence. JUDGMENT The matter was heard in open court and the judgment was prepared and authored by the judge whose name is reflected herein and was handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on Caselines.  The date of handing-down is deemed to be 18 December 2024. DAVIS, J Introduction [1] The principal dispute in this matte was whether, by way of concessions made at a pre-trial conference, the Road Accident Fund (the RAF) should be deemed to have accepted the seriousness of injuries sustained by a minor as contemplated in the proviso to section 17(1) [1] of the Road Accident Fund Act [2] (the RAF Act). Background [2] The third party contemplated in the RAF Act on whose behalf the action had been instituted is a minor.  He was six years old when he, as a pedestrian, was injured in a motor vehicle accident on 26 May 2018. [3] The injuries sustained by the minor and the consequences thereof have been assessed by no less than 14 experts.  The injuries shall be dealt with later in this judgment. [4] At the time of the trial, the minor was 13 years old and was represented by Adv Sayed, who had been appointed as a curatrix ad litem for the minor by Manamela AJ on 5 September 2022. [5] The matter came before me as one of six trials referred to me from the civil trial roll of 5 November 2024.  The RAF was represented.  The matter proceeded on the basis of the plaintiff’s expert reports, supported by affidavits and which had been admitted as evidence in terms of Rule 38(2). [6] There was no dispute on the merits and the liability of the RAF for whatever loss the plaintiff may prove.  There was no claim for past medical expenses and no dispute about the RAF’s obligation to furnish an undertaking for future expenses as contemplated in section 17(4)(a) of the RAF Act. [7] The RAF had some difficulty in providing Mr Shimange, who appeared on its behalf, with instructions. The factual basis for the actuarial calculations had been accepted as correct, but the issue of contingencies not.  Mr Shimange had, however not been favoured with any expert reports or other ammunition to attack the calculation.  After some debate however, the plaintiff adjusted the original contingencies applied, reducing the claim for loss of earnings to R4 203 359.50.  This appeared to me to be a fair reflection of the minor’s future loss of earnings. [8] This left the issue of non-pecuniary (general) damages as the only outstanding dispute and, more specifically, whether the plaintiff could proceed with the claim under this head of damages or whether it would have to be referred to the HPCSA in order to determine whether the injuries sustained by the minor was serious enough to qualify for such a claim. [9] On behalf of the plaintiff Adv Dredge submitted that the RAF had previously made concessions at a pre-trial conference which amounted to an acceptance of the issue of seriousness of the injuries as contemplated in Duma [3] and subsequent cases. The pre-trial conference [10] A second pre-trial conference had been held between the parties’ representatives on 12 March 2024.  The RAF was represented by the state attorney. [11] The relevant questions and answers relied on by the plaintiff as exchanged at this pre-trial conference, were the following: “ 9.2     Has the plaintiff proposed a settlement? Plaintiff’s answer:     The plaintiff awaits an offer as follows: - Merits of the claim.  The plaintiff was a minor at the time of the accident, merits should be conceded. - Section 17(4) Undertaking for future medical treatment. - General damages: The defendant to inform the plaintiff that the injuries are serious and the plaintiff qualifies for general damages. - Loss of earnings. - 9.3       Has the defendant tendered a settlement? Answer: No. 9.4       If not, the parties record that the reasons for a settlement not having been offered/tendered are the following: 9.4.1   Plaintiff: await offer from the defendant. 9.4.2   Defendant: await instructions. 9.5       Does the defendant intend making a settlement offer and if so, when will same be received? Defendant’s answer as per the first pre-trial dated 6 December 2020. 9.5.1   The defendant intends to make a settlement offer.  The defendant’s attorney awaits instructions from the defendant.  It is foreseen that instruction will be forthcoming.  The defendant reserved its rights. Defendant’s answer: Prior to trial date … 13.8    The plaintiff requests the defendant to indicate, in writing, specifically which findings of the plaintiff’s experts it disputes on or before 16h30 on 22 October 2024. The parties agree that if the defendant does not do so by the aforesaid date and time, the factual content, factual findings, conclusions reached and opinions expressed in the plaintiff’s experts’ reports in respect of which the defendant did not serve a counter report, shall be agreed to be common cause and admitted . ANSWER: The defendant will confirm in writing. 14.6    No issue needs to be referred to mediation or arbitration.  The defendant however reserve their rights to refer the issue of general damages (if any) to the HPCSA.  The defendant to indicate if they are in agreement that the plaintiff does qualify for a claim for general damages? If not, provide a legal basis/reason for the rejection. Defendant’s answer: Await instructions ” . [12] The RAF had not delivered any expert reports and did not, in writing, as agreed, dispute any of the plaintiff’s expert reports, at the agreed date and time (in fact, no dispute was raised until the trial date). The plaintiff’s contentions [13] Reliant on the general principals regarding admissions in civil proceedings [4] , the plaintiff argued that the consequence of the RAF’s failure, amounted to an admission that the plaintiff was entitled to claim general damages for the minor. [14] Furthermore, the plaintiff made reference to the fact that Rules 37(4)(a) and 37(6)(g) expressly make provision for parties to, by way of admissions, expedite the trial and limit the issues before court [5] . [15] For purposes of the above, admissions made by or on behalf of a party, were admissions “on record”, binding such a party [6] . [16] The plaintiff’s relevant experts have determined that, applying the narrative test provided for in the RAF Regulations, the minor has suffered a 32% WPI (Whole Person Impairment) thereby qualifying him to claim general damages as contemplated in section 17(1A).  The plaintiff contended that, as the RAF had admitted to this conclusion, it must follow that the RAF had accepted the seriousness of the minor’s injuries. The RAF’s contentions [17] Mr Shimange submitted on behalf of the RAF that, despite the aforesaid admission, which took place by default, the minutes of the pre-trial conference still reserved the RAF’s rights in respect of the issue of general damages, entitling it to reject a claim for such damages. [18] This, the RAF had done, by way of a terse email, sent during the course of the day of trial as follows: “ Tue 5 Nov 2024      12h14 Good day GD rejected Roseline will send LOE tender shortly Kind regards ” . This email was sent from one Melishee Nainaar from the RAF to the state attorney, Mr Mahlori Shimange. Evaluation [19] The requirements for a plaintiff to qualify to claim general damages are not only statutorily prescribed but its application has by now become trite.  It is this: in terms of the proviso to section 17(1), the RAF shall only be liable to compensate a plaintiff for general damages (non-pecuniary loss) if the seriousness of such a plaintiff’s injuries has been assessed as contemplated in section 17(1A). [20] Such assessment, for which the qualifying threshold is 30% WPI, shall be based on a prescribed method and shall be carried out by a medical practitioner [7] registered as such under the Health Professions Act [8] . [21] The “method” of assessment has been prescribed in Regulation 3 of the Road Accident Fund Regulations promulgated on 21 July 2009 [9] . [22] A plaintiff who has undergone such an assessment in the prescribed method, shall obtain a serious injury assessment report from the medical practitioner who has performed the assessment [10] . [23] Should the RAF not be satisfied that the injury had been correctly assessed, it may either reject the plaintiff’s serious injury assessment [11] or direct the plaintiff to submit him or herself to assessment by a medical practitioner designated by the RAF [12] .  Should there still be disputes thereafter as to the seriousness of the injuries, the issue shall be dealt with by an appeal tribunal appointed by the HPCSA after due exchange of notices as provided for in the Regulations [13] . [24] It is also trite that the above procedures are peremptory and that a court has no power to determine the seriousness of the injuries [14] . [25] The position could not have been put clearer in RAF v Faria [15] (at par 35): “ As Duma makes clear, the position is now that ‘unless the Fund is so satisfied [i.e that the injuries are serious], the plaintiff simply has no claim for general damages; that “unless the plaintiff can establish the jurisdictional fact that the Fund is so satisfied, the court has no jurisdiction to entertain the claim for general damages against the Fund ”. [26] Faria illustrates that, even if the respective medical practitioners consulted by both parties might at a trial agree on the seriousness of the plaintiff’s injuries by way of a joint minute, until the RAF is itself satisfied as to such seriousness, the jurisdictional hurdle has not been crossed, “exasperating” as such a stance by the RAF might be [16] . [27] The question then is: can the RAF be deemed to have been “satisfied” as to the seriousness of the minor’s injuries in this case as a result of the admissions made at the pre-trial conference? [28] Exactly the same question came before Makgoka J (as he then was) in Sayed NO (obo a minor) v RAF [17] .  In fact, not only was the question the same, but the same curatrix as in the present matter, was the curatrix in that case and Adv Dredge, who appeared in this matter, also represented the curatrix as plaintiff in that case.  Lest there be any doubt, the same question and the same lack of response thereto featured as follows in that case: “ [10] In the pre-trial conference of 25 April 2017, the plaintiff requested the defendant to indicate in writing specifically which findings in the plaintiff’s expert reports it disputed.  The defendant had to give such indication by 16h30 on 28 April 2017.  The parties agreed that if the defendant failed to do so by within the agreed time limits “the factual content, factual findings, conclusions reached and opinions expressed of the plaintiff’s experts shall be agreed to be common cause ” (quoting from the judgment) . [29] The judgment proceeded as follows: “ [11] The defendant did not give any indication referred to above.  On 2 June 2017 the defendant transmitted a letter to the plaintiff in which it indicated that it rejected the serious injury assessment of the plaintiff and therefore rejected the plaintiff’s claim for general damages ”. [30] Although the RAF was little more pro-active in the matter before Makgoka J in that its rejection letter was furnished before the trial, which resulted in the issue being debated between the parties at yet another subsequent pre-trial conference, its stance was exactly the same as in the present matter.  This is reflected in the following quotation from the judgment: “ [13] Counsel for the defendant submitted that the defendant was not bound by the admissions made at the pre-trial conference because in the same pre-trial conference, the defendant reserved its rights in respect of general damages.    Counsel submitted that the clauses of the pre-trial minute had to be interpreted in totality, and in her submission, such an exercise would result in the conclusion that the admission made during the pre-trial conference was not binding on the defendant ”. [31] After referring to the nature of a pre-trial conference and the object of thereby eliminating the range of disputes as confirmed in various judgments [18] , Makgoka J referred to the summary of the purpose and reach of Rule 37 by Cachalia JA in Kruizenga [19] at par 6: “ The rule was introduced to shorten the length of trials, to facilitate settlements between parties, narrow the issues and to curb costs.  One of the methods the parties used to achieve these objectives is to make admissions concerning the number of issues which the pleadings raise … Rule 37 is therefore of critical importance in the litigation process.  This is why this court has held that in the absence of any special circumstances a party is not entitled to resile from an agreement deliberately reached at a Rule 37 conference ” (my underlining for emphasis as this principle is also applicable to the present matter). [32] In interpreting the minutes of the pre-trial conference which, as in the present instance, included in the latter part thereof a reservation of rights regarding the issue of general damages, Makgoka J concluded as follows: “ As I saw it, the reservation of rights by the defendant was subject to the over-arching agreement to admit the contents of the reports of the plaintiff’s experts. Put differently, that reserved right had to be exercised within the time frames agreed to by the parties, namely 16h30 on 28 April 2017. Any other construction of the pre-trial minute would render the agreement reached in the pre-trial conference nugatory … in the result I concluded that the defendant could not resile from the admission it had made, and in particular it was not open to it to deny the contents of the reports of the plaintiff’s experts ”. [33] I respectfully agree with the reasoning of Makgoka J, in particular the underlined portion of the above quotation.  One must also bear in mind that the above interpretational exercise was performed while the learned judge was alive to the conclusion of the SCA in Duma , to which he had referred to in his judgment. [34] In my view further, in both these cases, the situation was not one where the experts of the two parties were between them in agreement as to the seriousness of the injuries (which, it has been held in Faria, is not binding on the RAF, for it is the RAF itself which has to be satisfied, not its own experts).  It is a situation where the RAF itself had, by the exercise of a deliberate election, chosen to accept the conclusion of the plaintiff’s expert regarding the seriousness of the minor’s injuries.  It must be accepted that, before exercising this election, the RAF must have satisfied itself as to the correctness of that conclusion. [35] The situation is clearly to be distinguished from the many instances where the RAF has simply failed to take a decision as to whether to accept or reject a plaintiff’s serious injury report [20] .  Here, the RAF has clearly exercised an election and should be held bound to it. [36] I have quoted rather extensively from the judgment of Makgoka J, not only because of its direct relevance and similarity to the question which arose in this matter, but because, despite the court having been favoured with an uploaded copy of the judgment, it could not be traced in any of the databases of judgments, such as Saflii.  The RAF had however, not only accepted the existence of the judgment and contents thereof, but had, in an application for leave to appeal that judgment, abandoned any objection to the portions thereof quoted in this judgment.  The application for leave to appeal only centered around the contingency determinations made by Makgoka J.  It was refused by Ranchod J (subsequent to Makgoka J’s elevation to the SCA).  That refusal can be found on Saflii [21] . [37] The rules of precedent dictate that I am bound to follow the judgment of Makgoka J unless I were to be satisfied that it is “clearly wrong” [22] .  Not only am I unable to come to such a conclusion, I am in respectful agreement with that judgment. [38] It follows from the above, that I find the RAF to be bound to its acceptance of the assessment of the minor’s injuries as serious, and that the RAF had thereby satisfied itself that the plaintiff is entitled to claim general damages on behalf of the minor.  To put it differently, I find that, by utilizing the RAF’s own admissions, the plaintiff has, on a balance of probabilities, proven that the jurisdictional requirements for a claim for general damages, have been satisfied. The quantum of general damages [39] It is trite that, in assessing general damages, a court may be guided by case law and the awards granted by other courts in similar circumstances [23] . [40] One should also bear in mind that the assessment of general damages with reference to previous cases is “fraught with difficulty” and that comparable cases “ are a useful guide to what other courts have considered to be appropriate, but they have no higher value than that … ” [24] . [41] The minor’s undisputed injuries and the consequences thereof were that he had suffered head and facial trauma, with forehead and facial lacerations, a dental injury and a mild to moderate brain injury.  As a consequence, he suffers from attention and concentration difficulties, memory and learning difficulties, speech and language difficulties.  He presents with a moderate dysarthria as well as a neurocognitive disorder with behavioural disturbance.  He also suffered some hearing loss, although minimal. [42] After referring to some case law, the plaintiff’s counsel suggested a lump sum award of between R600 000.00 to R800 000.00.  Without making any formal concessions, the state attorney was of the view that an award of R700 000.00 would be fair and reasonable in the circumstances.  I agree. Protection of funds [43] The curatrix ad litem had furnished the court with an extensive report wherein all the above aspects had been canvassed.  The curatrix suggested that the funds be protected on behalf of the minor, but that the minor is not so incapacitated that he would not, after having attained the age of majority, be able to handle his estate, including the proceeds of this claim.  The curatrix is thanked for her assistance to the minor and to this court and is hereby discharged. Order [44] Consequently, the following order is made: 1.         The plaintiffs application in terms of Rule 38(2) is granted as per the prayers in the Notice of Motion. 2.         It is declared that the defendant is liable for 100% of the plaintiff’s proven or agreed damages. 3.         The defendant shall pay the plaintiff an amount of R4 903 359.50 (four million nine hundred and three thousand, three hundred and fifty-nine rand and fifty cents) in full and final settlement of the plaintiff’s claim for general damages and loss of earnings, payable into the plaintiff’s attorneys of record trust account with the following details: Account Holder: Ehlers Attorneys Bank Name: FNB Branch Code: 261550 Account Number: 6[…] 4.         The defendant shall be liable for interest on the above-mentioned amount, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended, from and including 15 days after date of order, up to and including date of payment thereof. 5.         The defendant is ordered to furnish the plaintiff with an undertaking, in terms of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 , for the costs of the administration of the proposed trust, future accommodation in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the injured after such costs have been incurred and on proof thereof, relating to the injuries sustained by the plaintiff on 26 May 2018. 6.         The defendant is ordered to pay the plaintiffs taxed or agreed party and party costs on the High Court scale, in accordance with Rule 70 of the Uniform Rules, subject to the discretion of the taxing master, including the following: 6.1         The defendant is ordered to pay the costs and fees of the Curatrix ad litem , which shall be on scale C in accordance with Rule 69 and Rule 70 of the Uniform Rules. These costs shall include the costs the drawing of reports and day fees for 5 November 2024. 6.2         The costs of Adv Caleb Dredge, which shall be on scale C in accordance with Rule 69 and Rule 70 of the Uniform Rules, briefed and appearing for trial, including 5 November 2024. 7.         The defendant is ordered to pay the plaintiff’s aforesaid costs within 14 days from the date upon which the accounts are taxed by the taxing master and/or agreed between the parties. 8.         The defendant shall be liable for interest on the costs aforementioned, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended, from and including 15 days after date of allocator or agreement, up to and including date of payment thereof. 9.         A trust is to be established for the protection of the funds awarded in this matter: 9.1      The trust shall subsist up until the plaintiff reaches the age of 18, subject to plaintiff’s right to apply to the High Court, for the dissolution of the trust. 9.2      The following trustees for the trust are appointed: Saqsby Administrators (Pty) Ltd and RW Robbertse. Attached is the draft trust instrument, marked annexure “XYZ”. 10.      The trustees shall provide security in accordance with the requirements of the Master of the High Court. The plaintiff’s attorneys, Ehlers Attorneys, are authorised to pay from the abovementioned funds held in trust, the costs to set security to the Master of the High Court by the trustees of the trust to be created, which costs in turn shall be refunded by the defendant to the plaintiff on proof of payment thereof. 11.      The remuneration of the trustees shall be in accordance with the trust instrument. 12.      Amendments to the trust instrument relating to the termination or remuneration of the trustees shall be subject to the approval of the High Court. 13.      The defendant shall be liable for the costs and expenses for the creation and management of the trust, which form part of the undertaking furnished in terms of s 17(4)(a) of the Road Accident Fund Act.  Such costs will include the fees of the trustees. 14.      The plaintiff’s attorneys, Ehlers Attorneys, shall keep the monies received as set out in paragraph 3 of this order in their Attorney’s trust account and will only be allowed to pay such monies over to the trustees of the trust to be created in terms of paragraph 10 of this order, once the Master of the High Court has issued the trustees with the necessary letters of authority. 15.      The plaintiff’s abovementioned attorneys are, however, authorised and ordered until such time as the trustees are able to take control of the capital sum and to deal with same in terms of the trust deed, to pay from the capital amount: 15.1    Any reasonable payments to satisfy any of the plaintiff’s needs that may arise and that are required in order to satisfy any reasonable need for maintenance, treatment, care, aids or equipment that may arise in the interim; 15.2    The attorney and client fees and expenses of the plaintiff from the abovementioned funds held in their Attorney’s trust account. 16.      It is noted that there is a valid Contingency Fee Agreement in existence. N DAVIS Judge of the High Court Gauteng Division, Pretoria Date of Hearing: 5 November 2024 Judgment delivered: 18 December 2024 APPEARANCES: For the Plaintiff:                                           Adv C M Dredge Attorney for the Plaintiff:                             Ehlers Attorneys, Pretoria. For the Defendant:                                      Mr M Shimange Attorney for the Defendant:                       The State Attorney, Pretoria [1] “ 17(1) …Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury … ”. [2] 56 of 1996. [3] Road Accident Fund v Duma 2013 (6) SA 9 (SCA). [4] Section 15 of the Civil Proceedings Evidence Act 25 of 1965: “ It shall not be necessary for any party in any civil proceedings to prove, nor shall it be competent for any such party to disprove any fact admitted on record of such proceedings ”. [5] See also: Hendricks v President Insurance Co Ltd 1993 (3) SA 158 (C) at 166E and MEC for Economic Affairs, Environment & Tourism, Eastern Case v Kruizenga 2010 (4) SA 122 (SCA) at 126E ( Kruizenga ). [6] Road Accident Fund v Krawa 2012 (2) SA 246 (ECG). [7] Section 17(1A) (a) and (b). [8] 56 of 1974. [9] Regulation 3: Assessment of serious injury in terms of section 17(1A) (1)           (a)        A third party who wishes to claim compensation for non-pecuniary loss shall submit himself or herself to an assessment by a medical practitioner in accordance with these Regulations. (b)        The medial practitioner shall assess whether the third party’s injury is serious in accordance with the following method: (i)         The Minister may publish in the Gazette, after consultation with the Minister of Health, a list of injuries which are for purposes of section 17 of the Act not to be regarded as serious injuries and no injury shall be assessed as resinous if that injury meets the description of an injury which appears on the list. (ii)         If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the AMA Guides, the injury shall be assessed as serious. (iii)        An injury which does not result in 30 per cent or more Impairment of the Whole Person may only be assessed as serious if that injury: (aa)       resulted in a serious long-term impairment or loss of a body function; (bb)      constitutes permanent serious disfigurement; (cc)       resulted in severe long-term mental or severe long-term behavioural disturbance or          disorder; or (dd)      resulted in loss of a foetus. [10] Reg 3(3)(a). [11] Reg 3(3)(d)(i). [12] Reg 3(3)(d)(ii). [13] Regulations 3(4) – 3(13). [14] Duma v RAF 2013 (6) SA 9 (SCA), RAF v Lebeko 2012 JDR 2176 (SCA) [2012] ZASCA 159 and K obo M and Another v RAF 2023 (3) SA 125 (GP). [15] 2014 (6) SA 19 (SCA). [16] Par [36]. [17] An unreported judgment which had been uploaded unto Caselines without citation and to which I shall refer more fully hereinlater. [18] Such a Rademeyer v Minister of Correctional Services (05/15044) [2008] ZAGPJHC 141 (30 April 2008), Hendricks (supra) and Price NO v Allied Building Society 1980 (3) SA 874 (A) at 882D. [19] At footnote 5 above. [20] As, for example, in Mphala v RAF (698/16) [2017] ZASCA 76 (1 June 2017). [21] Magaqana obo M v RAF (22663/16) [2018] ZAGPPHC 542 (30 July 2018). [22] Shabalala v Attorney-General, Transvaal, Gumede v Attorney-General, Transvaal 1995 (1) SA 608 (T) at 618 D – E. [23] Protea Assurance Co Ltd v Lamb 1971 (10 SA 530 (SCA) at 536A – B. [24] Minister of Safety & Security v Seymour 2006 (6) SA 320 (SCA) at par [17]. sino noindex make_database footer start