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Is an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 sufficient to include cost of a domestic assistant?

 

Many, recently would have noted the judgement in the matter of K P Mphirime v RAF (2016) – unreported, as the honourable judge stated that a case was made out that the plaintiff would be entitled to be paid for the costs of employing a domestic assistant, and these cost would not be covered by a Section 17(4)(a) undertaking which is normally tendered by the Road Accident Fund.

 

This thus raises the question of whether the cost of a domestic assistant falls under the definition and obligations of Section 17(4) (a) of the Road Accident Fund Act 56 of 1996, or under the general delictual costs as per Section 17(1) of the Act.  Is a claimant entitled to claim the costs of a domestic to be paid in a lump sum or is the RAF entitled to tender a Section 17(4)(a) undertaking to cover these costs?

 

If one is to consider Section 17(4) and more specifically Section 17(4)(a), which states that; where a claim for compensation under subsection 1- 
“includes a claim for the costs of the future accommodation of any person in a hospital or nursing home or treatment of or  rendering of a service or supplying of goods to him or her, the Fund or an agent shall be entitled, after furnishing the third party concerned with an undertaking to that effect or a competent court has directed the Fund or the agent to furnish such undertaking, to compensate

 

i) the third party in respect of the said costs after the costs have been incurred and on proof thereof; or

ii) the provider of such service or treatment directly, notwithstanding section 19 (c) or (d), in accordance with the tariff contemplated in subsection 4B.”

 

The key aspect from the above Section is the interpretation of the word “service”.  On closer reading of this section it would seem to suggest that services should include the costs of a domestic, if one reads it as a complete sentence. 

 

However, the honourable judge in the above case did not read it as such, but rather as a connected sentence structure to hospitals and nursing homes and suggested that Section 17(4)(a) as read with Section 17(4)(b), suggested that the tariffs applicable would be that of health services provided by public health establishments, and that no other services is indicated or defined.  And thus rendering of services can only mean health services.  

 

If the above view is to be adopted this would only suggest that, litigation costs would increase as the plaintiff would need to prove he/she would need a domestic and for what reasons, as well as possibly increasing the claim of the plaintiff. 

 

It has been suggested that the Road Accident Fund intends taking the above case on appeal, and thus until the appeal is heard, and more specifically we get an interpretation on what is to be included in “services” as per section 17(4)(a), all claims for a domestic will need to be held in abeyance.

 

Prepared By:  Nithen Maharaj (Senior Associate) (Litigation & RAF Dept) (PMB Office)

E-mail:  nithenm@tmj.co.za

Tel:  033-341 9100