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Posted 24 January 2023

Sibusiso Mahlangu, Associate

Road accident victims often suffer dire financial straits due to the burden of medical treatment and a partial reduction, or even total loss, of earning capacity. While these victims may have a claim against the Road Accident Fund, such claims may take years to finalize. However, Rule 34A of the Uniform Rules of Court provides a procedure to alleviate the burden endured by these victims, as it provides a mechanism to obtain an interim payment pending the finalization of the plaintiff’s claim. 

Third party claims against the Road Accident Fund are prone to delay. This is due to various aspects: the large number of accidents on South African roads which give rise to third party claims; the Fund’s incapacity due, amongst other matters, to its reported insolvency; and the congested South African court rolls, to name only a few. These long delays worsen the lives of road accident victims and can result in claimants being forced to accept reduced settlement offers in order to obtain much needed funds as early as possible.  

However, the Rule 34A interim payment procedure is available to a person who sustained injuries in a road accident as well as the dependents of a deceased road accident victim. In Karpakis v Mutual & Federal Insurance Co Ltd (1991(3) SA 489 (O) at 496 – 497 the court rejected the respondent’s contention that Rule 34A makes no provision for motor vehicle cases and is ultra vires as substantive, not procedural, because it makes provision for interim payouts in personal injury matters. The court held that this argument was fallacious because the wording of subrule (1) of Uniform Rule 34A is clearly wide enough to encompass such cases and does not make a substantive finding on the merits of the litigation in actions for damages for personal injuries or loss of support.   

An application for an interim payment is brought on notice of motion accompanied by an affidavit in support of the application. This affidavit must state the amount of damages claimed and the grounds for the application. As is the case with most applications, all documentary proof on which the applicant relies must accompany the affidavit. As stated in WD v AD [2021] ZAGP JHC 550 (para 19) relying on the Constitutional Court judgment My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC), it is imperative that the founding affidavit make out the applicant’s case, as the affidavit not only defines the issues between the parties but also places all the essential evidence before the court. The court in WD v AD also reiterated that the founding affidavit must contain sufficient factual averments to support the cause of action. This requirement is emphasized in  Erasmus Superior Court Practice (2015) vol 2 which confirms that the phrase contained in Uniform Rule 34A: “the court may” suggests that the court has a discretion, to be exercised judicially upon a consideration of all the facts,  taking into consideration the criteria set out in subrules (4) and (5) of Uniform Rule 34A. Erasmus relies on the judgment of Nel v Federated Versekeringsmaatskappy Bpk (1991) 2 SA 422 (T) at 427 as authority. It follows that it is in the interests of the applicant to disclose all material and relevant facts to the court in order to obtain the relief sought, the interim payment.

In terms of Uniform Rule 34A (4)(a)-(b) the court may only grant an interim payment when the defendant has, in writing, admitted liability for the plaintiff’s damages or the plaintiff has already obtained a judgment confirming the defendant’s liability for damages. In Harmse v Road Accident Fund [2015] JOL 34143 (GNP) (para 17), where the applicant sought an interim payment, he relied on an offer of settlement made by the respondent’s claims handler. This offer of settlement had previously been rejected by the applicant’s attorney, before the application was instituted. In dismissing the application, the court stated that there was no consensus between the parties on the liability of the respondent for the applicant’s damages. The court held that only in instances where the respondent had admitted liability or the applicant had obtained judgment for damages, may a court order an interim payment:

In my view, the rule [Uniform Rule 34A] envisages a clear, unequivocal and unconditional admission of liability for it to find application.” [own insertion]

The Road Accident Fund Act, 56 of 1996 limits the damages for which an applicant may seek an interim payment to past hospital and medical expenses as well as past loss of income. Section 17(6) of the Act reads as follows:

“the Fund… may make an interim payment to the third party out of the amount to be awarded in terms of subsection (1) to the third party in respect of medical costs, ….., loss of income and loss of support: Provided that the Fund ….shall …. only be liable to make an interim payment in so far as such costs have already been incurred and any such losses have already been suffered”. [own emphasis].

It is clear from this extract that the Fund can only make an interim payment when the applicant’s costs have already been incurred or the applicant’s loss has already been suffered. The provision disallows interim payments for future loss of earnings/reduction of earning capacity and disallows interim payments for future hospital and medical expenses.

In terms of Rule 34A (4) a court may only award a reasonable proportion of the damages to the applicant as an interim payment. Only a proportion of damages which, in the opinion of the court, are likely to be recovered by the plaintiff may be awarded to him or her. In Karpakis the court stated that to safeguard the defendant’s interests an award for damages should be “appreciably less” than any ultimate award. This is to avoid a situation where the claimant has spent all the money he or she has received under an order for interim payment and is now a man or woman of straw and so unable to repay the interim payment should he or she be ordered to do so in terms of  Uniform Rule 34A (10). 

One must remember Rule 34A (10) also authorises a court to, when making a final order or at any stage of the proceedings, on the application of any party, order that the plaintiff repay all or part of the interim payment. In Road Accident Fund v Applegate [2021] JOL 50603 (GP) (para 51) the court dismissed an application to rescind an order for interim payment and stated, obiter, that:

Cognisance should also be taken of the fact that in terms of subrule 10 of Rule 34A a court may, in granting a final order, order repayment of the interim payment or part thereof. It is therefore clear that the Defendant still can convince the trial court of its allegations that the vouchers are incorrect and or unsubstantiated.

An applicant should therefore properly quantify the claim and only apply for a reasonable proportion thereof as an interim payment, bearing in mind that a court may, in granting a final order, order repayment of some or all of the interim payment. While the defendant may elect to abide by the decision of the court to award an interim payment, applicants are to be cautious as this election will not preclude the defendant from subsequently opposing the quantum trial and even applying that the plaintiff repay all or a portion of the interim payment. As was stated in Karpakis (p 498):

It is quite clear that the Court, when it decides to grant an interim payment, does not in any way whatsoever quantify and assess plaintiff’s damages in the way it would do when giving judgment…”

While there are a number of hurdles to overcome in order to succeed with an application for an interim payment in terms of Rule 34A, the end result is certainly worth the trouble, as it is an excellent way to alleviate a road accident victim’s financial burden. If you are a claimant, you should take advantage of this procedure and discuss it with your attorney.