THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  179/06
REPORTABLE
In the matter between:

DR CJ VAN DER MERWE                                              APPELLANT

and

ROAD ACCIDENT FUND                                             RESPONDENT

Coram:
Harms ADP, Lewis, Heher, Cachalia JJA et Hancke AJA

Heard:
14 May 2007

Delivered: 29 May 2007

Summary:
In terms of s 17 (5) of the Road Accident Fund Act 56 of 1996 the
supplier may claim directly from the Fund the third party’s costs of
accommodation or treatment or service rendered or goods supplied by
the supplier. The supplier’s claim is dependent upon the third party’s
claim and may thus aptly be described as an accessory claim. Such a
claim cannot become prescribed in terms of s 23 of the Act where the
third party’s has not.

Neutral citation:
This judgment may be referred to as Van der Merwe v Road
Accident Fund [2007] SCA 64 (RSA).

___________________________________________________________

CACHALIA JA
[1] The appellant is an anaesthetist. He rendered medical treatment to a
Mr Grundlingh following injuries Grundlingh sustained in a motor
vehicle collision on 2 October 1998. The treatment was administered on
20 February 2002, more than three years after the collision, at a cost of
R 1 319. 82. The appellant sought to recover this amount directly from
the Road Accident Fund (the respondent) and submitted a claim to it in
terms of s 24(3) of the Road Accident Fund Act 56 of 1996 on 27 June
2002. The Fund did not respond and on 11 February 2003 the appellant
caused a magistrates’ court summons to be served on the Fund for
payment of this amount. The Fund raised a special plea of prescription
averring that the claim had become prescribed because it had been
submitted to the Fund more than three years after the accident. At the
hearing, the parties requested the magistrate to decide this question on the
basis of a stated case. He upheld the plea and dismissed the claim. The
Pretoria High Court (Hartzenberg J with whom De Vos J concurred)
dismissed the appellant’s appeal1 but granted leave to appeal to this court.

[2] For the purposes of this appeal the parties placed further facts,
which have a material bearing on its outcome, before this court. These
were that Grundling submitted his claim for bodily injuries, which did not
include the appellant’s claim, to the Fund on 1 September 2000, that is,
before the appellant had treated him; that when the appellant submitted
his claim on 27 June 2002, the Fund had not yet finalised Grundlingh’s
claim; and that the Fund settled Grundlingh’s claim on 27 November
2002 without taking the appellant’s claim into account in the settlement.

1 The case is reported as Van der Merwe v Road Accident Fund 2006 (3) SA 88 (T).

[3] Prescription is dealt with in s 23 of the Act. Section 23(1) states
that the right to claim compensation from the Fund ‘shall become
prescribed upon expiry of a period of three years from the date upon
which the cause of action arose’. Section 23(3) provides that
‘(n)otwithstanding subsection (1), no claim which has been lodged in
terms of section 24 shall prescribe before the expiry of a period of five
years from the date on which the cause of action arose.’ Thus where a
third party submits a claim to the Fund in the prescribed form2 within the
three-year period the claim prescribes only after a period of five years.
Conversely, if the claim is submitted after the three-year period specified
in s 23(1) has elapsed, it will have prescribed. This is so even if it was
submitted before the five-year period specified in s 23(3) has passed. 3

[4] On the facts before us Grundlingh’s third party claim had not
become prescribed at the time the appellant had submitted his claim as
the five-year period specified in s 23(3) had not run its course. And even
though Grundlingh had not yet been treated by the appellant at the time
he submitted his claim to the Fund, and could thus not have included the
appellant’s part of the claim at that stage, there was no impediment to his
amending the claim to include the appellant’s claim at any stage before
the claim had been finalised. By doing so he merely would have
augmented his existing claim for damages.

[5] Counsel for the Fund contends that the appellant’s claim, based as
it is on the same cause of action as Grundlingh’s, must also comply with
the prescription requirements in the Act. Thus, so it is contended, just as
Grundlingh was required to submit his claim to the Fund within three

2 Section 24 of the Act.
3 Krischke v Road Accident Fund 2004 (4) SA 338 (W) para 19.

years of the cause of action having arisen, so too was the appellant as a
supplier of medical services. And, the contention continues, because the
appellant had not done so his claim had become prescribed.

[6] The issue before us is whether the appellant’s claim could have
become prescribed even though Grundlingh’s had not. The answer
requires a brief examination of s 17(5). It provides as follows:

‘Where a third party is entitled to compensation in terms of this section and has
incurred costs in respect of accommodation of himself or herself or any other person
in a hospital or nursing home or the treatment of any service rendered or goods
supplied to himself or herself or any other person, the person who provided the
accommodation or treatment or rendered the service or supplied the goods (the
supplier) may claim the amount direct from the Fund or an agent on a prescribed
form, and any such claim shall be subject, mutatis mutandis, to the provisions
applicable to the claim of the third party concerned, and may not exceed the amount
which the third party could, but for this subsection, have recovered.’

[7] The section confers on a supplier a statutory right to recover,
directly from the Fund, the costs of accommodation, treatment, services
or goods instead of claiming such costs from the third party. It was
enacted for the benefit of suppliers to ensure that they receive payments
made to injured persons who incur hospital and medical expenses in
respect of their injuries. But this right arises only if the third party is
entitled to claim the amount as part of his or her compensation from the
Fund.4 Put another way the right arises only if the third party has a valid
and enforceable claim against the Fund and has complied with the
necessary formalities such as submitting a claim in compliance with the
prescribed procedure. The supplier’s claim is therefore dependent upon

4 See Daniels MMF-RAF The Practitioner’s Guide (Updated 2006) E33.

the third party being able to establish his or her claim.5 In this sense it
may aptly be described as an accessory claim.

[8] I revert to the facts in this case. Grundlingh submitted his claim to
the Fund within the prescribed three-year period. As such this claim could
have become prescribed only five years after the collision. And as I have
mentioned, when the appellant submitted his claim to the Fund
Grundlingh’s had not yet been finalised (by judgment or settlement) or
become prescribed. It is not disputed that Grundlingh had incurred the
costs of the treatment and that he would have been entitled to include
these costs as part of the claim, as s 17(5) envisages. The only issue thus
is whether the claim had become prescribed.

[9] In my view once it is accepted that Grundlingh’s claim had not
become prescribed at the time the appellant submitted his, the appellant’s
accessory claim, being part and parcel of Grundlingh’s, similarly could
not have. Moreover, it is illogical to interpret the section in the way the
Fund would have it, as this would effectively negate the supplier’s right
to claim directly from the Fund.

[10] The following order is made. The appeal is upheld with costs
including the costs of two counsel. The order of the court below is
amended to read:

‘The appeal is upheld with costs.’

5 Cf AA Mutual Insurance Association Ltd v Administrateur, Transvaal 1961 (2) SA 796 (A) at 805 B-
C.

___________________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
HARMS ADP
LEWIS JA
HEHER JA
HANCKE AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal

Date:
29 May 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

DR C J VAN DER MERWE
v
ROAD ACCIDENT FUND

The Supreme Court of Appeal today decided that the Road Accident Fund may
not plead prescription against a supplier’s claim for the costs of
accommodation, treatment, services or goods of medical services where a third
party’s claim itself has not prescribed or been finalised through judgement or
settlement. This is because the supplier’s claim is dependent upon, and
accessory to, the third party’s.

The appeal arose against the following background. The appellant, an
anaesthetist, rendered medical treatment to a Mr Grundlingh following injuries
Grundlingh had sustained in a motor vehicle collision on 2 October 1998. The
treatment was administered on 20 February 2002, more than three years after
the collision. The appellant sought to recover this amount directly from the Fund
by submitting a claim to it on 27 June 2002. The Fund did not respond and the
appellant caused a magistrates’ court summons to be served on the Fund for
payment of this amount in February 2003. The Fund raised a special plea of
prescription averring that the claim had become prescribed because it had been
submitted beyond the three-year period set in the Road Accident Fund Act 56 of
1996. It was common cause that when the appellant submitted his claim to the
Fund on 27 June 2002, the Fund had not yet finalised Grundlingh’s claim and
his claim had not yet become prescribed. The Fund subsequently settled
Grundlingh’s claim without taking the appellant’s into account.

The SCA held that s 17 (5) of the Road Accident Fund Act 56 of 1996 (the Act)
gives a supplier the right to claim directly from the Fund the third party’s costs of

accommodation or treatment or service rendered or goods supplied by the
supplier. Such a claim, being dependent on and accessory to the third party
claim cannot therefore become prescribed where the third party’s has either not
prescribed or otherwise been finalised. It held further that the interpretation
which the Fund sought to place on this section, that the supplier was obliged to
submit his or her claim within three years of the cause of action having arisen,
was illogical as it effectively negates the supplier’s claim.