Road Accident Fund v Cloete NO and Others

• Jurisdiction: South Africa
• Citation: 2010 (6) SA 120 (SCA)

Road Accident Fund v Cloete NO and Others
2010 (6) SA 120 (SCA)

2010 (6) SA p120

Citation	2010 (6) SA 120 (SCA)
Case No	474/08
Court	Supreme Court of Appeal
Judge	Harms DP, Heher JA, Maya JA, Griesel AJA and Tshiqi AJA
Heard	September 11, 2009
Judgment	September 29, 2009
Counsel	WRE Duminy SC for the appellant.; O Rogers SC (with AS de Villiers) for the first and second respondents.; No appearance for the third respondent.

Flynote : Sleutelwoorde D

Arbitration — Submission of question of law for adjudication by court — Whether High Court having jurisdiction to hear matter — Whether question referred by arbitrator amounting to question of law — Question whether existing E case correctly decided on facts not amounting to question of law — Court lacking jurisdiction to entertain matter — Arbitration Act 42 of 1965, s 20(1).

Headnote : Kopnota

Section 20(1) of the Arbitration Act 42 of 1965, which permits an arbitrator at any time during the course of an arbitration to refer to the High Court 'any F question of law' in the form of a special case 'for the opinion of the court', does not confer jurisdiction on the High Court to entertain a question as to whether an existing case was correctly decided on its facts, since this does not amount to a 'question of law', but instead calls for a value judgment. (Paragraphs [47] - [49] at 134I - 135D.)

Cases Considered

Annotations G

Reported cases

Southern Africa

Administrator, Transvaal v Kildrummy Holdings (Pty) Ltd and Another H 1978 (2) SA 124 (T): referred to

Dabner v South African Railways and Harbours 1920 AD 583: referred to

D'Ambrosi v Bane and Others 2006 (5) SA 121 (C): referred to

Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd 1984 (2) SA 462 (C): referred to

Erasmus Ferreira & Ackermann and Others v Francis 2010 (2) SA 228 (SCA) ([2009] 3 All SA 500): I referred to

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): referred to

Government of the Republic of South Africa v Midkon (Pty) Ltd and Another 1984 (3) SA 552 (T): referred to

Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd ('Perskor') J 1992 (4) SA 791 (A): referred to

2010 (6) SA p121

Ongevallekommissaris v Santam Bpk 1999 (1) SA 251 (SCA): referred to A

Standard General Insurance Company Ltd v Dugmore NO 1997 (1) SA 33 (A): applied

Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) (2007 (5) BCLR 503; [2007] 2 All SA 243): referred to

Van Wyk v Santam Bpk 1998 (4) SA 731 (C): referred to

Zysset and Others v Santam Ltd 1996 (1) SA 273 (C): compared. B

England

Babanaft International Co SA v Avant Petroleum Inc (The 'Oltenia') [1982] 3 All ER 244 (CA): referred to

Halfdan Grieg & Co A/S v Sterling Coal & Navigation Corporation and Another [1973] 2 All ER 1073 (CA): referred to C

Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43: referred to

Taylor Woodrow Holdings Ltd and Another v Barnes & Elliott Ltd [2006] EWHC 1693 (TCC): referred to.

Statutes Considered

Statutes D

The Arbitration Act 42 of 1965, s 20(1): see Juta's Statutes of South Africa 2009/10 vol 1 at 2-8.

Case Information

Appeal against a decision in the Cape Town High Court. The facts appear from the minority judgment of Griesel AJA.

WRE Duminy SC for the appellant. E

O Rogers SC (with AS de Villiers) for the first and second respondents.

No appearance for the third respondent.

Cur adv vult. F

Postea (September 29).

Judgment

Griesel AJA:

[1] This is an appeal and cross-appeal against a judgment of the High Court, Cape Town (Cleaver J), which comes before us with leave of that G court. The matter arises from an arbitration between the parties in the course of which the arbitrator stated a question of law for the opinion of the court in terms of s 20(1) of the Arbitration Act 42 of 1965 (the Act). [1]

[2] The appellant, the Road Accident Fund (the Fund), established in terms of the Road Accident Fund Act 56 of 1996, is the defendant in the arbitration. The first respondent (the first claimant in the H arbitration) is the curator ad litem for Dr Els Thomas, a young medical practitioner from Belgium, who was seriously injured in a motor collision near Cape Town

2010 (6) SA p122

Griesel AJA

A on 8 October 1996 while on vacation in South Africa. The second respondent (the second claimant in the arbitration) is her father, Mr RRJ Thomas, acting as her duly appointed 'bewindvoerder' (equivalent of a curator bonis) in Belgium. (In what follows I refer to the respondents individually by name and collectively as 'the claimants'.) The arbitrator, senior counsel at the Cape bar, has been joined as the third respondent. B He abides the decision of the court and has played no active role in these proceedings.

Factual background

[3] Dr Thomas had commenced her own practice near Antwerp in C Belgium not long before the accident happened. As a result of the injuries sustained in the collision, she suffers from mental, physical and psychological handicaps which prevent her from practising as a medical doctor and from being gainfully employed at all. After the appointment of a curator ad litem to represent her, action was instituted in the Cape D Town High Court against the Fund to recover damages, inter alia, in respect of the cost of medical care, the cost of accommodation, and loss of earning capacity in respect of Dr Thomas. That litigation was in due course settled on the basis that the Fund admitted liability for 70 percent of the damages suffered by Dr Thomas due to her injuries. By agreement between the parties the quantum of her claim was thereupon referred for E determination by way of arbitration in terms of the Act.

[4] The hearings relating to the quantum of the claim took place before the arbitrator in Belgium over three sessions during February 2003, August/September 2003, and September 2005, before final argument was addressed to the arbitrator during March 2006. He made an interim F award on 15 June 2006, as well as a further (final) award on 19 September 2006.

[5] At the heart of the dispute between the parties lies the entitlement of Dr Thomas to certain benefits in terms of the Belgian social security system and the question whether any such benefits should be deducted G from the damages payable by the Fund. According to Professor Guido van Limberghen, professor in Social Security Law at the Vrije Universiteit Brussel, who submitted an expert report on behalf of the claimants, self-employed persons in the position of Dr Thomas qualify for social security benefits consisting of medical and 'invalidity' (disability) insurance; H a family benefit insurance; pension insurance; and insolvency insurance. The social security system was established by legislation and administered by the state. It is compulsory and regulated by public legislation, not by private contract.

[6] The social security scheme for medical insurance is administered through insurance institutions, of which the Onafhankelijk Ziekenfonds I is one. Dr Thomas is a member of the Onafhankelijk Ziekenfonds and has received benefits from it arising from the injuries sustained in the collision. Part of those benefits relate to compulsory cover, and the remainder to optional cover she enjoyed under those schemes.

[7] The fact that the accident occurred in South Africa does not deprive J Dr Thomas of the right to the assistance of the Belgian medical cost

2010 (6) SA p123

Griesel AJA

insurance for the self-employed. This entails a right to compensation for A the treatment she received in a South African nursing institution and the treatment she subsequently received after her return to Belgium.

[8] She is also entitled to employment disability benefits for the period that she was treated in South Africa and for the period after her return to Belgium. Under Belgian law the statutory insurance (or social B security) institutions are obliged to pay compensation to Dr Thomas in anticipation of recovery of damages from any accountable third party or its insurer involved. The Belgian insurance institution (in this case the Onafhankelijk Ziekenfonds) is entitled to recover such compensation from the wrongdoer if the accident occurred in Belgium or in a country that recognises its right to recover, of which South Africa is not one. C

[9] It appeared, further, that there is no entitlement to benefits once actual compensation has been received from an accountable third party. Thus Dr Thomas's right of recovery against the Belgian scheme will fall away once she receives compensation from the Fund. There is a D statutory duty on a claimant to keep the relevant insurance institution fully informed as to the existence of claims against wrongdoers and diligently to pursue such claims. In this regard Professor Van Limberghen expressed the following view regarding the possibility of Dr Thomas recovering double compensation in respect of her injuries: E

"To enable the [Belgian] insurance institution to recuperate the compensation of the medical and invalidity insurance, to prevent doctor Thomas from being compensated twice and to prevent the Road Accident Fund from escaping its obligations towards doctor Thomas, the only solution is an agreement entered into between doctor Thomas and the Belgian insurance institution. In that agreement doctor Thomas F has to undertake to repay the compensation she receives from the Road Accident Fund to the insurance institution insofar as it covers the compensation that she had already received from the insurance institution.'

[10] The evidence further revealed that Mr Thomas, on behalf of himself and his daughter, had in fact furnished an undertaking to refund G to the Belgian insurance institutions such benefits as Dr Thomas...