The Road Accident Fund Act 56 of 1996 (hereinafter “the Act”) was promulgated to protect and promote the socio-economic rights of victims of motor vehicle accidents (see Mbele v RAF 2017 (2) SA 34 (SCA). The undertaking contained in a section 17(4)(a) certificate is one of the methods used to achieve the purposes of the Act.
The Act provides that the Fund is entitled to compensate a claimant for three categories of future losses, after these costs have been incurred and on proof thereof, namely: (i) future costs of accommodation in a hospital or nursing home; (ii) medical treatment and (iii) the rendering of medical services or supplying of medical goods (together referred to hereinafter as “future hospital and medical expenses”). The Act also provides that the Fund may compensate the provider of future hospital and medical expenses directly. In terms of the Act, such compensation is payable only once the third party has been furnished with an undertaking certificate to this effect or a court has ordered the Fund to furnish such undertaking certificate.
The section 17(4)(a) undertaking certificate is a very useful tool available to a claimant suffering from accident-related symptoms. It covers a wide range of services and products for which a claimant may be compensated. However, one could argue that it is undervalued and underutilized by most of its recipients.
The judgment of Barnard NO v RAF (2017 (1) SA 245 (ECP) is authority on the ambit of an undertaking certificate. Notwithstanding the tender of an undertaking certificate, the claimant in Barnard sought an award of more than R1,7 million for the future employment of a domestic assistant, arguing that section 17(4)(a) of the Act did not provide for an undertaking certificate to cover the future costs of the services of a domestic assistant. RAF counter-argued that the undertaking certificate did make provision for the future costs associated with the provision of domestic assistance and that it was therefore not necessary for the court to award the claimant a lumpsum payment for this. The court was required to determine the ambit of section 17(4)(a) of the Act.
The court, in Barnard, found that our courts had previously held that the wording of section 17(4)(a) was wide enough to include the supply of services other than medical or health related services, and therefore wide enough to include the appointment of a person to assist the claimant in his farming activities and to include the costs of a curator bonis. The court rejected the contention that the ambit of section 17(4)(a) was limited to health services only.
To reach its conclusion, the court considered the purpose of section 17(4)(a) with reference to its predecessor, article 43(a) of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 and judgments that dealt with this previous provision. The court noted that the purpose of section 17(4)(a) of the Act was to solve the quantification problem in awards for future hospital and medical expenses. Its purpose was to do away with the risk of awarding either too little or too much for future hospital and medical expenses, which are incapable of precise advance determination.
In a subsequent full bench decision, the court described this as follows: “the furnishing of an undertaking provides for an ‘as-and-when’ payment scheme of actual expenses, removing all contingent permutations.” (K on behalf of M v RAF 2023 (3) SA 125 (GP)) para 13. Until this decision, the right to furnish an undertaking certificate was neither a right which a third-party claimant could claim nor a sanction which a court could impose on the Fund, unless the Fund had tendered this. In response to the directive by the Acting Judge President which resulted in this decision, the CEO of the RAF provided a blanket election to furnish an undertaking certificate to every claimant who is entitled to claim for future hospital and medical expenses in terms of section 17(4)(a) of the Act. The courts may therefore take judicial notice of the RAF’s blanket election and are empowered to order the furnishing of an undertaking certificate where a claimant has proven its claim for future hospital and medical expenses.
If you have been involved in a motor vehicle accident and suffered injuries, contact your attorney to discuss your eligibility for an undertaking certificate to ensure that you are, alternatively might already be, covered for any possible future hospital or medical expenses.
