This blog was co-authored by Lesego Molosiana, Candidate Attorney.

In Sibongile Ngcobo v Dr L.F. Oelofse, an interim payment application in terms of High Court Rule 34A (hereafter ‘Rule 34A’) was brought by the plaintiff seeking interim compensation for personal injury damages.

Rule34A provides that the accompanying affidavit to the application ought to:

1. Sufficiently establish the grounds on which the application is brought; and
2. Sufficiently establish the amount claimed and all documentary evidence necessary to support this claim.

In this case, the plaintiff sought a second interim payment in the amount of R650 000.00. In the main action, the plaintiff sued for damages after sustaining an injury to the spinal cord during a surgical procedure and was later diagnosed with Brown Sequard Syndrome. The defendant, a doctor, was found liable and in 2019, the plaintiff received their first interim payment of R350 000 pending proof of the total loss.

The reasons given for the application for a second interim payment were:

1. From the time that the plaintiff sustained the injuries to the date the application was brought before the courts, the plaintiff was dismissed from her place of employment due to her medical conditions then retrenched by her second employer in February 2020.
2. The plaintiff claimed that her medical aid was suspended in July 2021 and provided a list of her monthly expenses which consisted of rent, water and electricity, groceries for herself and her minor son, medical aid, other expenses which totalled to R20 632 per month.
3. The plaintiff contended that due to her financial predicament, she accumulated loans from family and friends which would be settled by the second interim payment.

A crucial point to consider in this case, prior to the issuing of a second interim payment, is how the first interim payment was used:

1. The plaintiff stated that an amount of R87 500.00 paid her legal fees but failed to account for the remaining balance of R262 500.
2. It was later discovered that while still on medical aid and employed the plaintiff squandered close to R156 537.46 of the first interim payment between October 2019 and January 2020 and later received R840 731.35 which she transferred into multiple accounts, and which was not disclosed to the Court.
3. From October 2020 to September 2021 when the plaintiff was unemployed, she spent R450 000 on items which were not related to medical expenses.
The defendant argued that the plaintiff failed to attach evidence of the loans referred to nor the outstanding balances. Further, at no point did the plaintiff claim to show that she made efforts to revive her medical aid and settle the debts she had incurred and averred that she was financially irresponsible.
The defendant contented that on this basis they were uncertain that any second interim payment would be used to satisfy her immediate medical and other needs and could lead to further delays in the litigation.

The court found the application by the plaintiff was “woefully inadequate as there was a pervasive lack of documentary evidence”.

Further the court stated that:

1. The plaintiff failed to establish good cause and prove her immediate needs, but her spendthrift manners created the perception that should the order be granted, the defendant would be prejudiced in the event of an overpayment.
2. Legal costs and other expenses did not form part of such an application.
3. The plaintiff was financially irresponsible.

The court however granted the application on the basis that the defendant would make monthly payments of R7 632.00 towards the applicant’s medical aid for the earlier occurring of the trial date or a period of 36 months and not a lump sum interim payment without financial oversight.

The judgment failed to consider the plaintiff’s lifestyle and other needs which were funded by their earnings prior to the injury. It does however emphasise the need too provide substantial documentary proof to demonstrate the immediate needs of the plaintiff and justify the interim amount claimed.