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2024
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[2024] ZAECMKHC 40
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Mlamli v Johnstone NO and Another (955/2024) [2024] ZAECMKHC 40; 2024 (4) SA 611 (ECMk) (9 April 2024)
FLYNOTES:
RAF – Claim process –
New
RAF 1 Form and Board Notice
–
Fund
refusing to accept delivery of lodgement documents – Fund
contending that documents not meeting substantial compliance
requirements – Urgent application due to risk of
prescription – Board Notice of 2022 and new RAF 1 form set
aside previously by full bench – Fund has obligation to
acknowledge in writing the receipt of delivered lodgement
documents – Fund has no authority for refusing to accept the
documents – Fund acted unlawfully in its refusal –
Ordered to accept delivery of applicant’s documents
embodying his claim –
Road
Accident Fund Act 56 of 1996
,
s
24(1)(b).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Reportable
Case
no: 955/2024
In
the matter between:
NDLUMBINI
MLAMLI
APPLICANT
and
LANCE
JOHNSTONE, REGIONAL MANAGER,
ROAD
ACCIDENT
FUND
FIRST RESPONDENT
ROAD
ACCIDENT FUND
SECOND RESPONDENT
Date
heard: 12 March 2024
Date
delivered: 09 April 2024
JUDGMENT
Notyesi
AJ
Introduction
[1]
The
applicant, alleging that he was injured in a motor vehicle accident
on 1 August 2022, and relying upon the provisions of
Rule 6(12)(
a
)
and (
b
)
[1]
,
approached this Court seeking reliefs against the Road Accident Fund,
in the following terms:
‘
(a) Dispensing
with the provisions of the rules relating to time, forms and manner
of service referred to
in the Uniform Rules and dealing with the
matter as one of urgency in terms of Rule 6(12).
(b) The
decision and conduct of the Respondents in refusing to accept
delivery of lodgement documents under
the purported reason of
non-compliance with Board Notice 271 of 2022, Government Gazette No.
46322, dated 6
th
May 2022 or any other basis not
contemplated under the
Road Accident Fund Act 56 of 1996
, be and is
hereby declared unlawful.
(c) The
Respondents are to accept delivery by hand/email/registered post,
within 5 (five) days of the granting
of this order, the Applicant’s
documents embodying his claim for compensation under the Road
Accident Fund Act 56 of 1996
(the RAF Act).
(d) The
Respondents are to cease with immediate effect the conduct of
refusing to receive lodgement documents
for purposes of claiming with
the RAF under the auspices of non-compliance with Board Notice 271 of
2022, Government Gazette No
46322, dated 6
th
May 2022,
“The Terms and Conditions Upon Which Claims For Compensation
Shall Be Administered” or the RAF Act.
(e) The
Respondents are to accept, administer and register new claims lodged
or to be lodged in its offices
without refusing to accept the
lodgement documents under the auspices of a purported attempt of
enforcement and application of
the terms and conditions referred to
in Paragraph (d) above.
(f) The
Respondents are entitled in terms of the act to assess the validity
of the claims and compliance
with the legislation after it has
received and registered the lodged claim.
(g) The
Respondents communicate this Order to the Managers in Regional
Offices within 5 (five) days of the
Order including informing all
other interested parties.
(h) The
Respondent pay costs of this application.’
[2]
The
Road Accident Fund is a statutory body established in terms of the
Road Accident Fund Act
[2
]
and is
obliged
[3]
, to compensate any
person (the third party) for any loss or damage which the third party
has suffered as a result of any bodily
injury to himself or herself
or the death of or any bodily injury to any other person, caused by
or arising from the driving of
a motor vehicle by any person at any
place within the Republic.
[3] The
powers and functions of the Road Accident Fund include: (a) the
stipulation of the terms and conditions
upon which claims for the
compensation contemplated in
section 3
, shall be administered; (b)
the investigation and settling, subject to the Act, or claims arising
from loss or damages caused by
the driving of a motor vehicle whether
or not the identity of the owner or the driver thereof, or the
identity of both the owner
and driver thereof, has been established.
[4] The
applicant contended before this Court that he had delivered lodgement
documents in respect of the
accident that he was involved in, through
his attorney, to the Road Accident Fund. The Road Accident Fund
refused to accept the
delivered lodgement documents. It was
submitted, on behalf of the applicant, that the refusal to accept the
lodgement documents
was unlawful and that the Road Accident Fund was
not legally authorised to refuse the delivery of lodgement documents.
[5] On
the other hand, the acting Regional Manager of the Road Accident
Fund, Mr Lance Johnstone, contended
that first, the application was
not urgent and second, that the conduct of the Road Accident Fund was
not unlawful. In advancing
his contention, Mr Lance Johnstone
submitted that the Road Accident Fund had issued a board notice (BN)
271 of 2022 and that the
board notice set out a list of documents
which must be included and form part of the claim supporting
documents when lodging a
claim with the Fund.
[6] Subsequent
to the hearing the application, this Court granted the relief in
terms of the notice of motion
without providing reasons, although
indicating to the parties that they may seek reasons for the order.
On 13 March 2024, the respondents
filed a notice requesting reasons
for the order. These are the reasons for the order.
The
parties
[7] The
applicant shall simply be referred to as “the applicant”.
[8] The
first respondent shall be referred to as “Mr Johnstone”.
[9] The
second respondent shall be referred to as “the Fund”.
The
issues
[10] The
central issues were whether or not-
(a) the
application was urgent;
(b) the
Fund was empowered to refuse to accept or receive delivery of
lodgement documents; and
(c) costs.
Background
[11] On
1 August 2022, the applicant was involved in a motor vehicle accident
as a pedestrian. The accident
occurred near Cape and Mission Roads,
Gqeberha. The applicant appointed S Booi & Sons Attorneys to be
his legal representatives.
In this regard, he signed the special
power of attorney in favour of the appointed attorneys.
[12] The
attorneys commenced with the investigations of the applicant’s
claim. They obtained all the
necessary information that is required
for lodgement of the applicant’s claim.
Nontyatyambo
Sontshantsha
(Ms
Sontshantsha
)
was assigned with the handling of the file. Ms
Sontshantsha
has deposed to the founding affidavit. She had alleged that once she
obtained all the relevant information and prepared all the
documents,
she went to deliver the applicant’s claim at the East London
branch of the Fund.
[13] According
to Ms
Sontshantsha
,
the date of the delivery of the claim is the essential first step for
the enforcement of any rights for the applicant in terms
of the Act.
The delivery of lodgement documents is crucial because it determines
whether or not the claim, in the first instance,
has been submitted
timeously. In the founding affidavit, Ms
Sontshantsha
has attached the RAF 1 claim form and lodgement letter, which she had
delivered in the East London branch of the Fund.
[14] The
attempt to deliver the lodgement documents was on 10 January 2024. On
14 February 2024, the Fund
refused to accept the delivery of the
lodgement documents. The reasons for rejecting to accept the
delivered lodgement documents
was that there were certain outstanding
information and documents. In this regard, the Fund responded with a
letter dated 14 February
2024. According to the letter, the Fund
objected to the validity of the claim in terms of section 24(5) of
the Act for the reasons
that the documents submitted did not meet the
requirements for substantial compliance and validity of the claim.
[15] Subsequent
to the receipt of the letter of 14 February 2024 from the Fund, the
applicant’s attorney
amended the bundle of documents and
delivered the amended lodgement documents on 28 February 2024. She
left the documents at the
East London branch of the Fund in order for
the Fund to acknowledge receipt. She was to return on a later date to
uplift the acknowledged
receipt of the amended lodgement documents.
[16] On
5 March 2024, she returned to the offices of the Fund in East London
in order to collect the documents.
On this day, the Fund refused to
accept delivery of the lodgement documents. There were no reasons
given to Ms Sontshantsha for
the refusal to accept the lodgement
documents. The Fund did not provide any correspondence in which its
decision was communicated
in respect of the second refusal to accept
the lodgement documents. In view of the absence of the reasons for
the refusal to accept
the lodgement documents and on consideration of
pending prescription of the claim, Ms
Sontshantsha
obtained instructions to launch the urgent application in order to
compel the acceptance of the lodgement documents by the Fund.
[17] The
applicant had submitted that the application is urgent for the reason
that the claim is vulnerable
to the risk of prescription. The
applicant further complains that the conduct of the Fund amounts to
infringement of his rights
to lodge a claim against the Fund. The
applicant alleges that he had no effective recourse to ensure that
his claim is registered
and administered by the Fund. He contended
that he cannot wait for redress in due course for the reason that the
claim will prescribe
before such hearing in due course.
[18] In
opposing the application, the respondents had filed the answering
affidavit of Mr Lance Johnstone.
The affidavit is titled “founding
affidavit”. I do accept that it is an answering affidavit. In
the affidavit, Mr Johnstone
disputes that the matter is urgent. He
contended that the urgency suggested by the applicant is
self-created. Mr Johnstone contended
that the power of attorney was
signed by the applicant in August 2022. According to him, the
attorneys should have acted on the
instructions timeously. He alleged
that the attorneys had delayed for a period of more than a year
before they lodged the claim.
[19] Mr
Johnstone had also contended, in the answering affidavit, that the
applicant has an opportunity in
terms of the board notice 2022 or the
new RAF 1 form, to deliver a further lodgement document within a
period of 3 months.
[20] Mr
Johnstone further alleged that the Fund has no money to pay all
claimants and therefore, it had to
implement certain mechanisms so
that it can be able to best meet its social and legislative purposes.
He also alleged that the
Fund has limited resources and large
liabilities and for that reason, the Fund must balance the rights and
interests of all parties.
He contends, in this regard, that such a
balancing act is a delicate process.
[21] Mr
Johnstone alleged that in order to achieve the required results, the
Fund requires more information
to conduct its own assiduousness at
the inception of a claim that is lodged. It was on the basis of that
obligation on the part
of the Fund that board notice 2022 and the new
RAF1 form were introduced. These are all measures which are aimed at
assisting the
board to accomplish its own conscientiousness.
[22] Mr
Johnstone disavowed the suggestion by the applicant and other Road
Accident Fund claimants that the
Fund is hellbent in creating hurdles
which are intended to eliminate claimants’ claims. According to
him, the sole intention
of the Fund is to administer its finances so
that it could serve as a social security to thousands of claimants
for as long as
it is possible.
[23] Mr
Johnstone contended that the Fund had rejected the applicant’s
lodgement documents based on
the compliance with board notice 2022
and the new RAF 1 form. According to him, the applicant has been
advised of the information
that is required by the Fund. He suggested
that the applicant is aware of the outstanding information that is
required in order
to submit a compliant lodgement document. He
also contended that the applicant has failed to provide a reasonable
explanation
on why he cannot comply with the board notice 2022 and
the new RAF 1 form.
Urgency
[24] I
briefly address the issue of urgency. Mr
Zilwa
,
Counsel for the applicant, submitted that the application is urgent.
I agree. The accident was on 1 August 2022. The attorneys
for the
applicant had to investigate the claim and collect the required
information in order to complete the RAF 1 form. The claim
cannot be
registered and administered without the submission of the lodgement
documents. In this case, the applicant submitted
lodgement documents
twice. The first lodgement was on 10 January 2024 and the second
lodgement was on 28 February 2024. The Fund
had given reasons on the
first rejection of the lodgement documents in the letter of 14
February 2024. In response, the applicant
amended the initial
documents to comply with the Fund’s objections. Regarding the
second lodgement, there was no explanation
on why the lodgement was
not accepted and receipt acknowledged. The RAF claims are subject to
strict statutory periods of prescription.
The applicant launched the
urgent application because the claim was prescribing. I accept that
such a risk of prescription was
enough to support the urgency of the
application.
[25]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Limited and Others
[4]
it
was held –
[6]
‘The import thereof is that the procedure set out in Rule 6(12)
is not there for the taking. An applicant has to set forth
explicitly
the circumstances which he avers render the matter urgent. More
importantly, the applicant must state the reasons why
he claims that
he cannot be afforded substantial readdress at a hearing in due
course. The question of whether a matter is sufficiently
urgent to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial readdress in the
application in due
course. The rules allow the court to come to the assistance of a
litigant because of the latter, were to wait
for the normal course
laid down by the rules, it will not obtain substantial readdress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent to irreparable harm that
is required
before the granting of an interim relief. It is something less. He
may still obtain redress in an application in due
course, but it may
not be substantial. Whether an applicant will not be able to obtain
substantial redress in an application in
due course will be
determined by the facts of each case. An applicant must make out his
case in this regard.’
[26] I
have no doubt in my mind that the applicant had no form of
substantial redress in due course. Once
the claim is prescribed, the
applicant will suffer perpetual prejudice. I was also aware that
there might be many other similar
cases where the Fund is refusing to
accept lodgement documents in circumstances where prescription is
imminently threatening. I
have also considered that the courts have
made several pronouncements regarding the new RAF 1 form and various
board notices, where
the conduct was found to be unlawful. In my
view, the Fund is a national statutory body. In such circumstances,
it is not necessary
that each branch of the Fund would adopt its own
procedure when there are court decisions that deal with such
circumstances. Accordingly,
I concluded that the matter was urgent to
avoid the prescription of the applicant’s claim.
Whether
the Fund was empowered to refuse to accept or receive delivery of
lodgement documents
[27] Section
4(1)(
b
)
empowers the Fund to investigate and settle, subject to the Act,
claims arising from loss or damage caused by the driving of a
motor
vehicle whether or not the identity of the owner or the driver
thereof, or the identity of both the owner or the driver thereof,
has
been established. Section 4(1)(
a
)
provides that the powers and functions of the Fund include the
stipulation of the terms and conditions upon which claims for
compensation contemplated in section 3 shall be administered.
[28]
Section 24 deals with the requirements relating to the submission of
a claim.
Section 24 provides –
‘
(1)
A claim for compensation and accompanying medical report under
section 17(1) shall –
(a)
be set out in the prescribed form, which shall be completed in all
its particulars;
(b)
be sent by registered post or delivered by hand to the Fund at its
principal, branch or regional office, and the Fund or such
agent
shall at the time of delivery by hand acknowledge receipt thereof and
the date of such receipt in writing;
(2)
(a) The
medical report shall be completed on the prescribed form by the
medical practitioner who treated
the deceased or injured person for
the bodily injuries sustained in the accident from which the claim
arises, or by the superintendent
(or his or her representative) of
the hospital where the deceased or injured person was treated for
such bodily injuries: Provided
that, if the medical practitioner or
superintendent (or his or her representative) concerned fails to
complete the medical report
on request within a reasonable time and
it appears that as a result of the passage of time the claim
concerned may become prescribed,
the medical report may be completed
by another medical practitioner who has fully satisfied himself or
herself regarding the cause
of the death or the nature and treatment
of the bodily injuries in respect of which the claim is made.
(b) Where
a person is killed outright in a motor vehicle accident the
completion of the medical report shall
not be a requirement, but in
such a case the form referred to in subsection (1)(a) shall be
accompanied by documentary proof, such
as a copy of the relevant
inquest record or, in the case of prosecution of the person who
allegedly caused the deceased’s
death, a copy of the relevant
charge sheet from which it can clearly be determined that such
person’s death resulted from
the accident to which the claim
relates.
(3)
A claim by a supplier for the payment of expenses in terms of section
17(5) shall be in the prescribed form, and the provisions
of this
section shall apply mutatis mutandis in respect of the completion of
such form.
(4)
(a) Any
form referred to in this section which is not completed in all its
particulars shall not be acceptable
as a claim under this Act.
(b) A
clear reply shall be given to each question contained in the form
referred to in subsection (1), and
if a question is not applicable,
the words “not applicable” shall be inserted.
(c) A
form on which ticks, dashes, deletions and alterations have been made
that are not confirmed by a signature
shall not be regarded as
properly completed.
(d) Precise
details shall be given in respect of each item under the heading
“Compensation claimed”
and shall, where applicable, be
accompanied by supporting vouchers.
(5)
If the Fund or the agent does not, within 60 days from the date on
which a claim was sent by registered post or delivered by
hand to the
Fund or such agent as contemplated in subsection (1), object to the
validity thereof, the claim shall be deemed to
be valid in law in all
respects.’
[29]
In
Mautla
and Others v the Road Accident Fund
[5]
it
was held –
‘
The
date of delivery of the claim is the essential first step for the
enforcement of any rights in terms of the Act. This first
step is
crucial for claimants because it determines whether or not their
claim in the first instance has been submitted timeously.
There is no
provision in the Act which permits the RAF to refuse to accept the
delivery of a claim or to refuse to acknowledge
receipt of that
claim. Had the legislature contemplated such a situation, it would
have provided for it specifically.’
[30]
Two
judgments by the Full Court of Gauteng Division, Pretoria, were
delivered on 20 March 2024 and 26 March 2024 respectively. These
judgments are
Legal
Practitioners Indemnity Insurance Fund NPC & Others v The Road
Accident Fund and Others
[6]
and
Mudawo
and Others v Minister of Transport and Another
[7]
.
The
judgments were delivered shortly after I had issued the order on 12
March 2024. I have considered the two judgments in preparation
of
these reasons, for the reason that they have bearing. The
Mautla
judgment
had also dealt with the board notice and the submission of lodgement
documents.
[31]
In
Pithey
v Road Accident Fund
[8]
it
was held –
‘
[18] I
pause to say something about the primary purpose and objectives of
the Act. It has long been recognised
in judgments of this and other
courts that the Act and its predecessors represent “social
legislation aimed at the widest
possible protection and compensation
against lost and damages for the negligent driving of a motor
vehicle”. Accordingly,
in interpreting the provisions of the
Act, courts are enjoined to bear this factor uppermost in their minds
and to give effect
to the laudable objectives of the Act. But, as the
full court correctly pointed out, the Fund, which relies entirely on
the fiscus
for its funding, should be protected against illegitimate
and fraudulent claims.
[19] It
has been held in a long line of cases that the requirement relating
to the submission of the claim
form is peremptory and that the
prescribed requirements concerning the completeness of the form are
directory, meaning that substantial
compliance with such requirements
suffices. As to the latter requirement this court in
SA Eagle
Insurance Co Ltd v Pretorius
reiterated that the test for
substantial compliance is an objective one.’
[32] I
now turn to consider the submissions of the parties.
Evaluation
and analysis
[33] The
applicant had twice hand delivered the lodgement documents. On the
first occasion, the Fund responded
and requested further information.
The applicant furnished the required further information on 28
February 2024. In respect of
the latter delivery of lodgement
documents, there was no response from the Fund. Mr
Zilwa
,
counsel for the applicant, had correctly submitted that in terms of
section 24(1)(b), the Fund has an obligation to acknowledge,
in
writing, the receipt of the delivered lodgement documents. In this
case, there was simply no response from the Fund. The counsel
for the
Fund, correctly conceded that the Fund had an obligation to
acknowledge receipt of the lodgement documents delivered on
28
February 2024. In my view, the failure to acknowledge receipt of the
documents was the breach of section 24(1)(b).
[34] Mr
Zilwa
had contended that the Fund has no legislative authority to refuse to
accept delivery or to acknowledge receipt of a claim. I agree
with
this submission. First, the date of delivery of the claim is the
essential first step for the enforcement of any rights of
the
claimant in terms of the Act. Second, the lodgement is crucial for
the claimant because it determines whether or not the claim
in the
first instance has been submitted timeously. To refuse receipt of the
claim, even if, it would be rejected in terms of the
Act, prejudices
the claimant as he would be exposed to the risk of prescription for
the claim. In my view, the Fund has no authority
for refusing to
accept the lodgement of documents.
[35]
The
applicant has attached the RAF 1 form that was submitted to the East
London branch of the Fund. The form is substantially compliant
and
would enable the Fund to investigate the claim. In
Pithey
v Road Accident Fund
[9]
it
was said –
[19]
‘It has been held in a long line of cases that the requirement
relating to the submission of the claim form is peremptory
and that
the prescribed requirements concerning the completeness of the form
are directory, meaning that substantial compliance
with such
requirements suffices. As to the latter requirement this court in
SA
Eagle Insurance Co Ltd v Pretorius
reiterated that the test for
substantial compliance is an objective one.’
[36] To
summarise on this point, the contention of the Fund cannot be upheld
in the circumstances of the
present case, for to do so, would be to:
(a) elevate form above substance; (b) be rigidly technical against a
just result; and
(c) to subvert the objects of the Act.
[37]
I
have read the judgment in
Legal
Practitioners Indemnity Insurance Fund NPC and Others v Road Accident
Fund and Others
[10]
.
In
this matter, the court has set aside the new RAF 1 form and the board
notice 2022. The court had determined that on a balance,
the Fund
should revert to the RAF 1 claim form that came into operation on 1
August 2008 and form part of the Regulations published
by the
Minister 2008 (“the 2008 RAF 1 Form”). The court had
found that the RAF 1 form 2008 was a simpler form; it included
the
principle of substantial compliance, and it worked without
difficulties for many years. I agree with these observations of
the
court.
[38]
In
Road
Accident Fund v Busuku
[11]
it
was held that, the “… primary concern of the Act is to
give the “greatest possible protection to persons who
have
suffered loss through negligence or through unlawful acts on the part
of the driver of a motor vehicle. For this reason, the
provisions of
the Act must be interpreted as extensively as possible in favour of
third parties to afford them the widest possible
protection”.
[39] To
conclude, the Fund acted unlawfully when it refused to accept the
lodgement documents delivered by
the applicant’s attorney in
the East London branch and accordingly, the applicant is entitled to
the declaratory that is
sought. In my view, the applicant, no doubt,
satisfied the requirements for the grant of a declaratory. First, the
applicant was
involved in a motor vehicle accident, and he had sought
to lodge a claim against the Fund. Second; the Fund refused to accept
the
delivery of the lodgement documents, and such refusal remained
continuous until the launch of these proceedings. Third; the
applicant
was not given an acknowledgement of the lodged documents
and instead, the documents were simply returned with no
acknowledgement
nor date stamp for the receipt.
[40] In
the founding affidavit, the applicant has indicated that there are
various persons whose lodgement
documents were simply refused without
being acknowledged. The applicant gave substantial names of such
claimants, and it was on
that basis that the order was issued in
broad terms to include all persons who have submitted claims in
circumstances where the
Fund had refused to receive those lodgement
documents.
[41]
Whilst
it was necessary to prepare these reasons, in my view, the Fund, as a
national institution, is bound by the decision of the
Full Bench in
the matter of
Legal
Practitioners Indemnity Insurance Fund NPC and Others v The Road
Accident Fund and Others
[12]
.
The
effect of this judgment is that the board notice 271 of 2022
published in the Government Gazette No 46322 of 6 May 2022 (“the
Board Notice”), was declared unlawful and set aside. Secondly,
the form RAF 1, prescribed by the Minister of Transport (“the
Minister”) in terms of s 26 of the Road Accident Fund Act 56 of
1996 (“the RAF Act”), and published in Board
Notice 302
of 2022 in Government Gazette no 46653 of 4 July 2022 (“the RAF
1 Form”) was declared unlawful and set aside.
[42] The
court also decided that from 6 May 2022, the prescribed form
contemplated in s24(1)(a) of the RAF
Act shall be deemed to be the
RAF 1 third party claim form (“the 2008 RAF 1 Form”),
forming part of the regulations
published by the Minister on 7 July
2008 in Government Gazette No 31249, until such time as the Minister
prescribes an amendment
to the 2008 RAF 1 Form in terms of s 26 of
the RAF Act.
[43] In
all the circumstances set out above, the Fund was obliged to receive
the lodgement documents and
it did not do so.
Costs
[44] The
general rule is that, a successful party is entitled to costs. I
found no reasons to depart from
the general rule that costs should
follow the event. I, accordingly, granted the costs in favour of the
successful applicant.
Conclusion
[45] For
the reasons set out above, the application was successful and I,
accordingly, granted the order
sought by the applicant.
Order
[46] On
the basis of the above reasons, I granted the following order –
(1) Dispensing
with the provisions of the rules relating to time, forms and manner
of service referred to
in the Uniform Rules and dealing with the
matter as one of urgency in terms of Rule 6(12).
(2) The
decision and conduct of the Respondents in refusing to accept
delivery of lodgement documents under
the purported reason of
non-compliance with Board Notice 271 of 2022, Government Gazette No.
46322, dated 6
th
May 2022 or any other basis not
contemplated under the
Road Accident Fund Act 56 of 1996
, be and is
hereby declared unlawful.
(3) The
Respondents are to accept delivery by hand/email/registered post,
within 5 (five) days of the granting
of this order, the Applicant’s
documents embodying his claim for compensation under the Road
Accident Fund Act 56 of 1996
(the RAF Act).
(4) The
Respondents are to cease with immediate effect the conduct of
refusing to receive lodgement documents
for purposes of claiming with
the RAF under the auspices of non-compliance with Board Notice 271 of
2022, Government Gazette No
46322, dated 6
th
May 2022,
“The Terms and Conditions Upon Which Claims For Compensation
Shall Be Administered” or the RAF Act.
(5) The
Respondents are to accept, administer and register new claims lodged
or to be lodged in its offices
without refusing to accept the
lodgement documents under the auspices of a purported attempt of
enforcement and application of
the terms and conditions referred to
in Paragraph (4) above.
(6) The
Respondents are entitled in terms of the act to assess the validity
of the claims and compliance
with the legislation after it has
received and registered the lodged claim.
(7) The
Respondents communicate this Order to the Managers in Regional
Offices within 5 (five) days of the
Order including informing all
other interested parties.
(8) The
Respondent pay costs of this application.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION
Counsel
for the Applicant
:
Adv N Zilwa
Attorneys
for the Applicant
:
S Booi &
Sons
East London
Attorneys
for the Respondents :
Ms V Futshane
State
Attorney
Gqeberha
[1]
Uniform Rule 6(12) reads: (
a
)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose
of
such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable
be
in terms of these rules) as to it seems meet. (
b
)
In every affidavit or petition filed in support of any application
under paragraph (
a
)
of this subrule, the applicant shall set forth explicitly the
circumstances which he avers render the matter urgent and the
reasons why he claims that he could not be afforded substantial
redress at a hearing in due course.
[2]
Road
Accident Fund Act, 1996
[56 of 1996] – G17532 as amended
[3]
Section
17(1)
of the
Road Accident Fund Act provides
: ‘The Fund or an
agent shall – (a) subject to this Act, in the case of a claim
for compensation under this section
arising from the driving of a
motor vehicle where the identity of the owner or the driver thereof
has been established; (b) subject
to any regulation made under
section 26, in the case of a claim for compensation under this
section arising from the driving
of a motor vehicle where the
identity of neither the owner not the driver thereof has been
established, be obliged to compensate
any person (the third party)
for any loss or damage which the third party has suffered as a
result of any bodily injury to himself
or herself or the death of or
any bodily injury to any other person, caused by or arising from the
driving of a motor vehicle
by any person at any place within the
Republic, if the injury or death is due to the negligence or other
wrongful act of the
driver or of the owner of the motor vehicle or
of his or her employee in the performance of the employee’s
duties as employee.’
[4]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Limited and Others
[2011]
ZAGP JHC 196 at para 6 - 7
[5]
Mautla
and Others v the Road Accident Fund
(29459/2021)
[2023] ZAGPPHC 1843 at para 64
[6]
The
Legal Practitioners Indemnity Insurance Fund NPC and Others v The
Road Accident Fund and Others,
Gauteng
Division, Pretoria, Case No: 046038/2022
[7]
Mudawo
and Others v Minister of Transport and Another
,
Gauteng Division, Pretoria, Case No: 011795/2022
[8]
Pithey
v Road Accident Fund
(319/13)
[2014] ZASCA 55
(16 April
2014), 2014 (4) SA 112
SCA
[9]
Pithey
v Road Accident Fund
,
supra at para [19]
[10]
Legal
Practitioners Indemnity Insurance Fund NPC and Others v Road
Accident Fund and Others
supra
[11]
Road
Accident Fund v Busuku
,
2023 (4) SA 507
(SCA) at par [6]
[12]
Legal
Practitioners Insurance Indemnity Fund NPC and Others v Road
Accident Fund and Others
,
supra