IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 23481/2016
In the matter between:
MARK JONATHAN FOOKWE Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Coram: Justice J Cloete
Heard: 21 and 22 February 2024, 18 March 2024
Delivered electronically: 29 April 2024
JUDGMENT
CLOETE J:
Introduction
[1] On 7 July 2015 the plaintiff, a self -employed businessman, sustained serious injuries
in a motor collision which resulted, inter alia, in him permanently losing most of the
use of his right arm. Summons was issued against the defendant (“RAF”) on
2 December 2016, with the RAF delivering its plea on 17 February 2017. After case
management the matter was certified trial ready on 14 November 2022 in respect of
both liability and quantum (including general damages). Thereafter a trial date was
allocated, as a consequence of which the matter came before me on 21 February
2024.
2
[2] In a joint Practice Note filed on 9 February 2024 it was recorded that: (a) liability
remained in dispute; (b) the RAF accepted the plaintiff’s injuries qualified as serious
and he was thus entitled to general damages (if liability was proven); and (c) both
parties were ready to proceed to trial. At the commencement of the hearing counsel
for the plaintiff placed on record that the RAF had now conceded liability (i.e. just
over 7 years after the action was instituted) and that all head of damages had been
agreed save for the plaintiff’s claim in respect of past medical and hospital expenses.
[3] He also recorded the parties’ agreement that an order could be granted (once its
terms were finalised) in relation to the settled heads of damages. The RAF
subsequently did an about turn and refused to permit any such order to be granted.
During closing argument counsel for the plaintiff thus handed up his draft order.
[4] It is regrettably necessary to state that, despite confirming on 9 February 2024 that
the RAF was also ready to proceed to trial, on the morning of the hearing its legal
representative announced from the Bar that his client “required” a postponement
since “an appeal was pending” in the matter of Van Tonder v Road Accident Fund1 in
which I handed down judgment on 1 December 2023 rejecting the RAF’s argument
in relation to past hospital and medical expenses. There was no appeal pending at
that stage, but only an application for leave to appeal by the RAF set down for
hearing on 29 February 2024 (which I subsequently dismissed on 1 March 2024).
The postponement “required” was thus refused. In addition, the RAF’s legal
representative elected, without prior notification or indeed any explanation, to absent
himself on the agreed date upon which argument was scheduled to be heard. The
court thus only had the benefit of the plaintiff’s submissions.
1 [2023] ZAWCHC 305.
3
[5] During the trial the plaintiff testified and led the unchallenged evidence of Ms Thea
Hoosain, a team leader in the Third Party Recoveries Department of Discovery
Health, the medical aid scheme of which the plaintiff has at all material times been a
member. The RAF led the evidence of Mr Nizaamodien Abdool, who in his testimony
explained that he is employed by the RAF as a Senior Medical Bill Reviewer for the
entire Western Cape (apparently he is solely responsible for that area). He reviews
all claims for past medical and hospital expenses as well as medical supplier claims.
[6] Mr Abdool was of considerable assistance and, with consent of the RAF’s legal
representative, made himself available during an adjournment to meet with the
plaintiff’s legal team to narrow down the items claimed by the plaintiff to those which
were actually disputed by the RAF. Ultimately, based on the evidence of the three
witnesses, what was agreed during the meeting, and certain concession s sensibly
made on the plaintiff’s behalf, the following was undisputed.
[7] The plaintiff’s total claim for past hospital and medical expenses amounts to
R1 035 848.53 of which: (a) Discovery Health settled R301 071.79 but the RAF
disputes liability to pay; (b) the RAF has rejected a further total of R17 210.98; and
(c) because of a certain “internal directive” issued by the RAF, its bill reviewers have
to reject claims which do not meet internal code requirements, in this instance
amounting to another total of R161 828.17.
Amounts paid by Discovery Health
[8] The RAF did not plead any defence which supports, or even alludes to, the reasons
for disputing liability in respect of the Discovery Health portion or why it is compelled
to reject the “code” portion of the plaintiff’s claim. As far as the Discovery Health
portion is concerned, given the election of the RAF’s legal representative to absent
himself from closing argument, the best I can do is accept that the argument he
4
would have advanced on its behalf was identical to that raised by the RAF in Van
Tonder. (It would otherwise make no sense for the RAF to have “required” a
postponement pending the “appeal” in Van Tonder). As far as the “code” portion is
concerned, I at least have the evidence of Mr Abdool.
[9] In Van Tonder the RAF had contended that due to an internal “policy” or instruction,
all claims for past medical expenses paid by a medical aid scheme are excluded by
virtue of s 19(d)(i) of the Road Accident Fund (“the RAF”) Act 2 and/or regulations 7
and 8 of the Medical Schemes Act. 3 I rejected that argument. For convenience I
quote the relevant paragraphs of Van Tonder:
‘[8] Section 19 reads in relevant part as follows:
“19. Liability excluded in certain cases. —The Fund or an agent shall not be
obliged to compensate any person in terms of section 17 for any loss or damage—…
(c) if the claim concerned has not been instituted and prosecuted by the third party, or
on behalf of the third party by—
(i) any person entitled to practise as an attorney within the Republic; or
(ii) any person who is in the service, or who is a representative of the state or
government or a provincial, territorial or local authority; or
(d) where the third party has entered into an agreement with any person other than the
one referred to in paragraph (c) (i) or (ii) in accordance with which the third party has
undertaken to pay such person after settlement of the claim—
(i) a portion of the compensation in respect of the claim;…”
[9] Regulation 7 of the Medical Schemes Act defines “prescribed minimum benefits ” as
including “any emergency medical condition ”. Regulation 8(1), in referring to
“prescribed minimum benefits” provides “[s]ubject to the provisions of this regulation,
any benefit option that is offered by a medical scheme must pay in full, without co -
payment or the use of deductibles, the diagnosis, treatment and care costs of the
prescribed minimum benefit conditions”.
2 No 56 of 1996.
3 No 131 of 1998.
5
[10] The RAF’s argument in relation to s 19(d)(i) is that because the plaintiffs, as
members of their medical aid schemes, agreed to reimburse such scheme any
amounts paid over by the scheme to service providers, this amounts to an
agreement falling within the exclusionary provision of that subsection. In Road
Accident Fund v Abdool-Carrim and Others4 at issue was the proper interpretation of
s 17(5) read with s 19(d) of the RAF Act. The court summarised the crux of the
appeal before it as follows:
“[3] Where a third party is entitled to compensation and has incurred costs in respect
of medical services which are recoverable from the Fund, s 17(5) permits ‘suppliers’
who have rendered such services the right to claim their costs directly from the Fund
without having to claim from the third party. It also provides, and this is the
contentious part, that ‘such claim shall be subject, mutatis mutandis, to the
provisions applicable to the claim of the third party concerned… ’. Section 19(d)
renders a third party claim unenforceable against the Fund if he or she has entered
into an agreement with someone other than an attorney or someone who falls within
a class of persons referred to in s 19(c)(ii) in accordance with which he or she has
undertaken to pay the person for their services after settlement of the claim. The
narrow question in this appeal is whether the phrase ‘subject, mutatis mutandis, to’ in
s 17(5) renders s 19(d) applicable not only to third party claims but also to those of
suppliers in the sense that should a supplier enter into such an agreement the
supplier’s claim against the Fund becomes unenforceable…”
[11] The court found as follows:
“[11] The phrase ‘subject, mutatis mutandis, to ’ means literally ‘subject, with the
necessary changes, to ’. Any alterations must in their context be ‘necessary’. By
making the supplier’s claim ‘subject, mutatis mutandis, to ’ the provisions applicable
to that of the third party, the legislature, in my view, intended to make the supplier’s
right to claim from the Fund conditional upon the validity and enforceability of the
third party’s claim and not to render the supplier’s claim unenforceable against the
Fund by reason of an agreement with a person other than an attorney to pay such
person, after settlement of the claim, a portion of the compensation in respect of the
claim.
[12] Support for the above interpretation is to be found in the main purpose of the
Act referred to earlier and also to the accessory nature of the supplier’s claim. In my
view, the Fund’s interpretation of the effect of s 17(5) is incorrect. It is not necessary
4 2008 (3) SA 579 (SCA).
6
to substitute ‘supplier’ for ‘third party’ in s 19(d) to give efficacy to the subsection. On
the contrary the substitution places it at odds with the Act’s purpose, and from the
Fund’s perspective, achieves nothing. For if a third party’s claim is valid and
enforceable and the supplier’s is not, the Fund would still be liable to compensate
the third party who in turn remains contractually liable to the supplier. The
consequence is that a third party may be faced with a claim with a supplier without
having been paid and would be denied the benefit of s 17(5) without any fault on his
or her part. This result could hardly have been what the draftsman intended.
Moreover it is illogical for the third party claim to be valid and enforceable but the
supplier’s accessory claim not (except where the supplier has not complied with the
prescribed formalities).
[13] It is understandable that the legislature would seek to protect third parties,
many of whom are indigent, from entering into champertous agreements, which is
probably what s 19(d) intends to achieve. But there is no apparent reason to restrict
the contractual freedom of suppliers, many of whom are professional people,
institutions or companies from contracting with whoever they choose to process their
claims. They should be capable of looking after themselves.’
(my emphasis)
[12] By parity of reasoning this puts paid to the RAF’s s 19(d)(i) argument.
The RAF’s other contention, placing reliance on the regulations quoted above, is that
because a medical aid scheme is bound to pay certain minimum benefits without any
deduction (one of which is treatment for an emergency medical condition) this
precludes the scheme from relying on the doctrine of subrogation; and accordingly
since the scheme cannot claim repayment from its member by virtue of subrogation
that member, if he or she is a third party claimant against the RAF, cannot claim
against the RAF for past medical expenses.
[13] In Rayi NO v Road Accident Fund 5 the court dealt with the question
whether the RAF was liable to compensate the plaintiff for past hospital and medical
expenses in light of the fact they had already been paid by Bonitas medical aid
scheme. Zondi J (as he then was) found as follows:
5 [2010] ZAWCHC 30 (22 February 2010).
7
‘[12] It is clear to me that a procedural remedy which is available to the supplier of
goods or services in terms of section 17(5) of the [RAF] Act is not available to
Bonitas. It paid past medical expenses on behalf of the plaintiff. It did not supply
goods or provide services on behalf of the plaintiff. Bonitas can therefore not claim
directly from the defendant the expenses it incurred on behalf of the plaintiff in terms
of section 17(5) of the Act.
[13] Bonitas can recover from the defendant the payment it made on behalf of the
plaintiff and for which the defendant is primarily responsible by way of an action
based on the principle of subrogation. It may sue the defendant in its own name or in
the name of the plaintiff. (Rand Mutual Assurance Co Ltd v Road Accident Fund
2008 (6) SA 511 (SCA) at para 24). Subrogation embraces a set of rules providing
for the reimbursement of an insurer which has indemnified its insured under a
contract of indemnity insurance…
[15] In my view, settlement by Bonitas of the plaintiff’s past medical expenses does
not relieve the defendant of its obligation to compensate the plaintiff for the past
medical expenses he incurred. Payment by Bonitas was made in terms of the
undertaking made by the plaintiff to Bonitas in terms of which Bonitas agreed to
settle the plaintiff’s past medical expenses on the understanding that upon a
successful recovery from the defendant, the plaintiff would reimburse Bonitas for all
the costs it incurred on plaintiff’s behalf in connection with the claim against the
defendant.
[16] The obligation which the undertaking imposes on the plaintiff towards Bonitas
does not arise until such time that there is a successful recovery of the past medical
expenses by the plaintiff from the defendant. The defendant primarily remains liable
to the plaintiff for the payment of the past medical expenses and the liability of
Bonitas to the plaintiff for the past medical expenses is secondary to that of the
defendant. The defendant should pay the past medical expenses to the plaintiff who
should upon receipt of payment account to Bonitas in terms of the undertaking.’
(my emphasis – see also Ackerman v Loubser ;6 Mooideen v Road Accident Fund ;7
D’Ambrosi v Bane and Others;8 Watkins v Road Accident Fund.9)
6 1918 OPD 31 at 36.
7 Unreported judgment of Davis J in this Division under case number 17737/2015, delivered on
11 December 2020.
8 2010 (2) SA 539 (SCA).
9 Unreported reasons for Order by Van Zyl AJ in this Division under case number 19574/2017,
delivered on 8 February 2023.
8
[14] There is no dispute that both Mr Van Tonder and Mr Le Roux have contracted
with their medical aid scheme(s) to reimburse the scheme any amounts paid by the
RAF for past medical expenses. The RAF was unable to refer me to a single
authority to the effect that, despite the long line of decisions to the contrary on the
doctrine of subrogation, regulations 7 and 8 of the Medical Schemes Act somehow
nevertheless override the well established legal position…’
[10] Van Tonder was cited with approval in Road Accident Fund v Sheriff of the High
Court for the District of Centurion East and Another 10 and Road Accident Fund v
Malgas.11 I am given to understand that following a refusal of leave to appeal in
Road Accident Fund v Sheriff of the High Court for the District of Centurion East and
Another the petition by the RAF to the Supreme Court of Appeal was unsuccessful. I
understand that in Van Tonder the RAF has similarly petitioned the Supreme Court
of Appeal but I am not aware of the outcome of that petition. In RAF v Malgas the
court, dealing with the same argument raised by the RAF in Van Tonder , also
referred to the Supreme Court of Appeal decision in Road Accident Fund v Abdool -
Carrim and Others and found that:
‘[14] What the Abdool -Carrim judgment establishes is the following: The provisions
of the RAF Act must be considered within the context of the purpose of the Act. The
principal object of the RAF Act is “to establish the Fund to pay compensation for loss
or damages to third parties wrongfully caused by the driving of motor vehicles. The
Act’s main purpose is to provide the widest possible protection to third parties”. It
protects victims of motor vehicle accidents who otherwise would have suffered as a
result of the inability of the wrongdoer to pay damages.
10 [2024] ZAGPPHC 149 (19 February 2024) at paras [28] to [30].
11 Unreported judgment of Van Zyl DJP in application for leave to appeal, case no 126/2020 Eastern
Cape Local Division, Gqeberha, delivered on 5 March 2024 at para [18].
9
[15] Section 19(d) places a limitation on the objective of the RAF Act to provide the
widest possible protection. Its effect is to limit the obligation of the Fund to pay
compensation to a third party claimant despite the fact that that party may otherwise
have a valid and enforceable claim for compensation. The question whether or not
an agreement entered into by the third party claimant with persons other than the
ones referred to in paragraph (c) of section 19 would render the third party’s claim
unenforceable, must be considered in the context of the purpose of the section itself
and the limitation it places on the right of the third party to be compensated. Its
purpose, said the court in Abdool -Carrim, is to protect the third -party claimant from
entering into champert ous agreements. Its purpose is not to render the third party’s
claim unenforceable where the agreement in issue serves an otherwise legitimate
purpose. It is accordingly not every agreement that would fall foul of section 19(d),
but only those agreements which the legislature intended to protect the third party
claimant against.’
[11] Having regard to the aforementioned decisions, I remain unpersuaded that there is
any merit in the RAF’s argument in relation to s 19(d)(i) of the RAF Act and/or
regulations 7 and 8 of the Medical Schemes Act. It follows that this defence must fail
and the plaintiff is entitled to payment of the full amount settled by Discovery Health
of R301 071.79.
Amounts rejected
[12] Turning now to the items totalling R17 210.98 rejected by the RAF. This is made up
as follows:
12.1 13 September 2015: payment to Wynberg Pharmacy of R294.90 (item 23 Table A,
Exhibit B). Reason for rejection: no legible invoice;
10
12.2 29 September 2015: payment to Balego and Associates, United States of America
(net of shipping costs) of R8 714.80 (Exhibit D1). Reason for rejection: availability in
South Africa of similar anaesthetic patches;
12.3 16 September and 21 September 2021: payment to acupuncturist Mr P Ruther of
R1 928 (items 338 and 339, Table B, Exhibit B). Reason for rejection: no proof or
indication on invoice whether registered with relevant professional body;
12.4 15 November 2023: payment to neurosurgeon Dr D Welsh of R726 (item 393, Table
D, Exhibit B). Reason for rejection: no causal link to injuries; and
12.5 20 November 2023: payment to radiologists Morton and Partners of R5 547.28 (item
393, Table D, Exhibit B). Reason for rejection: no causal link to injuries.
[13] In respect of the first item, the plaintiff accepted the relevant invoice is now so faded
(8½ years later) that it is illegible. However his testimony was that purchased were
an armsling and Dolorol Forte (pain medication), both of which were as a direct
result of his injuries. He also testified about his excruciating nerve pain which he
described as ‘relentless… like being in a pot of boiling oil 24/7’ . He reached a point
where he became severely depressed and at one stage, suicidal.
[14] As a result the plaintiff tried every alternative treatment he could find to lessen the
pain. This is why he purchased the anaesthetic patches (the second item, Exhibit
D1). He researched the availability of this product in South Africa but was not able to
11
source it. The pain was also why he was treated by the acupuncturist concerned (the
third item).
[15] Mr Abdool, who holds an honours degree in physiotherapy, has 20 years experience
and is currently studying towards a masters degree in public health, testified that
when the anaesthetic patches were purchased by the plaintiff in the USA their active
ingredient (lidocaine) was indeed not available in South Africa. However there was
an equivalent called Emla which could only be obtained on prescription. Had the
plaintiff sourced Emla after consultation with a medical professional the RAF would
not have rejected this item since there would be a ‘clinical reason’ to support it. Mr
Abdool explained however that he could not say whether the dosage in the patches
purchased by the plaintiff and those in Emla was the same, and did not dispute the
plaintiff’s evidence that the patches greatly relieved his pain.
[16] Regarding these three items it is my view that the first should be allowed, given also
the undisputed evidence of the plaintiff that the Wynberg Pharmacy invoice was
previously submitted to the RAF when it was still legible. As to the second, and in the
absence of any evidence by Mr Abdool regarding the cost of Emla patches at the
time, I will adopt a Solomonic approach and allow the plaintiff 50% thereof, i.e.
R4 357.40. The third item is disallowed based on the absence of any evidence that
Mr Ruther was registered with his professional body.
[17] I deal with the fourth and fifth items together. The plaintiff testified that he consulted
with neurosurgeon Dr Welsh on 15 November 2023 to address his persistent lumbar
pain which manifested itself at a stage following his arm injury. He confirmed that
12
Dr Welsh’s invoice (Exhibit D5) pertained to this consultation. The invoice itself
describes the purpose of the consultation as ‘problem-focused history’. The plaintiff’s
unchallenged evidence was further that Dr Welsh referred him for an MRI scan since
in his professional opinion, using the plaintiff’s words ‘my body alignment was out as
a result of my arm injury’. The fifth item, pertaining to radiologists Morton and
Partners, was for that MRI scan. The invoice (Exhibit D4 ) bears the description ‘MR
lumbar spine, limited study’.
[18] Mr Abdool countered this by testifying that the plaintiff’s hospital records immediately
following the collision made no mention of a lumbar injury and this only appeared in
later medico -legal reports. To my mind, Mr Abdool’s acceptance of a lumbar
condition featuring in later medico -legal reports serves to confirm the plaintiff’s
version. The fourth and fifth items are thus allowed.
[19] Accordingly, based on the above, the total amount rejected by the RAF of
R17 210.98 falls to be reduced by R4 357.40 as well as R1 928, and the plaintiff is
entitled to payment of R10 925.58.
Another internal directive
[20] As previously indicated the last defence pertains to yet another of the RAF’s internal
directives. Mr Abdool testified that ‘recently’ the RAF has issued a verbal (not
written) instruction to all relevant employees that, irrespective of whether claims
submitted for past medical and hospital expenses pre -date that instruction, all claims
are to be rejected if the supporting invoices or vouchers do not comply ‘strictly’ with
13
in-house requirements pertaining to International Classification of Disease (ICD)
codes. His evidence was further that if a claim is rejected on this basis the rejection
is communicated to the RAF claims handler dealing with the specific matter who is,
as far as he is aware, supposed to convey it to the claimant concerned.
[21] Mr Abdool was unable to refute that this instruction has never been conveyed to the
plaintiff, or that the rejections now relied upon by the RAF were also not conveyed to
the plaintiff at any stage until Mr Abdool met with the plaintiff’s legal team during the
former’s testimony . Accordingly even if the instruction could somehow apply
retrospectively (which it cannot) the plaintiff was deprived of the opportunity to
submit invoices or vouchers which did comply with (whatever) that instruction’s
content is , which too was unexplained save for Mr Abdool’s testimony that ‘the
definition of “invoice” requires practitioners’ full details and coding needs to be
correct’.
[22] In S v Mhlungu and Others12 the Constitutional Court made clear that:
‘[65] First, there is a strong presumption that new legislation is not intended to be
retroactive. By retroactive legislation is meant legislation which invalidates what was
previously valid, or vice versa, i.e. which affects transactions completed before the
new statute came into operation…
[67] There is still another well-established rule of construction namely, that even if a
new statute is intended to be retrospective insofar as it affects affected rights and
obligations, it is nonetheless presumed not to affect matters which are the subject of
pending legal proceedings…’
12 1995 (3) SA 867 (CC) at paras [65] to [67].
14
(See also Kaknis v Absa Bank Ltd; Kaknis v Man Financial Services SA (Pty) Ltd
2017 (4) SA 17 (SCA) at paras [10] to [11]).
[23] In Sithole v Road Accident Fund 13 the court, dealing with an internal directive issued
by the RAF on 12 August 2022, held as follows:
‘[23] Even if an “internal directive” of the defendant and which is not aligned with the
Road Accident Fund Act, was capable of being binding on third parties, which it is
not, certainly the approach regarding retrospectivity would be similar to that which
has been set out in the case law quoted above… If an organ of state is bound by the
settled law, as referred to above, how much more should it not be applicable to an
internal directive, albeit for external application, in such an organisation?’
[24] In Mautla and Others v Road Accident Fund and Others 14 the applicants sought the
review and setting aside of decisions made by the RAF to adopt and implement a
management directive, a supplier communication notice, a board notice and a claim
form substitution notice, all relating to the manner in which it receives and deals with
claims that are submitted to it. These decisions were purportedly implemented to
‘better achieve its purpose and to improve operations’. The Full Court held as
follows:
‘[24] The right to claim compensation in terms of the Act is a right that is enjoyed by
every person within the Republic, subject to compliance with the requirements of the
Act. On this aspect section 4(1) of PAJA, which requires procedural fairness in
matters where the rights of the public are “materially and adversely” affected, is
engaged.
13 [2023] ZAGPJHC 869 (28 July 2023).
14 [2023] ZAGPPHC1843 (6 November 2023).
15
[25] It is common cause that at no stage was there any consideration afforded to
any of the rights of the public by calling for participation and input in respect of the
anticipated Decisions. It was done without the implementation of any procedurally
fair process/es. The Decisions taken were without engagement with any affected
persons or the public and were without more imposed upon them.
[26] The claim form and requirements for the submission of a valid claim are the
gateway to any claim for compensation and hence there is a necessity for proper
consideration and consultation before any such requirements that are not specifically
prescribed by statute can even be considered, let alone imposed.’15
[25] The Full Court also emphasised that the RAF Act does not contemplate two sets of
rules – one by regulation and another by “ Board Notices ”.16 It set aside all the
decisions as unlawful.
[26] Lastly, in Legal Practitioners Indemnity Insurance Fund NPC and Others v Road
Accident Fund and Others 17 a Full Court, albeit dealing with other challenges in
respect of, amongst others, a notice issued by the RAF (which at least in that case
was made public, the opposite of what has occurred in the present case) held as
follows:
‘[41] We turn next to the challenge that is made to the Board Notice. It will be recalled that
the Board Notice was published by the RAF in terms of s 4(1)(a) of the RAF Act. The
Board Notice includes a schedule which sets out the documents the RAF requires for
the lodgment of a claim. The Board Notice is also formulated on the basis that it is an
15 Referring to Esau and Others v Minister of Co -Operative Governance and Traditional Affairs and
Others 2021 (3) SA 593 (SCA).
16 At para [66].
17 [2024] ZAGPPHC 294 (20 March 2024).
16
amendment of the RAF 1 claim form “as provided for in Regulation 7(1) of the RAF
Regulations, 2008”.
[42] Section 4(1)(a) provides that the powers and functions of the RAF include “the
stipulation of the terms and conditions upon which claims for the compensation
contemplated in section 3 shall be administered”.(our emphasis) Can the RAF’s
power to administer claims in terms of s 4(1)(a) overlap with the power given to the
Minister to prescribe the particulars of the form that must be completed to make a
claim under the RAF Act, as detailed in s24 read with s26 of the RAF Act? This
cannot be so. The RAF Act affects a division of powers. Section 1 defines “prescribe”
to mean “by regulations under section 26 ”. Section 24(1) provides that a claim for
compensation and the accompanying medical report under s 17(1) shall “be set out
in the prescribed form, which shall be completed in all its particulars ”. Section 26(1)
confers the power on the Minister to make regulations “regarding any matter that
shall or may be prescribed in terms of this Act ”. One such matter is the prescribed
form to make a claim. Section 11(1)(a)(v) provides that the Board of the RAF may
make recommendations to the Minister in respect of any regulation to be made
under the RAF Act.
[43] It is for the Minister then to make the regulation that prescribes what form must be
completed (and its contents) to make a claim for compensation. The Board of the
RAF may make recommendations to the Minister, but the Minister decides.
Whatever power the RAF enjoys to administer claims in terms of s 4(1)(a), it cannot
trespass upon the Minister’s power in terms of s 24(1) read with s 26(1). To hold
otherwise would contemplate a situation in which the Minister and the RAF could
specify for different and contradictory requirements for persons to make a claim. The
legislature could never have contemplated such a conferral of powers...’
[27] In the present matter this court is left in the dark as to whether or not the “ directive”
issued by the RAF pertaining to codes falls solely within its administrative powers
and functions, but even if it does, that “directive” cannot apply retrospectively to the
17
plaintiff’s claim. Not only is this settled law but in the particular circumstances of this
case, the abject failure by the relevant RAF Claims Handler(s) to even notify the
plaintiff of rejection because of an alleged ICD code issue cannot redound to the
detriment of the plaintiff. There was simply no fair or transparent process, and it
cannot be that the plaintiff is non -suited because the RAF decides internally, without
more, that he should be. It follows that the plaintiff is also entitled to payment of the
last disputed amount of R161 828.17.
[28] Finally, in respect of costs, there is no reason why they should not follow the result.
In order to prevent any unnecessary delay in having my order issued, I make the
order in the terms annexed, marked “X”.
J I CLOETE
For plaintiff: Adv W Coughlan,
Instructed by: FDP Attorneys (Ms S Pappin)
For defendant: Mr S Mushwane of the State Attorney
Instructed by: The Road Accident Fund