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[2021] ZAGPPHC 133
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Sithebe v Road Accident Fund (33165/17) [2021] ZAGPPHC 133 (11 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 33165/17
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
(3)
REVISED
DATE:
11 March 2021
SIGNATURE:
In
the matter between
SITHEBE
MMAPULE ESTHER
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1] This is an action instituted by
Esther Mmapule Sithebe (“the plaintiff”) against the Road
Accident Fund (“the
defendant”) due to personal injuries
sustained on 28 February 2016, whilst she was a passenger in an
insured motor vehicle
bearing registration number H[...] M[...] and
which was driven by the insured driver.
[2] The issue before me is the
determination of a special plea raised by the defendant, that the
plaintiff has failed to comply
with s24(4)(a) of the Road Accident
Fund Act 56 of 1996, (“the
Road Accident Fund Act&rdquo
;), in
that the plaintiff’s name is omitted in the RAF 1 form.
[3] The defendant was originally
assisted by the firm Ningiza Honer Incorporated. However a notice of
withdrawal from record was
filed. The matter was called at 15h10 on
10 March 2021. There was no one present on behalf of the defendant,
accordingly I proceeded
to consider this special plea by default.
BACKGROUND
[4]
The plaintiff’s attorney lodged a RAF 1 claim form, together
with a copy of the plaintiff’s identity document, the
police
docket, consent form and medical records with the defendant on 13
December 2016. The RAF 1 form at paragraph [22] omitted
the name of
the plaintiff.
[5] The defendant sent a letter to the
plaintiff’s attorneys on 24 February 2017 requesting them to
complete paragraph 22
of the RAF 1 form. The letter stated:
“
With
reference to the above matter, kindly send us the following:
Completion of paragraph 22 of RAF 1”
[6] The summons was filed on 16 May
2017. This was met with a plea on the merits dated 31 July 2017. The
defendant then amended
its plea to introduce a special plea in
respect of non-compliance with
s24
of the
Road Accident Fund Act. The
special plea is dated 1 October 2019.
[7] The plaintiff’s counsel
argued that the letter dated 24 February 2017 did not repudiate or
object to the plaintiff’s
claim. Counsel contended that there
has been substantial compliance with
s24(4)(a)
of the
Road Accident
Fund Act, in
that the hospital records and accompanying documentation
which were submitted to the fund were adequate to fulfil the needs of
an enquiry by the defendant. It was further contended that the
hospital records and accompanying documentation contained most of
the
information called for in the RAF 1 form. Counsel argued that because
the defendant failed to object within 60 days of the
lodgement of the
documents referred to in paragraph [4]
supra
, that in terms of
s24(5)
of the
Road Accident Fund Act, the
RAF 1 form is deemed to be
valid in all respects.
THE LAW
[8] It is trite law that a claim for
compensation and the accompanying medical report shall be set out in
the prescribed form being
the RAF 1 form in compliance with
s24(1)(a) of the Road Accident Act.
[9]
Section 24
of the
Road Accident
Fund Act states
that:
“
24.
(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, or to the agent who
in terms of
section 8
must handle the
claim, at the agent's registered office or local branch 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 a
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
.”[My
emphasis]
[10] In the case of
Road Accident
Fund v Busuku
(case number 1013/19)
[2020] ZASCA 158
(1 December
2020) the learned Eksteen AJA stated at paragraph [6] that;
“…
the
provisions of the Act must be interpreted as extensively as possible
in favour of third parties in order to afford them the
widest
possible protection. On the other hand, courts should be alive to the
fact that the Fund relies entirely on the fiscus for
its funding and
they should be astute to protect it against illegitimate or
fraudulent claims.”
[11] The submission of the claim form
is to enable the defendant to investigate the merits of a plaintiff’s
claim. As stated
by the learned Eksteen AJA in the case of
Road
Accident v Busuku supra
at paragraph [16]:
“
The
RAF 1 form does not call for detailed information. It is not
intended, of itself, to enable the Fund to assess the quantum of
the
plaintiff’s claim. It seeks to enable it to investigate the
impact of the injuries sustained. In order to do so the RAF
1 form
requires the disclosure of information to guide and facilitate the
investigation.”
[12] In the matter of
Pretorius v
Road Accident Fund
(353030/2018) ZAGPJHC 293 (26 August 2019),
the RAF 1 form omitted at paragraph [22] the name of the person who
the doctor examined.
The learned Sutherland J at paragraph [8]
stated:
“
What
is required is not formal mechanical compliance but substantial
compliance.”
Further at paragraph [11]
“
Thus,
a court of first instance is required to enquire into whether, as a
fact, the RAF has been prejudiced by the omission of information
in
the RAF 1 form, in the sense of being denied information it properly
requires to assess whether or not it is at risk of liability.
Where
the hospital records are provided with the RAF 1 form, it is
incumbent on the RAF to read such documentation together with
the RAF
1 form. A reading of those documents would have revealed that the
examination results recorded in the RAF 1 form are correlate
with the
medical records
”. [my emphasis]
EVALUATION
[13]
Section 24
of the
Road Accident
Fund Act provides
that any form, (which includes the RAF 1 form),
which is not fully completed shall not be acceptable by the Act.
However, s24(5)
states that whatever shortcomings there may be on a
claim form, the claim shall be deemed to be valid in law in all
respects unless
the fund, within 60 days from the date upon which the
claim was delivered, objects to the validity thereof.
[14] In the matter
in casu
, it
is clear that the special plea was raised more than 60 days after the
claim was filed. The letter filed by the fund dated 24
February 2017
is not an objection to the claim, it is merely a request to comply
with the provisions of s24(1)(a). In the absence
of a timeous
objection raised by the defendant, the claim is valid in terms of
s24(5) of the Road Accident Act and the special
plea should be
dismissed.
[15] If I am wrong in this regard, the
matter of
Pretorius v Road Accident Fund
supra
is
applicable, in that the hospital records that were supplied together
with the RAF1 form placed sufficient information before
the defendant
to establish the cause and nature of the plaintiff’s injuries.
It was accordingly incumbent on the defendant
to have read the RAF 1
form together with the medical reports.
[16] It is important to note that the
full name of the plaintiff as well as her signature appears at
paragraph 21 of the RAF 1 form,
as well as on the letter dated 13
December 2016. In addition, the plaintiff’s name appears on the
medical reports and on
the identity document that was filed on 13
December 2016. As stated in the case of
Road Accident Fund v
Busuku supra,
the hospital records cure the lack of a name and
surname which has been omitted on the RAF 1 form.
[17] There is a myriad of cases where
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. In the matter of
SA
Eagle Insurance Co Limited v Pretorius
(397/96)
[1997] ZASCA 107
;
1998 (2) SA 656
(SCA) the court held that as regards substantial
compliance, this is an objective test.
[18] Considering all the facts placed
before me,
I am satisfied that the defendant
was able to ascertain in respect of whom this claim was and was also
able to assess the cause
and extent of the injuries sustained by the
plaintiff. Accordingly, I find that the furnishing of the RAF 1 form
together with
the hospital records constitutes substantial compliance
with the requirements of
s24
of the
Road Accident Fund Act.
>
[19] Accordingly the special plea is
dismissed with costs.
ORDER
[20] In the premises the following
order is made:
1. The special plea is dismissed.
2. Costs are to be paid by the
defendant on a party and party scale.
D DOSIO
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was handed down
electronically by circulation to the parties’ and/or parties’
representatives by email.
The date and time for hand-down is deemed
to be 09h00 on 11 March 2021.
Matter heard on:
10 March 2021
Judgment granted on:
11 March 2021
Appearances
:
On
behalf of the Applicant
Adv.
K Mashaba
Instructed
by:
MTP
Monyai
On
behalf of the Respondent
Absent