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[2021] ZAGPPHC 489
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Mokhele v Road Accident Fund (23548/2021) [2021] ZAGPPHC 489 (17 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 23548/2021
In
the matter between:
SELLO
PETROS
MOKHELE
Applicant
and
THE
ROAD ACCIDENT
FUND
Respondent
REASONS
FOR JUDGMENT
KUBUSHI
J
INTRODUCTION
[1]
The relief sought by the applicant in this matter was in the form of
a
mandamus
for an order directing the respondent to accept
delivery on 17 May 2021 before close of business (that is, prior to
the intervention
of extinctive prescription) of the applicant's
documents embodying his claim for compensation under and in terms of
the
Road Accident Fund Act 56 of 1996
, as amended (“the Act”),
and to acknowledge in writing receipt of same in terms of
section 24
of the Act.
[2]
The applicant had approached the court on an urgent basis. While the
applicant, in opposing
the application, had contended that the matter
was not urgent, alternatively that the urgency, if any, was self-
created, I was
of the view that the matter was urgent due to the fact
that the applicant’s claim was about to prescribe and that he
will
not
be afforded substantial redress at a hearing in due
course
.
[3]
The application was determined on the papers filed on Caselines
without oral hearing as
provided for in this Division’s
Consolidated Directives re Court Operations during the National State
of Disaster issued
by the Judge President on 18 September 2020.
[4]
I decided the matter in favour of the respondent and dismissed the
application with costs.
Because this matter was on the urgent roll, I
granted the order without providing any reasons. The applicant has
applied in terms
of Uniform
Rule 49
to be provided with the reasons
for such an order. Below are my reasons.
[5]
In addition to the defence raised by the respondent in opposing the
application, the respondent
had submitted that the court should at
the outset,
in limine
, before the merits, consider the
locus
standi
of the deponent to the founding affidavit. Because of the
decision I came to on the merits, I found it not necessary to deal
with
the
in limine
points of the respondent.
FACTUAL
MATRIX
[6]
The facts as distilled from the papers are largely common cause. The
applicant, as a passenger,
was involved in a motor vehicle collision.
According to the applicant, the driver of the motor vehicle lost
control of the vehicle
causing the motor vehicle to overturn. The
applicant suffered bodily injuries in the said collision. As a result
of such injuries,
the applicant was desirous of instituting a claim
against the respondent for compensation under and in terms of the
Act.
[7]
In terms of
section 24
(1) (a) of the Act,
[1]
read with
regulation 7
[2]
of the Road Accident Fund Regulations, 2008 (“the
Regulations”),
[3]
a claimant such as the applicant intending to claim compensation must
lodge with the respondent a prescribed claim form known as
the RAF1
form. The respondent is required to acknowledge receipt thereof in
writing. Thereafter, the respondent has sixty (60)
days in which to
object to the validity of any such claim lodged.
[8]
According to section 23 of the Act,
[4]
a claimant such as the applicant is obliged to lodge any such claim
within three (3) years after the date upon which the claim
arose. In
the present case the claim arose on the date of the collision which
is 18 May 2018. The period of three (3) years would,
in this
instance, expire at midnight on 17 May 2021.
[9]
It was averred that on 10 May 2021 the applicant's claim documents
were presented for lodgement
at the business address of the
respondent. However, the respondent refused to accept same. The claim
documents were returned to
the applicant. When returning the
documents, the respondent indicated in a letter to the applicant, the
documents which were
outstanding for valid lodgement which would in
turn enable the respondent to assess, investigate and settle the
claim. Accordingly,
no claim was lodged and prescription, which was
to expire on 17 May 2021, was not interrupted.
[10]
It was not in dispute that the respondent created a Management
Directive titled Compulsory Supporting
Documents required for RAF
Claims Administration (“the Management Directive”) in
which it prescribes numerous requirements,
directing that certain
documents be attached to all claims submitted to the respondent. The
respondent’s reason for refusing
to accept the applicant’s
claim was that some of the documents required in terms of the
Management Directive, were not attached
to the claim. In this sense,
the respondent’s contention was that the applicant failed to
comply with the requirements of
section 24 of the Act which
stipulates that any form referred to in this section which is not
completed in all its particulars
shall not be acceptable.
[11]
In its submission the applicant argued that the respondent's refusal
to accept the lodgement of his
claim and claim form was evidently
predicated upon this Management Directive which requires documents
over and above those stipulated
in the Act and its Regulations. As
such, it was the applicant's case that:
11.1
the applicant had substantially complied with the requirements of
section 24 of the Act read with regulation
7 of the Regulations; the
so-called Management Directive dated 8 March 2021 was not enforceable
and was
ultra vires
the Act and its Regulations;
11.2
As a result of the applicant’s substantial compliance with the
Act and its Regulations, the respondent
was legally obligated to
accept the applicant's lodgement and was not allowed to refuse the
lodgement.
[12]
The respondent’s case, on the other hand, was that in terms of
its object as set out in section
3 of the Act,
[5]
the respondent is mandated to pay out compensation in accordance with
the Act for loss or damage caused by the driving of motor
vehicles.
In order to achieve this object, the Board of the Fund and the
Minister of Transport approved the RAF Strategic Plan
2020 –
2025. The strategy is mainly aimed at settling claims within one
hundred and twenty (120) days of the lodgement of
a claim, to avoid
litigation.
[13]
In exercising its powers in terms of section 4 (1) (a) and section 4
(2) (g) of the Act, the respondent
contended that it took a decision
to stipulate the terms and conditions upon which claims for the
compensation contemplated in
section 3 shall be administered and the
terms and conditions which should be complied with when lodging a
claim. Such stipulations
are set out in the said Management Directive
mainly making it compulsory that certain documents as inevitably
required to asses,
investigate and settle the claims be attached to
and accompany the form referred to in section 24 of the Act and
Regulation 7.
[14]
The question I had to determine was whether the Management Directive
created by the respondent is
ultra vires
the Act and its
Regulations and should, therefore, not be complied with when lodging
a claim. Put differently, the question was
whether the respondent was
authorised the create the Management Directive.
[15]
The respondent relied on the provisions in sections 4 (1) (a) and 4
(2) (g) of the Act as empowering
it to create the Management
Directive. The said provisions of the Act stipulate the following:
15.1
In terms of section 4 (1) (a) of the Act, the Fund (respondent) is
empowered and/or authorised to stipulate
the terms and conditions
upon which claims for the compensation contemplated in section 3,
shall be administered.
15.2
In order to achieve its object as contemplated in section 3 of the
Act, the Fund (respondent) is empowered
and/or authorised, in terms
of section 4 (2) (g) of the Act, to take any other action or steps
which are incidental or conducive
to the exercise of its powers or
the performance of its functions.
[16]
It is evident from the aforementioned provisions of the Act that to
achieve its objective, the respondent
through its strategy and as
mandated by section 4 (2) (g) of the Act, decided that claims be paid
within one hundred and twenty
(120) days after lodgement of a claim.
In order to do so, the respondent, as authorised by section 4 (1) (a)
of the Act, saw it
fit to create the terms and conditions upon which
claims for compensation shall be administered. The terms and
conditions are set
out in the Management Directive. The
Management Directive and its title are telling that a claim should be
lodged with documents
(compulsory) sufficient to enable the
respondent to assess, investigate and settle claims within one
hundred and twenty (120) days
of lodgement.
[17]
It is, thus, clear that the Act and its Regulations mandate the
respondent to stipulate the terms and
conditions upon which claims
for compensation contemplated in section 3 of the Act, shall be
administered and in order to achieve
its object to take any other
action or steps which are incidental or conducive to the exercise of
its powers or performance of
its functions. In this sense, it cannot
be said that the Management Directive is
ultra vires
the Act
and its Regulations. Any purported lodgement that does not comply
with these terms and conditions will defeat the purpose
of lodgement
and the object of the respondent, and should, thus, be rejected.
[18]
It is provided in section 24 (1) (a) of the Act that a claim for
compensation and accompanying medical
report shall be set out in the
prescribed form, which shall be completed in all its particulars. In
addition, in
section
24 (4) (a) of the Act,
[6]
it is
clearly worded that the respondent shall not accept any form referred
to in this section which is not completed in all its
particulars, and
RAF 1 form is, one such form.
[19]
It is common cause that when the applicant lodged his RAF 1 form, not
all the documents required in
terms of the Management Directive were
attached to the form. It is also not in dispute that in its own
version the applicant admitted
that despite attempts he has to date
been unable to obtain any additional documents as required in terms
of the Management Directive,
and that it is impossible to comply with
the respondent’s directive. It is, thus, manifest that the
respondent decided not
to accept the applicant's lodgement for want
of compulsory documents as
per
the Management Directive.
[20]
The contention by the applicant that the respondent insists on strict
compliance with the management
directive whereas substantial
compliance has always been regarded as sufficient, is not correct.
The stipulations in sections 24
(1) and 24 (4) of the Act are clear
and peremptory. The form must be completed in all its particulars and
the respondent must not
accept any form that has not been completed
in all its particulars.
[21]
Furthermore, I am in agreement with submission made by the respondent
that the decision to create the
Management Directive is an
administration action and for as long as the Management Directive has
not been reviewed nor set aside
it remains enforceable. This is
trite.
[22]
I, also, found that the respondent was correct in its submission that
the applicant seeks a final mandatory
interdict against the
respondent but has failed to prove the requirements of a final
interdict as required in our law. The applicant
could not prove a
clear right to the subject matter of the litigation; there were no
facts showing how the measures set out in
the Management Directive
would injure the right of the applicant to submit a valid claim for
compensation as contemplated in section
3 of the Act; there were,
also, no facts averred or alleged sustaining a finding that the
applicant did not have an alternative
remedy whereas the applicant
could have just submitted the documents required in terms of the
Management Directive.
[23]
It is for all the above reasons that I dismissed the application.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Counsel
:
ADV
D D SWART
Applicant’s
Attorneys
:
MACHOBANE KRIEL INC
Respondents’
Counsel
:
NONE
Respondents’
Attorneys
:
MPOYANA LEDWABA INCORPORATED
Date
of hearing
: 17 MAY 2021
Date
of judgment
: 17 MAY 2021
[1]
Section 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.
[2]
7 Forms
(1) A
claim for compensation and accompanying medical report referred to
in section 24 (1) (a) of the
Act, shall be in the form RAF1 attached
as Annexure A to these Regulations . . .
[3]
Published
under GN R770 in GG 31249 of 21 July 2018.
[4]
Section 23 (1) Notwithstanding anything to the contrary in any law
contained, but subject to subsections (2) and (3), the
right to
claim compensation under section 17 from the Fund or an agent in
respect of loss or damage arising from the driving
of a motor
vehicle in the case where the identity of the either the driver or
the owner thereof has been established, shall become
prescribed upon
the expiry of a period of three years from the date upon which the
cause of action arose.
[5]
Section 3 The object of the Fund shall be the payment of
compensation in accordance with this Act for loss or damage
wrongfully
caused by the driving of motor vehicles.
[6]
Section 24 (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.