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[2016] ZAECMHC 30
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Busuku v Road Accident Fund (3055/2014) [2016] ZAECMHC 30; [2016] 3 All SA 498 (ECM); 2017 (1) SA 71 (ECM) (9 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 3055/2014
DATE:
09 JUNE 2016
REPORTABLE
In
the matter between:
ZUKO
BUSUKU
..........................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
SUMMARY
:
Interpretation of
section 24
(1) (a)
of the
Road Accident Fund Act 56 of 1996
read with
Regulation 7
(1)
of the Regulations promulgated thereunder — the submission of
the claim form is peremptory, meaning strict compliance
— the
prescribed requirements concerning the completeness of the form are
directory, meaning that substantial compliance
will suffice —
Regulation 7
(1) read with
section 24
(1) (a) of the Act prescribe
the submission of the claim form on form RAF 1 which requirement is
peremptory — a medical report
on form RAF 1 left blank and
incomplete is tantamount to no medical report having been submitted
and thus to having no legal force
and effect —
section 24
(1)
(a) and
Regulation 7
do not allow for the substitution of form RAF 1
with hospital notes — issue of substantial compliance only
arises in regard
to content of form — does not arise and cannot
arise in absence of claim form — held that submission of blank
medical
report on form RAF1 had no legal effect, resulting in
prescription of claim.
ORDER :
The
defendant’s special plea is upheld and the plaintiff’s
claim is dismissed with costs.
CORAM
: ALKEMA J
[1]
The plaintiff instituted action against the Road Accident Fund on 23
October 2014 arising from a motor vehicle collision on
21 June 2012.
It is alleged by plaintiff in his particulars of claim that the
collision was caused by the negligent driving of
a vehicle where the
identity of neither the owner nor the driver thereof has been
established. It is thus a claim under section
17 (1) (b) of the
Road Accident Fund Act 56 of 1996 (the Act).
[2]
The defendant raised a Special Plea claiming that plaintiff has
failed to send or deliver to it a medical report as contemplated
by
section 24 (1) read with section 24 (2) (a) of the Act, resulting in
the claim becoming prescribed. The plaintiff’s
answer is
that he complied substantially with the requirements of the Act and
that the claim has not become prescribed. Thus
the sole issue
before this Court is whether the Special Plea should be upheld or
dismissed.
[3]
The salient facts are these: On 30 April 2014 the plaintiff lodged a
so-called RAF 1 claim form with the Defendant. For
the purposes
of this judgment I will assume that the first part of the claim form
was duly completed by the plaintiff. Attached
to the claim
form, from para 22 thereof, is a medical report template which was
left blank. The only information that was
filled in was the
plaintiff’s personal details.
[4]
For purposes of this judgment I will refer to the medical report as
the “
incomplete medical report.”
The plaintiff’s attorney testified that he personally delivered
the completed claim form and incomplete medical report
to the offices
of the defendant in Mthatha. Attached to the medical report
were all the hospital notes pertaining to the
medical treatment of
the plaintiff. The claim and accompanying incomplete medical
report bear the date stamp of the Fund
of 30 April 2014, but the
hospital notes bear no date stamp. I nevertheless accept Mr
Ncolo
’s
evidence that he delivered the hospital notes simultaneously with
form RAF1.
[5]
Mr
Bodlani
,
who appeared for the plaintiff, submitted that the hospital notes
attached to the blank medical report provided all the information
required by the medical report, with the only difference that the
source of the information was not the medical report, but the
hospital notes submitted therewith. In the circumstances, he
submitted there was substantial compliance with section 24 of
the
Act.
[6]
Mr
Bodlani
has also referred me to a long line of cases in which it had been
recognized that the Act and its predecessors represent “…
social legislation aimed at the widest
possible protection and compensation against loss and damages for the
negligent driving of
a motor vehicle.”
See:
Road Accident Fund v M obo M
[2005] 3 All SA 340
(SCA) at para 12;
Aetna
Insurance Co v Minister of Justice
1960
(3) SA 273
(A) at 285 E-F;
Multilateral
Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996
(2) SA 145
(A) at 152 E-I;
Bezuidenhout
v Road Accident Fund
2003 (6) SA 61
(SCA) at para 7.
[7]
On the other hand, the above consideration must also be balanced
against the protection of the interests of the Fund.
The Fund
relies entirely on the fiscus for its funding and it should be
protected against illegitimate and fraudulent claims.
[8]
In
Multilateral Motor Vehicle Accident Fund v Radebe
[1995] ZASCA 80
;
1996 (2)
SA 145
(A) at 152 E-I
Nestadt
JA said:
“
It
is true that the object of the Act is to give the widest possible
protection to third parties. On the other hand, the benefit
which the claim form is designed to give the fund must be borne in
mind and given effect to. The information contained in
the
claim form allows for an assessment of its liability, including the
possible early investigation of the case. In addition,
it also
promotes the saving of the costs of litigation. These various
allegations are important and should not be whittled
away. The
resources, both in respect of money and manpower, of agents and
particularly of the fund are obviously not unlimited.
They are
not to be expected to investigate claims which are inadequately
advanced. There is no warrant for casting on them
the
additional burden of doing what the regulations require should be
done by the claimant.”
[9]
These remarks are equally applicable to medical reports. The
content of the medical report allows for an early investigation
in,
and assessment of, the quantum of damages. It calls for certain
specific information and particularity to achieve this
end. The
claim and accompanying medical report must, in terms of section 7 of
the Regulations read with annexure A thereto,
be set out in form
RAF1, which form includes the medical report.
[10]
It has repeatedly been recognized that the statutory requirements of
the Act relating to the submission of the claim form and
medical
report is peremptory; and that the prescribed requirements concerning
the completeness of the form including the medical
report, are
directory. This means that substantial compliance with such
requirements suffices.
[11]
In Pithey v Road Accident Fund
2014 (4) SA 112
(SCA) the
Supreme Court of Appeal held at 120 (para 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.”
[12]
As I understand the above
dictum
,
the statutory requirements relating to the submission of the claim is
peremptory; meaning there must be strict compliance with
the
requirements. However, the requirements relating to the content
thereof, or the level of completeness of the form, are
directory,
meaning that substantial compliance will suffice. The issue of
substantial compliance therefore only relate to
the content of the
claim form and not to the submission of the claim form. It
follows that the issue of substantial compliance
only arises once it
is found that there has been exact compliance with the requirements
relating to the submission of the claim
form, and then only in
respect of the content of the form.
[13]
In
Molokoane v Multilateral Vehicle Accidents Fund
[1998] ZASCA 72
;
1998 4 All
SA 486
SCA at 491 (a)-b)
Melunsky
AJA (as he then was), said:
“
In
my view the appellant cannot rely on the principle of substantial
compliance to excuse her failure to send the MMF 1 form to
the entity
which had to deal with it. It was a peremptory requirement of
the agreement that the claim for compensation had
to be sent to the
appropriate appointed insurer or the MMF, as the case maybe, before
the commencement of legal proceedings.
This is clear from the
provisions of article 62 (a). (See Nkisimane and others v
Santam Insurance Co. Ltd
1978 (2) SA 430
(A) at 433 E-G and 435A-H;
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 831E and SA
Eagle Insurance Co. Ltd v Pretorius 1998 (2) 656 (A) at 663A-B).
It is true that the object of the legislation
was to provide the
widest possible protection to injured person but this does not
entitle a court to overlook the failure to follow
a procedure that
required exact compliance. In the result the submission of the
claim form to Mutual and Federal had no legal
effect.”
[14]
For the reasons which follow, I believe the above
dictum
has equal application to the facts of this case. The issue in this
case is essentially whether there had been exact compliance
with the
Act in the submission of the claim form — which is peremptory.
[15]
The submission of a claim under section 17 (1) (b) of the Act is
dealt with by Regulation 2 of the Regulations promulgated
under
section 26 of the Act, read with section 24 of the Act. It is
necessary to quote the applicable legislation in full.
[16]
Regulation 2 of the Regulations (Government Gazette No. 770 of 21
July 2008: Road Accident Fund Regulations 2008 (Regulations)
prescribe as follows:
“
2
Further provision for liability of Fund in terms of section 17 (1)
(b)
:
(1)
(a) A claim for compensation
referred to in section 17 (1) (b) of the Act shall be sent or
delivered to the Fund in accordance with
the provisions of section 24
of the Act, within two years from the date upon which the cause of
action arose.
(b)
A right to claim compensation from the Fund under section 17 (1) (b)
of the Act in respect of loss or damage arising from the
driving of a
motor vehicle in the case where the identity of neither the owner nor
the driver thereof has been established, shall
become prescribed upon
the expiry of a period of two years from the date upon which the
cause of action arose, unless a claim has
been lodged in terms of
paragraph (a)
(c)
In the event of a claim having been lodged in terms of paragraph (a)
such claim shall not prescribe before the expiry of a period
of five
years from the date upon which the cause of action arose.
(2)
Notwithstanding anything to the contrary contained in any law a claim
for compensation referred to in section 17 (1) (b) of
the Act shall
be sent or delivered to the Fund within two years from the date upon
which the cause of action arose irrespective
of any legal disability
to which the third a party concerned may be subject.”
[17]
The meaning of the words “
claim”
and “
a
claim for compensation”
in Regulation 2 of the Regulations
quoted above, and the particularity required in completing the
medical report, are described
in section 24 of the Act read with
Regulation 7 of the Regulations. I quote only the relevant
parts.
“
24.
Procedure
(1)
A claim for compensation and accompanying medical report under
section 17 (1) shall—
(a)
be set out be 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) …
…
(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 the
validity thereof, the claim shall be deemed to be valid
in law in all
respects.
(6)
No claim shall be enforceable by legal proceedings commenced by a
summons served on the Fund or an agent—
(a)
before the expiry of 120 days from the date on which the claim was
sent or delivered by hand to the Fund or the agent as contemplated
in
subsection 1; and
(b)
before all requirements contemplated in section 19 (f) have been
complied with:
Provided
that if the Fund or the agent repudiates in writing liability for the
claim before the expiry date of the said period,
the third party may
at any time after such repudiation serve summons on the Fund or the
agent, as the case may be.”
[18]
Finally, it is necessary to refer to Regulations 7 (1) and (2) of the
Regulations, which read as follows:
“
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, or such amendment or substitution thereof as the Fund
may from time to time give notice
of in the Gazette.
(2)
A claim by a supplier referred
to in section 24 (3) of the Act shall be in the form RAF2 attached as
Annexure to these Regulations,
or such amendment or substitution
thereof as the Fund may from time to time give notice of in the
Gazette.”
[19]
Section 24 (1) provides 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.”
Regulation
7 of the Regulations provides that the claim and medical reports
“
shall”
be
in the forms described in the Annexure to the Regulations, and s.24
(4) (a) of the Act provides that any form which is not completed
in
all its particulars “…
shall
not be acceptable as a claim under this Act.”
Section
24 (4) (b), (c) and (d) calls for the level of particularity required
in completing the medical report.
[20]
I think it is evident from the above quoted sections of the Act and
Regulations, that the claim and accompanying medical report
requires
a level of particularity which enables the Fund to ensure that an
assessment of a serious injury can be made in accordance
with the
method prescribed in Regulation 3 (1) (b), and that it was made by a
medical practitioner as meant by s. 24 (2).
This information
cannot be gleaned from the hospital notes.
[21]
Three consequences flow from the aforesaid: First, the claim
and accompanying medical report must be set out on Form
RAF 1 (which
constitute the prescribed form), which form must be delivered to the
Fund within two years from the date upon which
the cause of action
arose. These two documents constitute the claim for
compensation. Two, the medical report shall
be completed in all
its particulars by the medical practitioner who treated the injured
person for those injuries. Three,
and on the strength of
Pithey
(
supra
),
and if the words used in Regulations 2 and 7 read with section 24 (1)
(a) of the Act are taken seriously, the submission of the
claim and
accompanying medical report must comply strictly with the statutory
requirements which are peremptory.
[22]
The purpose of Regulations 2, 3 and 7, read with sections 17 (1A) and
24 of the Act, is to enable the Fund to gather all the
required
information from the prescribed forms to enable it to assess the
validity and quantum of the claim without casting an
additional
burden on the Fund to carry out its own investigations.
[23]
As stated at the outset of this judgment, the medical report attached
to the Third Party Claim Form served on the Fund on 30
April 2014,
was left in blank and no particularity was supplied at all. It
lacks any or all compliance with any or all of
the provisions under
the Act or Regulations. Due to its total lack of compliance,
the issue of “
substantial
compliance”
with the Act or
Regulations does not arise. In my view, it cannot even be
termed as partial compliance; it can best be described
as
non-compliance with the Act and Regulations.
[24]
If the words used in the above quoted sections are given their
ordinary grammatical meaning, as they must, and if the sections
are
given effect to, as they must, then the inescapable result is that
the medical report must be completed in all its particulars;
and if
not, then the claim shall not be acceptable as a claim under the
Act. It follows that the hospital records may not
substitute a
duly completed medical report as the source of the information.
The Act read with the Regulations only recognize
the duly completed
medical report on form RAF1 as the only source of the information.
If the hospital records may constitute
substantial compliance with
Regulation 7 read with section 24 of the Act, as Mr
Bodlani
submitted, then the words used in the Act and Regulations become
meaningless and are not given effect to. And this is not
permissible under the law of interpretation of Statutes and it
offends the case law on the subject, including judgments from the
Supreme Court of Appeal which are binding on this Court.
[25]
The requirement by section 24 (2) (a), namely that the medical report
must be completed by the medical practitioner who treated
the
plaintiff, strengthens the inference that the hospital notes may not
substitute the duly completed medical report under form
RAF1.
Regulation 7 of the Regulations specifically requires that the claim
and accompanying medical report “…
shall
be in the form RAF1 attached as Annexure A to these Regulations …”
This requirement rules out the notion
that the hospital notes may constitute substantial compliance with
the Act and Regulation.
Finally, section 17 (1) (b)
(1A) read with section 26 (1A) and Regulation 3 of the Regulations,
prescribe in detail the method
of assessment of a serious injury and
by whom such assessment shall be carried out, and which assessment
must be in the form RAF4.
These requirements militate against
the use of hospital notes which simply refer to the hospital
treatment received by the plaintiff,
in the place of the prescribed
forms RAF.
[26]
In
Multilateral Motor Vehicle Accidents Fund v Radebe
[1995] ZASCA 80
;
1996 (2)
SA 145
(AD) the (then) Appellate Division held at 152 H-I:
“
The
resources, both in respect of money and manpower, of agents and
particularly of the fund are obviously not unlimited.
They are
not expected to investigate claims which are inadequately advanced.
There is no warrant for casting on them the
additional burden of
doing what the regulations require should be done by the claimant.
There can be no (substantial) compliance
where the claimant has
merely indicated to the fund how it, through its own efforts, can
obtain the necessary information or documents.”
[27]
The above remarks apply equally to where the medical report is left
in blank.
[28]
A medical report left in blank means that there is no medical report
before the court. There is no burden on the Fund
to do its own
investigations, and for the reasons mentioned in the various cases
referred to, the Fund should not be saddled with
such a burden.
The medical report serves a certain function and once it is allowed
to be left in blank one makes a mockery
of the function it serves to
fulfil.
[29]
I therefore come to the conclusion that the issue of substantial
compliance of the content of the medical report does not and
cannot
arise in circumstances where it is left in blank. Having regard
to the last sentence in the extract of the
dictum
quoted above in
Molokoane
(
supra
),
I find the submission of a blank medical report has no legal effect
due to its non-compliance with Regulations 2 and 7 read with
section
24 (1) (a) of the Act which are peremptory and not directory.
[30]
There are two further issues which call for comment. The first
relates to the plaintiff’s claim for non-pecuniary
loss, and
the second to the effect of section 24 (5) of the Act. I shall
deal first with the claim for non-pecuniary loss,
and then with
section 24 (5).
[31]
Plaintiff’s claim for non-pecuniary loss is limited to
compensation for a serious injury as contemplated in section 17
(1A)
of the Act. In terms of the Regulations, the prescribed form
for a serious injury assessment report is form RAF4.
In terms
of Regulation 2, the claim for compensation shall be sent or
delivered to the Fund within two years from the date upon
which the
cause of action arose.
[32]
The date upon which the cause of action arose in this case was 21
June 2012, which means the RAF4 form had to be sent or delivered
to
the Fund on or before 20 June 2014. The RAF4 form in this case
reflects the date of assessment of the serious injury as
15 August
2014, long after the due date of delivery on 20 June 2014. On Mr
Ncolo
’s
own evidence, it was delivered by him to the Fund on 1 September
2014, more than two months after the due date on 20 June
2014.
It follows that because no claim had been lodged as contemplated by
Regulation 2 (1) of the Regulations read with section
24 of the Act,
the claim became prescribed on 21 June 2014 in terms of Regulation 2
(1) (b) of the Regulations.
[33]
I now turn to the final issue relating to the effect of section 24
(5) of the Act.
[34]
Section 24 (5), quoted in full above, provides that if the Fund does
not, within 60 days of the delivery of a claim to it,
object to the
validity thereof, the claim shall be deemed to be valid in law in all
respects. There is no evidence before this
Court that the Fund ever
objected to the validity of the claim. The question which arises is
whether such failure triggered the
deeming proviso in section 24 (5).
[35]
The object and purpose of section 24 (5), in my respectful view, is
if the information contained in forms RAF1 or RAF4 do not
comply with
the particularity required, then in the absence of timeous objection
thereto by the Fund, those forms will be deemed
to be in substantial
compliance with the provisions of the Act and Regulations and thus
valid in law in all respects. The deeming
proviso thus can only
operate where the forms are completed, but suffer from a lack of
particularity or clarity as required by
section 24 and or other
provisions of the Act or Regulations. It cannot operate in
circumstances where there is a total lack of
compliance such as where
the medical report had not been completed or the Serious Injury
Report (form RAF4) was delivered out of
time.
[36]
If it is held that the deeming proviso can be triggered even in
circumstances where there has been a total lack of compliance
with
section 24 or the other provisions of the Act or Regulations, then an
invalid claim as envisaged by section 24 (4) (a) will
be deemed to
become a valid claim. Such a result infringes on the principle
of legality in that a factual invalidity is converted
to a legal
validity. In my respectful view, this could not have been the
intention or the purpose of section 24 (5).
[37]
The medical report left in blank is, in my view, tantamount to the
medical report not having being lodged at all, and thus
to a total
lack of compliance with section 24. It can never be regarded as
being in substantial compliance with the Act and
Regulations.
It may be disregarded by the Fund and its (unfortunate) failure to
object thereto cannot convert an invalid
claim to a valid claim under
section 24 (5).
[38]
If section 24 (5) is construed to trigger the deeming proviso even in
circumstances where the medical report on form RAF1 was
never
completed, then it means that the claim is valid in law
notwithstanding that no information at all was placed before the
Fund
to assess and investigate the merits or quantum. Even if regard
may be had to the hospital records and notes, the information
contained therein do not supply the particularity required by the Act
and Regulations under the sections quoted above. Such
an
outcome could never have been the intention of the legislature and
also does not fulfil the object and purpose of the Act.
[39]
A final observation on this issue: section 24 (5) provides that the
deeming proviso is triggered within 60 days from the date
“…
on which a claim was sent. …”
The “
claim”
is obviously a claim as contemplated by section 24 (1), and this
means a claim for compensation “…
and
accompanying medical report …”
,
i.e. form RAF1. Section 24 (1) (a) is peremptory, and requires the
medical report to be set out in the prescribed form which “
shall”
be completed in all its particulars. A blank medical report
attached to the claim is thus not a “
claim”
as contemplated by section 24 (5), and the 60 day period could not
commence running. On this construction, the deeming proviso
was
never triggered.
[40]
In the circumstances I hold that the deeming proviso in section 24
(5) can only be triggered in respect of the content of the
claim form
— which is obligatory — but cannot be triggered if there
had been a total lack of compliance in respect
of the submission of
the claim — which is peremptory.
[41]
Finally, the letter from the Fund dated 19 November 2014 addressed to
plaintiff’s attorney is not an acceptance of the
validity of
the claim, as submitted by Mr
Bodlani
.
It is a repudiation of the claim for the reasons set out therein,
which paved the way for the issue of summons under section
24 (6).
[42]
For the above reasons I believe the Special Plea based on plaintiff’s
failure to comply with section 24 (1) read with
24 (2) (a) of the
Act, must be upheld.
[43]
I accordingly make the following order:
The
defendant’s Special Plea is upheld and the plaintiff’s
claim is dismissed with costs.
ALKEMA
J
Heard
on : 08 March 2016
Delivered
on : 09 June 2016
Counsel
for Plaintiff : Adv. Bodlani
Instructed
by : Ximbi Ncolo Inc. Attorneys
Counsel
for Defendant : Adv. Malunga
Instructed
by : Smith Tabata Inc. Attorneys