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2024
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[2024] ZAFSHC 150
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Raseyalo v Road Accident Fund (958/2023) [2024] ZAFSHC 150 (1 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/
Not
reportable
Case
no: 958/2023
In
the matter between
KHAUDI
DAVID RASENYALO
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Heard:
20 March 2024
Delivered:
1 July 2024
Summary:
Special Plea based on provisions of RAF
Board Notice 271 of 2022, issued in terms of
Regulation 7(1) of the Road Accident Fund Regulations of 2008 –
whether Board
Notice is valid
ORDER
1.The two special pleas
raised by the Defendant are dismissed with costs, including the costs
of counsel on scale B.
JUDGMENT
LOUBSER
PJ
[1]
On 31 December 2021 the Plaintiff was a
passenger in a truck that collided with another vehicle at or near
the M10 Road, Namibia,
Free State Province. At the time of the
accident, the Plaintiff was 40 years old. It is alleged that he
suffered a serious fracture
of the left arm in the accident.
According to the summons, he suffered damages in the form of past and
future medical expenses,
general damages and past and future loss of
earnings in the total sum of R2 900 000 plus interest.
[2]
In
response to the summons, the Defendant raised two special pleas. The
first pertains to the alleged failure of the Plaintiff to
lodge a
substantially compliant claim in terms of section 24 of the Road
Accident Fund Act
[1]
, read
together with Board Notice 271 of 2022.
[2]
The second relates to the fact that the summons was served on the
Defendant before the invalid claim was cured by the Plaintiff.
The
Plaintiff then filed a replication in which he does not deal with the
substantial non-compliance of his claim. He only deals
with the issue
of the summons, by saying that the letter of objection received from
the Plaintiff, was not a letter of objection
based on the premature
summons. In the replication, the Plaintiff does not deny that he
received the letter of objection.
[3]
It is now apposite to refer to the facts as
they appear from the papers before the Court. The Plaintiff submitted
his claim for
compensation to the Defendant on the prescribed RAF
claim form on 13 September 2022. On 27 September 2022 the Defendant
notified
the Plaintiff’s attorneys in a letter of objection
that the claim did not meet all the requirements for a valid claim.
It
referred to Board Notice 271 of 2022, in which all the documents
are stipulated which must be included in the claim to ensure that
a
substantially compliant and valid claim is lodged. The documents
which were not included in the Plaintiff’s claim, are
then
listed in the letter, for instance copies of all hospital and medical
records, photographs of injuries, an employer’s
certificate
showing the nature of the employment, the period of service, pay
slips pre and post accident and proof of payment of
medical expenses,
to name a few.
[4]
This letter of objection was delivered by
the Defendant to avoid the sanction in terms of section 24(5) of the
Act, which provides
that if the RAF does not, within 60 days after
receipt of the claim, object to the validity thereof, the claim shall
be deemed
to be valid in law in all respects.
[5]
Despite supplementing his claim after the
letter of objection, all the alleged shortcomings were still not
cured, according to the
Defendant. The Plaintiff then proceeded to
serve a summons on the Defendant on 28 September 2023. To date, the
Plaintiff has not
placed the Defendant in possession of the required
employer’s certificate, and proof that he is not receiving any
disability
grant, according to an e-mail sent to the Plaintiff’s
attorney by the Defendant.
[6]
At the hearing of the special pleas, the
Defendant only relied on the first special plea, namely that the
plaintiff failed to lodge
a substantially compliant claim in terms of
section 24 of the Act, read together with Board Notice 271 of 2022.
On behalf of the
Plaintiff, it was submitted that there was indeed
substantial compliance with the provisions of the Act, and that Board
Notice
271 of 2022 has no lawful effect.
[7]
Now section 24(1) of the Act 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. Section 24(6)(
b
)
provides that no claim shall be enforceable by legal proceedings
commenced by a summons before all requirements contemplated in
section 19(
F
)
have been complied with. Section 19(
F
)
provides that the RAF shall not be obliged to compensate if the
claimant fails to submit, together with his claim, an affidavit
in
which particulars of the accident and related documents are fully set
out. Such an affidavit was indeed provided by the Plaintiff
in his
claim.
[8]
Board Notice 271 of 2022 stipulates the
terms and conditions upon which claims for compensation shall be
administered. It is mentioned
in the introduction thereof that the
implementation of these terms and conditions shall be effected with
the due and necessary
amendment of the RAF 1 claim form, as provided
for in Regulation 7(1) of the Road Accident Fund Regulations of 2008.
It is further
informed that, in addition to the documentation
required in terms of the Act to ensure that a valid claim is lodged
which substantially
complies with the Act, ‘the following
documents must be included and form part of the claim’s
supporting documents
when lodging a claim with the Fund’. A
long list of documents which have to be included then follows in the
Schedule to the
Board Notice.
[9]
The documents which are lacking in the
Plaintiff’s claim, are documents listed in the Schedule to the
Board Notice. The question
that now needs to be decided, is whether
the provisions of the Board Notice in question are valid and lawful
in effect. To put
it differently, should a special plea to the effect
that the provisions of the Board Notice have not been complied with,
be upheld?
[10]
In
Mautla
and Others v Road Accident Fund and Others
[3]
the Full Bench of the North Gauteng High Court also had to deal,
inter
alia
,
with a board notice and a claim form substitution notice relating to
the manner in which the RAF receives and deals with claims
that are
submitted to it. In a comprehensive judgment, the Court stated that
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.
[11]
The Court also considered the validity of
Regulation 7(1), which forms the cornerstone of the present Board
Notice, as indicated
above. The Regulation provides as follows: ‘A
claim for compensation and accompanying medical report referred to in
section
24(1)(
a
)
of the Act, shall be in the form RAF 1 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.’ The
Court then pointed out that what the RAF has done through
the
implementation of the substituted RAF1 form, is to summarily impose
conditions for the submission of what it regards as a valid
claim,
and at the same time appropriated to itself the right to decide
whether or not the provisions of section 24(1)(
b
)
of the Act are to apply.
[12]
The
Court concluded that the RAF exceeded its powers in issuing and
applying the Board Notice relevant in that case, in a peremptory
way
without any statutory authorization. The Board Notice did not
facilitate the efficient administration of claims, but rather
reduced
the number of claims by creating administrative hurdles to stop
claims from being submitted, the Court remarked.
[4]
[13]
In the end, the Court declared Regulation
7(1) to be unconstitutional, unlawful and invalid, and set it aside
to the extent that
it confers upon the RAF the right to amend or
substitute the RAF1 form attached to the Regulations as Annexure A.
It also set aside
Board Notice 58 of 2021 with description ‘Road
Accident Fund Stipulation of Terms and Conditions upon which Claims
for Compensation
shall be administered’, as well as any
directives or instructions issued, or actions taken in terms thereof.
The decision
to implement the ‘Substitution of RAF1 Claim Form’
published in the Government Gazette on 4 June 2021, and any
directives
or instructions issued, or actions taken in terms thereof,
was also set aside by the Court.
[14]
In the present case, the Board Notice on
which the RAF relies, was also issued in terms of the provisions of
Regulation 7(1), which
has now been declared unlawful and invalid.
The Board Notice therefore has no foundation for its existence any
more. In addition,
the present Board Notice falls in the same
category as the one dealt with in the abovementioned case, since it
also sought to supplement
the documentation required by the Act to
ensure that a valid claim is lodged. It is therefore exposed to the
same fate that had
befallen the one in the abovementioned case.
[15]
It follows that the Defendant cannot rely
on the stipulations provided for in Board Notice 271 of 2022, which
was issued in terms
of the provisions of the now defunct Regulation
7(1). As for costs, I can find no reason why the general rule that
costs follow
the result, should not apply.
[16]
The following order is made:
1.The two special pleas
raised by the Defendant are dismissed with costs, including the costs
of counsel on scale B.
PJ LOUBSER, J
Appearances
For
the Plaintiff:
Adv.
K. P. Mohono
Instructed
by:
Mavuya
Attorneys
Bloemfontein
For
the Defendant:
Ms
C. Bornman
Instructed
by:
Office
of the State Attorney
Bloemfontein
[1]
Act
56 of 1996
[2]
Published
in Government Gazette 46322 of 6 May 2022
[3]
[2023]
ZAGPPHC 1199
[4]
At
para 66 of the judgement