SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
NOT REPORTABLE
Case No.: 622/2023
In the matter between:
MZIWAKHE EMMANUEL TSHAM Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
EKSTEEN J:
[1] Mr Tsham, the plaintiff, was severely injured in a motor vehicle accident that
occurred on 9 November 2020 in Gqeberha, Eastern Cape. As a result of the injuries
which he sustained in the accident he instituted action for damages against the
defendant in terms of the Road Accident Fund Act1 (the Act). The defendant entered an
appearance to defend and in its plea it denied any knowledge of a collision and the
consequences thereof and it denied (in its amended plea) that Mr Tsham had complied
with the prov isions of the Act. This judgment relates only to the question of the
compliance with the Act.
[2] Although the ‘merits’ of the claim were in dispute on the pleadings, before the
commencement of the trial , the defendant admitted the locus standi of Mr Tsham and
acknowledged that, if it is found that Mr Tsham has complied with the Act, it is liable to
compensate him for 100% of such damages as he is able to prove that he has suffered
arising from the injuries sustained in the accident . They further agreed to separate the
question of compliance with the Act from the remaining issues in dispute.2
[3] The parties have agreed on the admitted facts that underlie the argument. It was
common ground that Mr Tsham submitted an RAF 1 form to the defendant under the
cover of a letter sent by his attorneys, and dated 21 September 2022, by registered mail
on 29 September 2022. The RAF 1 form and the documents annexed thereto comprise
68 pages and was admi tted into evidence by agreement . It is not suggested that the
form was not completed in every material respect.
[4] Mr Tsham issued summons , that was served on the defendant on 17 March
2023, in which he alleged that he had complied with all the requirements of the Act.
Thereafter, the defendant entered an appearance to defend on 25 April 2023 and
proceeded to file its plea on 17 May 2023. In its initial plea the defendant said that it
had no knowledge of Mr Tsham’s compliance with the provisions of the Act. However, in
October 2024, more than a year later, the defendant filed an amended plea in which it
denied that Mr Tsham had complied with the requirements of the Act , and it annexed to
its plea a letter dated 19 June 2024. The letter constitutes the sole basis for the denial
1 Act 56 of 1996.
2 In terms of Rule 33(4) of the Uniform Rules of Court.
of compliance. As the plea does not set out the basis for the denial it is instructive to set
out the material portion of the letter in full. It recorded:
‘Dear Sir/Madam
1. To administer claims effectively and efficiently the Road Accident Fund
(RAF), pursuant to section 4(1)(a) of the RAF Act, 1996 (the Act)
published the Stipulated Terms and Conditions Upon Which Claims
For Compensation Shall Be Administered (the Terms and Conditions)
in Board Notice 271 of 2022 which was published in Government
Gazette No. 46322 on 6 May 2022. The Terms and Conditions, read
with section 24 of the Act, stipulate what documents must accompany
the claim documentation when submitting a claim for compensation.
2. We have pre -assessed the documentation presented / posted /
emailed by you on Tuesday, October 18, 2022 for the following
products General Damages, Loss of Earnings, Past Medical
Expense, Future Medical Expense, for compliance with section 24 of
the Act and the Terms and Conditions. We advise that the documents
submitted do not meet the requirement(s) for a substantially compliant
and valid claim, as follows:
1. Medical reports or documentation establishing or
substantiating claimants temporary/permanent disability
and the loss of earnings claimed (Medico Legal reports)
2. An itemised tax invoice for a registered medical provider/or
hospital for past medical expenses
3. Proof of payment of medical expenses
3. The RAF hereby objects to the validity of the claim submitted by you in
accordance with paragraph 25(4) of the Act for the reasons set out in
paragraph 2 above.
4. Consequently, we do not accept the documentation
presented/posted/emailed by you as a valid claim for purposes of
lodgment in terms of the Act and accordingly return the documents
herewith.
5. …’
[5] The amended plea elicited a replication in which Mr Tsham contended that it was
not open to the defendant to rely on the provisions of the Board Notice 271 of 2022
which had been declared to be unlawful and had been set aside by a full court of the
Gauteng Division. He contended further that the defendant was precluded from
objecting to the valid lodgment of the claim, on the grounds advanced, after the lapse of
sixty days from the date of receipt of the claim.
[6] Notwithstanding the replication the defendant persisted in its denial of
compliance with the Act. In Legal Practitioner’s Indemnity Insurance3 a full court of the
Gauteng Division declared Board Notice 271 of 2022 to be unlawful. In consequence
thereof, the RAF 1 form prescribed by the Minister of Transport in terms of s 26 of the
Act pursuant to the notice was also declared to be unlawful. Both we re reviewed and
set aside. I am advised by Ms Swartz, on behalf of the defendant, that the judgment is
not appealed. I have considered the judgment and I am in agreement with the reasons
advanced and the conclusions reached by the full court . Ms Swartz was unable to
advance any submission to the contrary. It follows that the defendant’s reliance on the
Board Notice 271 of 2022 is ill-founded and must be dismissed.
3 Legal Practitioner’s Indemnity Insurance Fund NPC and Others v Road Accident Fund and Others 2024
(4) SA 594 (GP).
[7] I turn to s 24(5). The section provides:
‘If the Fund … does not, within 60 days from the date on which a claim was
sent by registered post or delivered by hand to the Fund … as contemplated
in subsection (1), object to the validity thereof, the claim shall be deemed to
be valid in law in all respects.’
[8] As I have said the purported objection came more than a year after the issue of
summons and more than 3½ years after the accident. The effect of s 24(5) is that, even
where the content of the RAF 1 form, or the documentation annexed thereto, did not
fully comply with the Act, the defendant is required to give notice within sixty days of the
lodgment of the form of their objection. If no notice of objection is received within the
sixty day period the effect thereof is to clothe an otherwise invalid lodgment with legal
validity.4 It follows that the objections raised in June 2024 to Mr Tsham’s alleged
compliance with the provisions of s 24 of the Act, cannot be sustained either.
[9] In the result, I make the following order:
1. The defendant’s defence of non-compliance by the plaintiff with the requirements
of the Road Accident Fund Act, 56 of 1996, is dismissed, with costs.
2. The defendant shall be liable for 100% of such damages as plaintiff is able to
prove arising out of injuries sustained by him in the collision in which he was
involved on 9 November 2020.
3. All further aspects of the action are postponed, sine die.
4. Defendant shall pay the plaintiff’s costs of suit, together with VAT thereon, to
date, in respect of the trial relating to the merits of the action, on a party and
party scale, as taxed. Such costs are to include:
4 Road Accident Fund v Busuku 2023 (4) SA 504 (SCA) at para 20.
4.1 The costs of photographs;
4.2 The costs of preparation of heads of argument in respect of the argument
pertaining to compliance;
4.3 The costs of plaintiff’s counsel which are to be taxed according to Scale C
contemplated in Rule 69(7). Such costs to include one day’s trial fee.
5. Interest shall accrue on the costs at the legal rate of 11,75% per annum ,
calculated from a date 14 days after the date of taxation, until the date of
payment.
6. All payments in terms of paragraphs 4 and 5 above, ar e to be paid into plaintiff’s
attorneys banking account being:
GOLDBERG & DE VILLIERS INC ATTORNEYS
BANK: ABSA
ACCOUNT NO: 7[...]
BRANCH: Govan Mbeki Avenue
BRANCH CODE: 630616
REF: MAT 17453
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff: Adv L Schubart SC
Instructed by: Goldberg & De Villiers Inc
GQEBERHA
For Defendant: Ms R Swartz
Instructed by: State Attorney
GQEBERHA
Date Heard: 2 December 2024
Date Delivered: 10 December 2024