REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Case Number: 042035/22
(1)
(2)
(3)
In the matter between:
SONJA ERASMUS
and
THE ROAD ACCIDENT FUND Applicant
Respondent
Delivered : This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines . The date and for hand-down is deemed to be 12 March 2025.
Summary: An order adfactum praestandum (for the performance of a particular
act) is enforceable through a contempt proceedings and not a judicial review. A
breach of a Court order does not amount to an exercise of public power and it
is not reviewable under a PAJA or legality review pathway. A breach of a Court
1
order occurs only when a party fails to do what a Court of law has directed
should be done. When a party refuses to do what has not been ordered by a
Court of law, that party does not instead exercise public or statutory power
simply because it is an organ of state. Judicial review as a remedy is
unavailable. The refusal by the RAF to preauthorise a medical procedure does
not amount to exercise of public power and does not amount to an
administrative action. At the very least it amounts to exercise of contractual
power. The RAF does not breach section 17(4) of the Road Accident Fund Act
when it refuses to preauthorise a requested medical procedure . Held: (1) The
application for review is dismissed with no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] Thankfully , the Court in Nxolo v Accident Fund Road (Nxolo)1 has, with sufficient
perspicacity , put an end to what was a growing practice for litigants seeking to
compel compliance with the section 17(4) undertaking orders with another order
to compel compliance in lieu of contempt proceedings . It does seem that another
avenue to achieve similar results is being introduced . The avenue is, to, as it is
the case herein, seek a judicial review, in an instance where the Road Accident
Fund (RAF) refuses to honour an undertaking in terms of section 17(4) of the
Road Accident Fund Act (RAFA). This avenue, before it becomes cancerous and
swell the already bulged rolls of this Court, must equally be stamped out
instantaneously . This judgment is purposed to do exactly that.
[2] This is an unopposed application seeking to judicially review two decisions taken
by the RAF officials. Both these impugned decisions relate to a rejection or
1 (34757/2014; 60468/2018) (2024] ZAGPPHC 1350 (11 December 2024)
2
refusal to preauthorise medical procedures to have been undertaken by the
applicant before this Court. The first impugned decision was communicated to
the applicant on 30 June 2020. The second one, was communicated to her on 3
March 2022. Disenchanted by both these decisions , the applicant launched the
present application on or about 20 October 2022. Unsurprisingly , for reasons
unbeknown to this Court, and as it has become customary, the RAF, failed to (a)
comply with the call in terms of rule 53(4)(d) of the Uniform Rules of this Court2
and (b) to oppose the reliefs sought by the applicant. Given the view this Court
takes at the end; the absence of the review record will not play a pivotal role in
the determination of the present application. Additionally, given the view this
Court takes, although not entirely satisfied that the delay in instituting the present
application is condonable or ignorable, this Court would depart from the premise
that the delay is condonable and or ignorable.
Pertinent background facts to the present application
[3] On 26 April 2002, the applicant , Ms Sonja Erasmus (Ms Erasmus) was involved
in a motor vehicle collision. As a result, she suffered bodily injuries. Owing to the
bodily injuries suffered by her, she instituted an action for damages against the
RAF. Ultimately, on 20 May 2009, by agreement between Ms Erasmus and the
RAF, an order was made by the Court under the hand of His Lordship Mr Justice
Shongwe DJP. Of relevance to the present application , it was ordered that: -
"2 To provide Plaintiff [Ms Erasmus] with an undertaking in terms of section
17(4)(a) of the Road Accident Fund Act No. 56 of 1996, limited to 90%, for the
costs of the future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering of a service to her or supplying of goods to her
arising out of the injuries sustained by her in a motor vehicle collision which
occurred on 26 April 2002, after such costs have been incurred and upon proof
thereof."
2 The applicant, for some unconvincing reasons, chose not to compel the RAF to heed the call, as it is
customarily done. As it was confirmed in Helen Suzman Foundation v Judicial Service Commission
2018 (4) SA 1 (CC), a rule 53 record, although benefitting an applicant for review, it also assists a Court
to perform its review functions.
3
[4] On or about 7 July 2009, the RAF, in compliance with the agreed to order, issued
an undertaking in favour of Ms Erasmus, which provided as follows: -
"UNDERTAKING IN TERMS OF SECTION 17(4)(A) OF THE ROAD
ACCIDENT FUND ACT. 1996 (ACT 56 OF 1996), AS AMENDED
THE ROAD ACCIDENT FUND, (hereinafter referred to as the FUND)
Having settled the claim for compensation under Section 17 of the Road
Accident Fund Act, 1996 ... , lodged with the FUND, by SONJA ERASMUS ,
Identity Number ... under the FUN D's CLAIM NUMBERS : ... , Link number: ... ,
and was litigated out of the HIGH COURT OF SOUTH AFRICA (TRANSVAAL
PROVINCIAL DIVISION), under Case Number ... , arising from the motor
vehicle accident which occurred on 26 APRIL 2002, at or hear EDENVALE ,
PRETORIA STREET, GAUTENG PROVINCE .
Places on record that it has been agreed between the parties that the
CLAIMANT shall be entitled to 90% of his/her proven damages emanating from
the collision as contemplated by Section 17 of the Act
Undertakes under section 17(4)(a) of the said Act to compensate the
CLAIMANT for the costs of future accommodation in a hospital or nursing home
or treatment of or rendering of services or the supplying of goods to the said
CLAIMANT after the costs have been incurred and on proof thereof.
[5] The undertaking was signed by an official of the RAF and Ms Erasmus. On 22
June 2020, Ms Erasmus made a request to the RAF for a preauthorisation for
the payment of the costs related to a medical procedure to be performed on 8
July 2020. It is apparent that Ms Erasmus submitted this request in the belief that
the terms of the undertaking afforded her the right to place such a request.
Allegedly, such requests were effortlessly r:r,ade and honoured in the past. Again,
on 16 November 2021, Ms Erasmus made another request for the procedure to
be performed on 31 November 2021.
[6] On 30 June 2020, the RAF communicated to Ms Erasmus, the following, with
regard to the request for preauthorisation made on 22 June 2020: -
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"Good day Mrs Erasmus, I have received feedback from the head office today
and your request for preauthorization of the requested procedure has been
declined on the basis that the RAF does not assume liability for the procedure
as it is not directly connected to the injuries sustained in the accident in 2002."
[7] On 3 March 2022, the RAF communicated to Ms Erasmus, the following, with
regard to the request made on 16 November 2021: -
"The Fund hereby declines request Surgical Intervention For thoraco-lumbo­
sacral spine ...
Above Request Declined by Medical Advisor as per Below Medical Reasons
... Funding of this procedure is not supported as no nexus could be established
between the claimant's back problems and the injuries she sustained in the
accident.
[8] Notwithstanding the reasons outlined in the communication of 30 June 2020, on
or about 19 October 2021, Ms Erasmus launched a request for access to records
of a public body in terms of section 18(1) of the Promotion of Access to
Information Act, 2000 (Act No. 2 of 2000) (PAIA) and described the record sought
to be accessed or the relevant part thereof as follows: -
"Complete record of findings of the medical review panel and full reasoning
behind rejection for pre-authorisation of back surgery on or about June 2020
for Ms Sonja Erasmus ...
[9] On 13 December 2021, the RAF indicated to Ms Erasmus' attorneys of record
that it was struggling to obtain the entirety of the file contents. It is apparent that
no further steps as contemplated in the PAIA were taken by Ms Erasmus3. It is
also apparent that on 25 October 2021, another PAIA request was made, but the
RAF provided, what Ms Erasmus considered to be, irrelevant information with no
reasoning process at all. As indicated above in October 2022, the present
application was launched.
Evaluation
3 Sections 74-78 of PAIA provides remedies for failure to heed a request.
5
[1 O] In the present constitutional era, two judicial review pathways are available
where an exercise of public or statutory powers is involved. Those are; (a) the
PAJA review; and (b) the legality or rationality review. A PAJA review is reserved
for administrative actions as defined in the PAJA. A legality review is reserved for
the exercise of public power that is either unlawful; irrational or arbitrary. It is
significant to mention that a PAJA review must be brought in terms of section 6
read with section 7 of the PAJA. Section 6(1) of the PAJA, specifically provides
that any person may institute proceedings in a Court or tribunal for the judicial
review of an administrative action. In terms of section 6(2) of the PAJA, the power
to judicially review an administrative action is to be confined to the grounds
specified in sections 6(2)(a)-(i) of the PAJA.
[11] Accordingly , any party, seeking to judicially review an administrative action, must
predicate the review application on any or all of the grounds specified in section
6(2). Such grounds ought to be specifically pleaded in the founding affidavit.
Nowhere in the founding affidavit does Ms Erasmus remotely mention section 6
of the PAJA. It is perspicuous that Ms Erasmus has not launched a PAJA review.
It is trite that in motion proceedings a party stands and fall by the allegations
made in the founding affidavit. Ms Erasmus pinned her colours to the mast and
testified as follows: -
"14.8 In the premises, it is submitted that on the principle of legality and
rationality, the decisions of the RAF to refuse to compensate me for medical
expenses as set out in paragraph 5 supra, should be reviewed and set aside."
[12] Undoubtedly , hers is a legality and rationality review as opposed to a PAJA
review. In my view, any party seeking to launch a PAJA review, must of necessity
plead that the decision so impugned amounts to an administrative action as
defined in section 1 of the PAJA. Pleading as such, engages the jurisdiction of a
Court in terms of the PAJA. A finding that a decision is not an administrative
action as defined in section 1 of the PAJA dislodges a judicial review from the
parameters of the PAJA.
[13] lmpermissibly , in the heads of argument , counsel for Ms Erasmus placed heavy
reliance on PAJA as if a PAJA review was pleaded. Since this Court takes a view
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that this is not a pleaded PAJAjudicial review, it is obsolete to entertain any legal
argument annexed to any of the provisions of the PAJA. In any litigation, the duty
of a Court is to determine or decide a case as pleaded. Differently put, a Court is
confined to the four corners of the pleaded case. In order to determine what case
has been presented for a decision of the Court, a judge must look to the founding
affidavit. The founding affidavit in the present matter does not mention the PAJA
or a decision alleged to be an administrative action.
[14] In a legality judicial review, which the present application is one, there is no time
period prescribed within which to launch a review application. The time periods
mentioned in section 7 of the PAJA finds no application in this instance. In a
legality judicial review, a condonation application is not required. Thus, the
provisions of section 9 of the PAJA finds no application in the present instance.
What finds application is the common law rule of undue or inordinate delay. In
terms thereof, a two-stage enquiry is contemplated. Firstly, a factual enquiry must
be conducted to determine as to whether an inordinate delay is present or not.
Secondly, if an inordinate delay is present, whether in all the circumstances the
delay is excusable or not. In a legality review, different approach to inordinate
delay was found to be applicable by the Constitutional Court4.
[15] As indicated at the dawn of this judgment, this Court shall depart from the
premise that there was an inordinate delay and such a delay is, in the interests
of justice excused. In a legality review, there are basically three legs to challenge
a decision, which must be an exercise of statutory or public power; namely; (a)
lawfulness; (b) rationality; or (c) arbitrariness . With regard to lawfulness , the only
question is whether the decision complies with the legal prescripts , if any have
been prescribed5. The key question in this instance is whether the RAF was
exercising statutory or public power or not when it declined the preauthorisation
requests. It has been acknowledged by the Constitutional Court that a
determination whether a public function is involved is an unenviable difficult task6.
The fact that the actor is an organ of state is not and should not be decisive. The
4 See SITA SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC)
5 See Minister of Defence v Motau 2014 (5) SA 69 (CC).
6 See Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).
7
nature of the function performed , often times, provides the much needed
guidance as to whether an exercise of public power is involved. In my considered
view, there is no exercise of statutory or public power involved herein. The power
located in section 17(4)(a) of the RAFA is the power to be exercised by a
competent Court, if a claim for the costs of the future accommodation ; treatment
or supply of goods is included. In this instance, the Court has already exercised
that statutory power and directed the RAF to provide an undertaking and the RAF
duly obliged.
[16] Of particular significance is that the direction to the Fund or its agent is to
undertake to compensate only after the costs have been incurred and the proof
thereof is furnished . In the present instance, Ms Erasmus did not incur the costs
at all. Nowhere in the agreed to Court order is it ordered that Ms Erasmus must
seek and be furnished with a preauthorisation . As to why that approach was
taken, this Court is unable to comprehend . It may have been an internal practice,
but it is not one that is legislated or ordered. The Court order is, in line with the
enabling section, lucid and clear. First incur the costs and thereafter submit proof.
Once that is done, the statutory duty to compensate as undertaken arises.
[17] On 7 July 2009, the RAF complied with the order of the Court. What the RAF was
ordered to perform was to furnish an undertaking and it duly did. Where a Court
orders a person to perform a particular act and that person fails to perform as
ordered, the remedy of the aggrieved person is to approach a Court for a
contempt order. However, on the facts of the present application , a case for
contempt is not makeable at all. The RAF has complied.
[18] When the RAF refused a preauthorisation , which was not ordered by the Court,
the RAF was not acting in contempt. Importantly , the RAF, in refusing to
preauthor ise, it was not exercising a statutory or public power. There is nothing
public about the RAF refusing to accede to a request of a claimant, which is not
predicated on any Court order or a statutory provision. Even if the
preauthorisation was, on any benign interpretation , obliquely predicated on the
Court order, such refusal would, at the minimum, only amount to a breach of a
Court order as opposed to an exercise of a statutory or public power susceptible
to a judicial review either on the PAJA or legality basis.
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[19] Although this Court has established that the PAJA review had not been pleaded,
a refusal to preauthorise the two procedures , in this Court's considered view,
does not amount to an administrative action as defined in section1 of the PAJA.
When regard is had to the reasons advanced by the RAF for the refusal, it is
beyond perspicuous that no exercise of public power was involved. According to
the RAF, rightly or wrongly so, the undertaking , as ordered and given, is confined
to damages emanating from the collision. The factual question whether the
contemplated procedures relate to the collision injuries is more a matter of
medical opinion. When the RAF expressed such an opinion, in the view of this
Court, no exercise of a statutory or public power was involved.
[20] An undertaking is effectively a contract concluded between the RAF and the
claimant, in this instance, Ms Erasmus. Failure to perform in terms of a contract
constitutes a breach and or repudiation . Such happening entitles the aggrieved
party to make an election whether to cancel the contract and sue for damages or
insist on specific performance. The known remedies for a breach of contract are
(a) a specific performance claim or alternatively (b) a damages claim after an
election to cancel has been made by the aggrieved . A submission that the
undertaking is an empowering document as contemplated in section 1 of the
PAJA is without merit. If anything, in using the agreed to terms of the undertaking
to refuse the preauthorisation , the RAF will certainly be exercising a contractual
power as opposed to a statutory or public power. Such an exercise of power is
not reviewable under the PAJA or legality judicial pathway7. It is a misguided
suggestion to suggest that the RAF is exercising section 17(4)(a) powers. As
dealt with above a competent Court is empowered to order the RAF to furnish an
undertaking and all the RAF must do is to comply. There are no powers reserved
for the RAF in section 17(4). This Court is alive to a raging debate as to whether
exercise of contractual power by an organ of state may or may not involve
administrative law principles8. However, to my mind, if there is any contractual
power exercised by the RAF, in this particular instance, there is no element of
7 See Cell C Service Provider (Ply) Ltd v MEG: Free State Provincial Governme nt Department of
Treasury [2019] All SA 80 (FB).
8 See SANParks v MTO Forestry (Pty) Ltd and Another (2018] (5) SA 177 (SCA) and Vodacom (Pty)
Ltd v National Commissioner of Police and others (18770/2022) dated 17 March 2023 and the
authorities cited therein.
9
coercion involved. It is a question of whether the damages emanate from the
2002 accident or not. The question whether the damages covered are only those
emanating from the accident is a matter involving the interpretation of the terms
of the undertaking and nothing more. A claim for breach of contract will certainly
remedy the situation as opposed to a legality review. A legality challenge is
reserved for cases involving bureaucratic actions of the state or its organs. In a
pure breach of contract claim, Ms Erasmus may lead evidence to demonstrate
that, as contemplated by the terms of the contract allegedly breached, the
contemplated procedures emanate from the accident injuries. It will be chaotic to
suggest that in any breach of contract claim, once the state or its organ is
involved, an exercise of public power emerges to a point that a legality challenge
may be indiscriminately mounted.
[21] A further observable fundamental difficulty for Ms Erasmus is that the undertaking
specifically provides that compensation is possible only after the costs have been
incurred and a proof thereof is furnished . This term of the undertaking is
specifically provided for in section 17(4)(a) of the RAFA. In other words, the
jurisdictional requirements for the decision to compensate is first the incurring of
the costs and the proof thereof. All the more reasons why the claim is purely
contractual. First incur, exhibit proof and then demand payment. Elementarily , if
Ms Erasmus proves incurrence , prima facie, she is entitled to compensation .
Refusal to compensate is nothing but the breach of the undertaking , which must
equate a breach of contract claim. Clearly, Ms Erasmus takes a view that her
entitlement to be compensated arises from the provisions of the undertaking as
she interprets it. According to her, as provided for in the undertaking , the
procedures are linked to the injuries she sustained in a motor vehicle collision
some 20 years ago.
[22] As indicated above, section 17(4) of the RAFA, empowers a competent Court to
order furnishing of an undertaking and not the RAF itself. The section does not
empower the RAF to issue any preauthorisation . Accordingly , by deciding to
refuse the preauthorisation , the RAF does not in any manner or form breach
section 17(4) nor act unlawfully . It may well be so that it is acting in breach of the
undertaking , which is nothing but a breach of contract claim.
10
[23] Irrationality only occurs when, in the exercise of statutory or public power, the
repository of power acts contrary to the stated purpose of the statutory power9.
This Court, firmly holds a view that in refusing to preauthorise, the RAF did not
exercise a statutory or public power. That should then mark the end of the enquiry
with regard to rationality . Nevertheless, as A/butt informs us that the duty of a
Court in a rationality exercise is to assess the means employed by the decision
maker as opposed to a Court acting as a repository of powers. The purpose of a
section 17(4) undertaking is to compensate for injuries emanating from the
accident. If indeed the procedures that were to be performed some 20 years later
are not linked to the collision injuries, then the means employed by the RAF to
refuse preauthorisation is rational as it serves the purpose of the power.
Conclusions
[24] In summary, Ms Erasmus having not pleaded a PAJA review, she is not permitted
to, only in argument , punt for a PAJA review. The impugned decisions are
nevertheless not administrative actions. The RAF having complied with the Court
order, it cannot be accused of contempt nor any exercise of a statutory or public
power. The RAF in refusing to preauthorise , it exercised no public power nor
acted unlawfully. Since no exercise of public power is involved; the element of
rationality does not feature at all.
[25] For all the above reasons, I make the following order:
Order
1. The application for review is dismissed .
2. There is no order as to costs.
9 See A/butt v Centre for the Study of Violence and Reconcilia tion and others 2010 (5) BCLR 391 (CC).
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APPEARANCES
For the Applicant:
Instructed by:
For Respondent:
Date of hearing:
Date of judgment:
12 GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Mr R W Grunder
Steven G May Attorneys, Sandton
No appearance.
7 March 2025
12 March 2025