About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2020
>>
[2020] ZASCA 158
|
|
Road Accident Fund v Busuku (1013/19) [2020] ZASCA 158; 2023 (4) SA 507 (SCA) (1 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1013/19
In
the matter between:
ROAD
ACCIDENT FUND
APPELLANT
and
ZUKO
BUSUKU
RESPONDENT
Neutral
citation:
Road
Accident Fund v Busuku
(Case no 1013/19)
[2020] ZASCA 158
(1
December 2020)
Coram:
WALLIS, MOCUMIE and DLODLO JJA and EKSTEEN and WEINER AJJA
Heard
:
17 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives
via email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed
to be 10h00 on 1 December 2020.
Summary:
Section 24 of
Road Accident Fund Act 56 of 1996
– failure
to complete ‘Medical Report’ section of RAF 1 form –
submission of hospital records together
with lodgement of claim
constituting substantial compliance with
s 24(1)
and (2)
(a)
of
Act – failure of the Fund to object within 60 days –
claim deemed to be valid in all respects.
ORDER
On
appeal from:
Eastern Cape Division of the High Court, Mthatha
(Nhlangulela and Majiki JJ, Bloem J dissenting, sitting as court of
appeal):
1
The orders of the High Court, Mthatha and the Full Court, Eastern
Cape
Division, are set aside and are substituted by the
following:
‘
The
special plea is dismissed with costs.’
2
Save as above, the appeal is dismissed with costs.
JUDGMENT
Eksteen
AJA (Wallis,
Mocumie and Dlodlo JJA and Weiner AJA
concurring)
[1]
This appeal turns on the interpretation and application of s 24 of
the Road Accident
Fund Act 56 of 1996 (the Act). Mr Busuku, the
respondent, claimed damages from the appellant (the Fund) in respect
of future medical
expenses, loss of earning capacity and general
damages suffered as a result of bodily injury sustained in and as a
result of a
motor vehicle accident, which occurred while trying to
avoid a collision, on 21 June 2012. The Fund raised a special plea
contending
that the plaintiff had failed to deliver a medical report
to it as contemplated by s 24(1) and (2)
(a)
of the Act and
that his claim has accordingly become unenforceable against it. I
shall revert to the provisions of s 24.
[2]
In the High Court, Mthatha (the trial court) Alkema J upheld the
special plea and
dismissed his claim. He successfully appealed to the
Full Court of the Eastern Cape Division (the court
a quo)
where the majority (Nhlangulela and Majiki JJ) set aside the order of
the trial court and referred the matter back to it to consider
the
special plea afresh. The minority (Bloem J) agreed with the
conclusion of the trial court. The current appeal against the
judgment of the court a quo is with special leave of this Court.
[3]
The factual background to the dispute is as follows. Mr Busuku had
sustained a severe
closed head injury as a result of a motor vehicle
collision with an unidentified vehicle. His claim was predicated, as
it had to
be, on s 17(1)
(b)
of
the Act.
[1]
On 30 April 2014 he caused his claim, set out on the prescribed RAF 1
form, to be lodged with the Fund.
[2]
However, the final portion of the form which provides for the medical
report was not completed. In its stead Mr Busuku submitted
a copy of
the original records of the Mthatha Hospital which reflected
particulars of his hospitalization, the medical assessment
of his
condition from time to time, medical treatment received and surgical
procedures carried out together with the identity of
the doctors
involved therein. The hospital records were, of course, handwritten
and, in part, they were difficult to decipher.
[4]
The delivery of the claim elicited no response from the Fund and a
serious injury
report was subsequently delivered on 1 September 2014,
which has been accepted as correct. The serious injury report is a
prerequisite
for compensation in a claim for non-pecuniary loss as
contemplated in s 17(1).
[5]
On 24 October 2014 Mr Busuku issued summons, which was initially met
only with a plea
on the merits. In November 2015 the Fund amended its
plea to introduce the special plea. The material portion of the
special plea
records:
‘
1.
. . .
2.
The plaintiff lodged an RAF 1 claim form with the defendant in terms
of the Act
on the 30
th
April 2014 . . .
3.
. . . (T)he plaintiff’s claim against the defendant, is in
terms of Section
17(1)
(a)
&
(b)
of the Act, and as
such is subject to the requirement of the Section 24, and more
specifically Section 24(1) & (2)
(a)
which prescribes that
the statutory medical report shall be completed on the prescribed
form by the medical practitioner who treated
the . . . injured
person for the bodily injuries sustained in the accident from which
the claim arises (or his or her representative),
of the hospital
where the . . . 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 nature
and the treatment
of the bodily injuries in respect of which the
claim is made.
4.
The plaintiff failed to comply with the requirements of Section 24(1)
and sub-section
(2)
(a)
in that the period within which to
lodge the statutory medical report has lapsed.
5.
In the circumstances the plaintiff’s claim herein, as pleaded
in his Particulars
of Claim, has become prescribed against the
defendant, or alternatively is no longer enforceable against the
defendant.’
[6]
Before I turn to consider the legislative framework applicable to the
special plea
it is necessary to reflect on the principles relating to
the interpretation of the Act. The principles generally applicable to
the interpretation of documents are well settled and have been
repeatedly restated in this Court.
[3]
In considering the context in which the provisions appear and the
purpose to which they are directed it must be recognized that
the Act
constitutes social legislation and its primary concern is to give the
greatest possible protection to persons who have
suffered loss
through negligence or through unlawful acts on the part of the driver
or owner of a motor vehicle.
[4]
For this reason the provisions of the Act must be interpreted as
extensively as possible in favour of third parties in order to
afford
them the widest possible protection.
[5]
On the other hand, courts should be alive to the fact that the Fund
relies entirely on the fiscus for its funding and they should
be
astute to protect it against illegitimate or fraudulent claims. In
the current matter there has, however, been no suggestion
of any
illegitimate or fraudulent claim.
[7]
There is also the further consideration explained by Nestadt JA in
Multilateral Motor Vehicle Accident Fund v Radebe
[1995] ZASCA 80
;
1996 (2) SA
145
(A) at 152E-I where he 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 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 early investigation of the
case. In addition, it also promotes the saving
of the costs of
litigation . . . These various advantages 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.’
Bearing
these principles in mind the legislation must be interpreted
contextually, purposefully and holistically.
[6]
[8]
As I have said, Mr Busuku’s claim was predicated on s 17(1)
(b)
.
The section provides for compensation ‘subject to any
regulation made under s 26’.
[7]
Regulation 2 provides for the prescription of a claim under s
17(1)
(b)
and the
material portion records:
‘
(1)(a) a claim for compensation referred to
in s 17(1)
(b)
of the Act shall be sent or delivered to the
Fund in accordance with the provisions of s 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 s 17(1)
(b)
of the Act
in respect of the loss for 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 the period of two years from
the date upon which the cause
of action arose, unless a claim has been lodged in terms of para (a).
(c) In the
event of a claim being lodged in terms of para (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.’
Regulation
7 prescribes that a claim for compensation and accompanying medical
report referred to in s 24(1)
(a)
of the Act shall be in the
Form RAF 1 which is attached as an annexure to the regulations.
[9]
That brings me to s 24 which lies at the heart of the special plea.
It requires that
the claim for compensation and the accompanying
medical report shall be set out in the prescribed form, being the RAF
1 form.
[8]
The essence of subsec 2
(a)
is recorded in the special plea. It requires the medical report to be
completed on the RAF 1 form by the doctor who treated the
injured
person for the injuries which form the subject of the claim, or by
the superintendent (or their representative) of the
hospital where
the injured person was treated for such bodily injuries. In the event
that the medical practitioner or superintendent
(or their
representative) 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 may become prescribed the medical report
may be completed by another medical practitioner who
has fully
satisfied himself or herself regarding the nature and the treatment
of the bodily injuries.
[10]
Section 24 provides further that any form referred therein, which
includes the RAF 1 form, which
is not completed in all its
particulars shall not be acceptable as a claim under the Act.
[9]
Nevertheless, whatever shortcomings there may be in a claim form duly
delivered, the claim shall be deemed to be valid in law in
all
respects unless the Fund, within 60 days from the date upon which the
claim was delivered, objects to the validity thereof.
[10]
[11]
I turn to the findings of the courts below. In upholding the special
plea the trial court considered
these sections of the Act and
concluded:
‘
Three consequences flow from the aforesaid:
first, the claim and accompanying medical report must be set out on
Form RAF 1 (which
constitutes the prescribed from), 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 s 24(1)
(a)
of the Act are taken seriously, the submission
of the claim and accompanying report must comply strictly with the
statutory requirements
which are peremptory.’
[12]
Later, the trial court proceeded to consider s 24(5). It concluded:
‘
The medical report left in blank, is in my view,
tantamount to a medical report not having been lodged at all, and
thus to a total
lack of compliance with s 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
s 24(5).’
[13]
The argument on behalf of the Fund in this Court supported the
correctness of these findings
by the trial judge. By contrast, the
Full Court considered that the trial judge had failed to enquire
whether or not the hospital
notes and the subsequently submitted RAF
4 assessment report satisfied the provisions of s 24(2)
(a)
,
hence the reference back to the trial court.
[14]
For the reasons which follow the findings of the trial court cannot
be supported. The special
plea proceeds on an acceptance that the
claim was timeously lodged in terms of the Act on 30 April 2014.
[11]
The complaint relates exclusively to the absence of the ‘accompanying
medical report’ which forms part of the RAF 1
form. In respect
of the submission of a claim this Court, in
Pithey
,
held:
[12]
‘
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 Limited v Pretorius
”
reiterated that the test for substantial compliance is an objective
one.’
[13]
This
approach is confirmed by the terms of the form which says in part 20
that substantial compliance is required in regard to inter
alia the
medical report.
[15]
I have referred earlier to the objectives of the Act and the approach
to its interpretation.
In the context of the Act the purpose of the
early submission of the claim form is to enable the Fund to
investigate the merits
of a plaintiff’s claim in order to
consider its approach to the pending litigation before costs are
incurred. By parity of
reasoning the medical report is intended to
enable it at an early stage to investigate the cause and seriousness
of a plaintiff’s
alleged injuries in order to make an offer to
settle the claim, if so advised. Section 24(2) seeks to ensure
the reliability
of the information provided, primarily to protect the
Fund against fraud, by requiring the form to be completed by the
treating
doctor, the superintendent of the hospital or their
representative, as the case may be. In the event of their failure to
comply,
the form may be completed by another doctor who has satisfied
himself of the nature and treatment of the injury. Where, one might
rightly ask, would the superintendent of the hospital, or any other
doctor, source such information from? It seems to me that they
could
only acquire such information from the hospital records.
[16]
The RAF 1 form does not call for detailed information. It is not
intended, of itself, to enable
the Fund to assess the quantum of the
plaintiff’s claim. It seeks to enable it to investigate the
impact of the injuries
sustained. In order to do so the RAF 1 form
requires the disclosure of information to guide and facilitate the
investigation. On
the first page of the ‘medical report’
section of the form it seeks particulars of any emergency transport
which had
been required; whether the plaintiff had been hospitalized,
and if so, whether he was in ICU. All of this was contained in the
hospital records. The third page of the report requires the provision
of particulars of the medical facilities where treatment was
received
and the identity of practitioners who treated the plaintiff. This,
too, was recorded in the hospital records.
[17]
On behalf of the Fund it was argued that not all the information
called for in the claim form
could have been gleaned from the
hospital records. The argument may be accepted. However, the
provision of a duly completed RAF 1
form, including the
accompanying medical report is a procedural requirement prescribed
only by s 24 of the Act. It has always been
common cause that a
claim, set out on the RAF 1 form, had been lodged in terms of the
Act. The RAF 1 form consisted of 14 pages.
The claim, requiring the
personal particulars of Mr Busuku and information relating to the
occurrence comprised the first ten pages
thereof. It concluded with
the declaration signed by Mr Busuku that, to the best of his
knowledge, the information provided in
the claim form was true and
correct. The blank medical report followed thereafter.
[18]
The hospital records were submitted together with the claim in order
to enable the Fund to investigate
the significance of the injuries
sustained by Mr Busuku. They contained most of the information
called for in the RAF 1 form.
In my view, furnishing medical records
constituted substantial compliance with the requirements of s 24 in
this case. There was
no suggestion that any significant information
demanded by the form was missing.
[19]
Irrespective of whether the hospital records constituted substantial
compliance there is another
compelling reason why the appeal cannot
succeed. I have alluded earlier to the purpose of the medical report.
In this regard the
comments of Galgut AJA in
Constantia Insurance
Co Ltd v Nohamba
1986 (3) SA 27
(A) at 39G-H, with reference to
the claim form are appropriate where he stated:
‘
As we have seen from the
Commercial Union
case supra at 157 [
Commercial Union Insurance Co of South Africa
Ltd v Clarke
1972 (3) SA 508
(A) at 517E] and the
Gcanga
case supra at 865 [
AA Mutual Insurance Association Ltd v Gcanga
1980 (1) SA 858
(A)] the purpose of the form is to enable the
insurance to “enquire into a claim” and to investigate
it. It is designed
to “invite, guide and facilitate” such
investigation. It follows, in my view, that, if an insurance company
is given
sufficient information to enable it to make the necessary
enquiries in order to decide whether “to resist the claim or
settle
or compromise it before any costs of litigation are incurred”,
it should not thereafter be allowed to rely on its failure
to make
such enquiries.’
[20]
These sentiments resonate in the provisions of s 24(5). The purpose
of s 24(5), in the context
of the Act and bearing in mind the
principles of interpretation set out earlier, is to enable a
plaintiff who has timeously lodged
a claim, but has failed to comply
fully with the procedural requirement of s 24(1) and (2) to
remedy any deficiencies which
arise from the completion of the RAF 1
form. The medical report is part of the RAF 1 form, but it is a
report that accompanies
the claim, not the claim itself. Where
the Fund fails, within 60 days, to object to such deficiencies the
claim is deemed
to be valid in law in all respects. The effect
thereof is indeed to convert a claim which might otherwise be
unacceptable under
the Act, as provided in s 24(4)
(a)
,
into one deemed to be valid in all respects.
[21]
In
Thugwana v Road Accident Fund
[2005] ZASCA 14
;
2006 (2) SA
616
(SCA) para 6 to 8 this Court held that s 24(5) could not assist a
plaintiff in respect of non-compliance with matters on which the
statutory liability depended and not specified in s 24 itself. The
difference between a requirement on which liability depends
and one
which is procedural, to which s 24(5) applies, was helpfully
discussed in
Road Accident Fund v Beerwinkel
[2009] ZAWCHC 97
para 8 to 12. As the requirement for the accompanying medical report
arises from the provisions of s 24 itself, s 24(5) is conclusive
of
the issue.
[22]
For these reasons the appeal must fail. By virtue of the conclusion
to which I have come, however,
there can be no purpose in referring
the matter back to the trial court to consider the special plea
afresh. The appropriate order
is for the special plea to be
dismissed.
[23]
Finally, the question of costs remains. The matter is not
complicated. As I have said, the provisions
of s 24(5) clearly put
paid to the entire debate. In these circumstances it does not seem to
me to be a matter in which the employment
of two counsel was
justified.
[24]
In the result:
1
The orders of the High Court, Mthatha and the Full Court, Eastern
Cape
Division, are set aside and are substituted by the
following:
‘
The special plea is dismissed with costs.’
2 Save as
above, the appeal is dismissed with costs.
__________________________
J
W EKSTEEN
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: A
Jeffreys SC (with him P Mnqandi)
Instructed
by: Bonoko &
Maphokga Inc, Hatfield
Honey
Attorneys, Bloemfontein
For
respondent: H Pienaar SC
Instructed
by: Ximbi Ncolo
Inc Attorneys, Mthatha
Matsepes
Attorneys, Bloemfontein
[1]
Section
17(1)
(b)
provides
that the Fund or its agent shall: ‘
(b)
subject to any regulation made under s 26, in the case of a claim
for compensation under this section arising from the driving
of a
motor vehicle where the identity of neither the owner nor the driver
thereof has been established, be obliged to compensate
any
person(the third party) for any loss or damage which the third party
has suffered as a result of any bodily injury to himself
. . .
caused by or arising from the driving of a motor vehicle by any
person at any place within the Republic, if the injury
. . . is due
to the negligence or other wrongful act of the driver or the owner
of the motor vehicle or of his or her employee
in the performance of
the employee’s duties as employee: provided that the
obligations of the Fund to compensate a third
party for
non-pecuniary loss shall be limited to compensation for a serious
injury as contemplated in ss (1)A and shall be paid
by way of a lump
sum.’
[2]
Regulation 7(1) of the Regulations made under s 26 of the Act
provides: ‘A claim for compensation and accompanying medical
report referred to in s 24(1)
(a)
of
the Act, shall be in the Form RAF 1 attached as annexure A to these
Regulations, or such amendment or such substitution thereof
as the
Fund may from time to time give notice of in the gazette.’
[3]
See, for example,
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[4]
Road Accident Fund v Masindi
[2018] ZASCA 94
;
2018 (6) SA 481
(SCA) para 13.
[5]
See, for example,
Aetna Insurance Co v
Minister of Justice
1960 (3) SA 273
(A)
286E-F; and
Pithey v Road Accident Fund
[2014] ZASCA 55
;
2014 (4) SA 112
(SCA) para 18.
[6]
See
Assign Services (Pty) Ltd v National
Union of Metal Workers of South Africa and Others
[2018]
ZACC 22
;
2018 (5) SA 323
(CC) (26 July 2018) para 41.
[7]
The Road Accident Fund Regulations, GN R770,
GG
31249, 21 July 2009 apply.
[8]
Section 24(1)
(a)
.
[9]
Section 24(4)
(a).
[10]
Section 24(5).
[11]
Para 2 of the special plea set out earlier.
[12]
Fn 5 para 19.
[13]
In All Pay Consolidated Investment Holdings
(Pty) Ltd and Others v The Chief Executive Officer, South African
Social Security
Agency and Others
[2014]
ZACC 42
;
2014 (1) SA 604
(CC) para 30 the Constitutional Court
considered that the distinction between ‘peremptory and
“directory” statutory
provision’ was inappropriate
to find the purpose of the approach to the interpretation of the
statute.