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, BHISHO)
CASE NO: 92/2023
NOT REPORTABLE
In the matter between
N[...] C[...] D[...]
OBO “HD” (HER MINOR CHILD) Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT IN RESPECT OF
SEPARATED ISSUE OF TRIAL
HARTLE J
[1] The plaintiff sues in her representative capacity on behalf of her minor son who
was injured in a motor vehicle accident at Mdantsane, East London , on 10 April 20 22,
whilst a passenger in a motor vehicle.
[2] The particulars of claim allege that the driver wa s negligent and that as a result
thereof her child suffered serious injuries and consequently general damages, loss of
capacity and earnings.
[3] Also alleged, going to the issue of compliance, is that the plaintiff complied with
the provisions of the Road Accident Fund Act, No. 56 of 1996 (“RAFA”) in lodging the
claim on her son’s behalf.
[4] In the plea the Fund only admitted the allegations concerning its own existence ,
address for service and general obligation on it to compensate victims of road accidents
pursuant to the provision of section 17 of the RAFA. The obvious import of this is that
the plaintiff is required to establish both locus standi to represent her son as well as the
fact that she complied with the provisions of the RAFA in lodging a compliant claim.
[5] It is a trite principle that the obligation under the RAFA p laced on the Fund to
consider the seriousness of an injury is an administrative one and that a court is
precluded from adjudicating a claim for general damages until such time as the Fund
has determined this jurisdictional ground before any compensation fo r non-pecuniary
damages can be considered by it.1
[6] The fate of this action is quite unfortunate.
[7] Initially there was an application for default judgment in the absence of the Fund
having filed a notice of intention to defend. See order dated 6 June 202 2. In the
application the plaintiff succ essfully claimed an order at least declaring that the
defendant was liable for the injuries sustained by the child and directing the Fund to pay
1 Maqhutyana and Another v Road Accident Fund (CA 17/2020) [2021] ZAECMHC 30 (17 August 2021).
100% of the damages suffered by him , resulting from the accident. By agreement,
since the Fund was represented by Mr. Mlinganiso at the default judgment proceedings,
the plaintiff’s further claims relating to quantum were postponed sine die.
[8] It is u nclear if that order was rescinded because the defendant filed its pela
subsequently on 20 July 2023.
[9] Be that as it may o n 26 March 20 24, and in order to remove the encumbrance
that the child’s claim for general damages was not justi ciable, the plaintiff was
constrained to seek a review order compelling the Fund to get on with its statutory
obligation to consider whether the plaintiff’s child’s injuries were serious within the
meaning of section 17 (..) of the RAFA read together with regulation 3 (3)(c) or 3 (3)(d)
of the RAF Regulations, 2008 (Reg 31249).
[10] Despite the plaintiff’s allegations in the particulars of claim that the child’s whole
person impairment was clinically evaluated at 22% but that she nonetheless considered
his injuries to be “ serious” on the ground that he qualifies under paragraph 5.1 of the
“Narrative Test”, the court first hearing the review application directed the plaintiff to
furnish proof that the RAF 4 Form was served on the Fund.
[11] An order was consequently granted by this court on 11 April 2024 directing the
Fund to make a decision whether or not the claimant’s injuries were serious in terms of
the method provided in the RAF Regulations.
[12] It is evident that until today this order has not been complied with.
[13] The matter was thereupon enrolled for trial.
[14] At the pre -trial conference the Fund made absolutely no input regarding the
material issues still then in contention between the parties , proffering as a standard
refrain that “ the defendant’s attorney undertakes to take instructions and revert ”.
Evidently these instructions were never forthcoming.
[15] The standard refrain was also applied to a discovery related question as well,
which resulted in a further unnecessary application against the defendant to compel
discovery. That application enrolled for hearing on 3 October 2023 was however
evidently struck from the roll.
[16] On 19 November 2024, upon the enrolment of the action for trial, th is court
issued an order on a default basis , that is in the absence of any representative on
behalf of the defend ant, again directing that the defendant is declared 100% liable for
any agreed or proven damages suffered by the plaintiff’s child as a result of the
accident. The court adjourned the matter in respect of quantum to 4 February 2025.
[17] In November 2024 the plaintiff sought an order in the East London Circuit Court,
citing jurisdiction, under the provisions of the Promotion of Administrative Justice Act,
No. 3 of 2000 (“PAJA”), review and setting aside the Fund’s objection to the validity of
the plaintiff’s claim purportedly in terms of section 24 (5) of the RAFA and related relief.
The application was initially opposed but ultimately disposed of as an uncontested
opposed application on 15 April 2025 when the court issued an order in the followin g
terms:
“1. The Respondents objection the validity of the Applicants claim purportedly in
terms of section 4 (5) of the Road Accident Fund Act, 1996 (Act 56 of 1996)
(“the Act”) be and is hereby reviewed and set aside.
2. The Applicants claim was duly lodged with the Respondent on the 21 st of
October 2024, and that it substantially complies with the provisions of Road
Accident Fund Act, 56 of 1996 as amended.
3. The Respondent is hereby ordered, forthwith, to register and administer the
Applicants claim in its system in terms of the provisions of the Road Accident
Fund Act, 56 of 1996 as amended.
4. The Respondent to pay the Applicants costs on scale A.”
[18] To track back to what was happening with the litigation itself on 4 February 2025
the matter was postponed to 29 April 2025 for trial on quantum. On 29 April 2025 the
matter was postponed to 10 June 2025. On 10 th it was rolled until the 11 th and then to
today’s date to explore if administratively the defendant budge on the basic fact of
compliance.
[19] This is purportedly the issue and reason why the matter has not gotten out of the
starting blocks, so I was informed by Mr. Mlinganiso who appeared on the defendant’s
behalf, registration compliant on their computer system , according to the Fund it does
not rega rd the plaintiff’s claim , which explains why no offers would have been
forthcoming in the claim to it and why serious injuries could not be assessed to date.
[20] At the hearing before me on Thursday, 12 June 2025, the plaintiff sought leave to
defer the issue of quantum and I directed that the parties deal separately with the issues
of locus standi and registration compliance from the Fund’s system’s point of view as
these are the factors which has caused the Fund to treat the claim as not existent, this
even despite the order of this court granted on 15 April 2025 declaring that the plaintiff
is so compliant.
[21] The plaintiff herself testified that she birthed her child who is the subject of the
claim and the present action on 24 December 2008 . She is further recognized as his
legal guardian.
[22] She tendered into evidence his birth certificate which records his d ate of birth but
not who his parents are. This would ordinarily reflect in an unabridged birth certificate
which it seems the defendant is insistent upon as satisfying its “ system” that the claim is
recognized.
[23] Mr. Nohaji, the plaintiff’s attorneys of re cord also testified. He confirmed that the
plaintiff and her family are co-incidentally neighbours and well known to him. He related
that he had properly responded to all the Fund’s requirements raised on registration,
which were particularized in a letter dated 21 August 2024 bar the unabridged
certificate.
[24] His testimony further revealed however that he had issued out the PAJA
application referred to above in which this court has definitely ruled that the plaintiff has
substantially complied with the provisions of the RAFA concerning lodgment of the
claim.
[25] Even this order has been ignored by the Fund who seems to imagine that it
enjoys immunity from court directed instructions and can simply insist on its
administrative processes as justification for such a stance.
[26] I issue the following order:
1. It is declared that the plaintiff has locus standi on behalf of her minor child to
have both lodged the claim on behalf of her son under the provisions of PAJA
and to have instituted the present action.
2. It is declared again that the plaintiff has established the necessary
requirements for registration of the claim.
3. The Fund is directed forthwith to enter the claim on its system as registered
and to asses s it within fifteen (15) days and thereanent to make an
appropriate offer in respect of the child’s claims for statutory compensation.
4. The defendant is liable for the costs of the proceedings today, and of 10 and
11 June 2025, on Scale A.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 12 June 2025
DATE OF JUDGMENT : 13 June 2025
Appearances:
For the applicant: Mr. M E Bishotti instructed by Cinga Nohaji , East London (ref. Mr.
Nohaji).
For the defendant: Mr. B Mlinganiso of the State Attorney, East London c/o Shared
Legal Services, King William’s Town (ref. Mr. Mlinganiso).