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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
• YE$ I wo ·
YE$ T NO
Yd I NO
VIZ$ t HO
CASE NUMBER: 276/2023
In the matter between:
VICTORIA KELOAGETSWE LESHORI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Leshori v Road Accident Fund (276/2023) [2025] 15 August 2025
Coram: Stanton J
Heard: 21 July 2025
Delivered: 15 August 2025
Summary: Two special pleas - Serious injury assessment -Court does not have the
jurisdiction to determine the seriousness of the injury - Third special plea - Plaintiff
failed to comply with s 24 of the Road Accident Fund Act 56 of 1996 - Third special
plea is postponed pending the finalisation of the appeal in Legal Practitioners
Indemnity Insurance Fund NPC and Others v Road Accident Fund and Others.
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ORDER
1. The adjudication of the first and second special pleas pertaining to the plaintiff's
serious injury assessment is postponed sine die;
2. In respect of the defendant's first and second special pleas, the defendant shall
in terms of Regulation (3)(3)(c) and 3(3)(d) of the Road Accident Fund Act 56
of 1996 ("the Act''), within five days from the date of service of this order, decide
whether the plaintiffs injuries are serious, or not, and transmit the decision, in
writing, to the plaintiff's attorney of record;
3. In so doing, the defendant must:
3.1 Determine whether it is satisfied that the plaintiff's injuries, sustained in
the motor vehicle collision that occurred on 26 June 2020, have been
assessed as serious in terms of the method provided for in the Road
Accident Fund Regulations, and accordingly accept that the plaintiff
qualifies to claim for non-pecuniary loss; or
3.2 In the alternative to 3.1, reject the plaintiff's serious injury assessment
report (RAF 4 Form), and simultaneously furnish the plaintiff's attorney
of record with the written reasons for the rejection; or
3.3 In the alternative to 3.1 and 3.2 above, direct the plaintiff to submit
herself for further assessment, at the defendant's cost with a medical
practitioner appointed by the defendant, to determine whether the
plaintiff's injuries are serious, or not;
4. The third special plea pertaining to the plaintiffs non-compliance to s 24 of the
Act is postponed sine die, pending the finalisation of the appeal in Legal
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Practitioners Indemn ity Insurance Fund NPC and Others v Road A ccident Fund
and Others;
5. No cost order is granted.
JUDGMENT
Stanton J
Introduction:
[1] O n 09 February 2023, the plaintiff instituted an action for dama ges against the
Road Accident Fund ("the RAF ") arising from a motor vehicle accident that
occurred on 26 June 2020.
[2] The RAF defended the action and in addition to its plea on the merits, it raised
three special pleas: (a) two pleas pertaining to the assessment of the
seriousness of the plaintiff's injury in terms of s 17(1) of the Road Accident
Fund Act 56 of 1996, as amended , ("the Act") and its Regulations; and (b) the
plaintiff's failure to comply with s 24 of the Act.
[3] The parties agreed that the special pleas would be dealt w ith separately and
shall be argued on the pleadings and notices. I also ruled that the discovered
documents should be adm itted for this purpose.
Special pleas one and two- serious injury assessment:
[4] According to the first and second special pleas, which to my mind should be
considered as one special plea, the RAF, in essence, avers that:
4.1 This Court does not have the jurisdiction to assess whether the plaintiffs
injuries are serious, or not, and as a result, the plaintiff's claim for non-
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pecuniary loss should be dismissed, alternatively that the claim for
general damages should be referred to the appropriate forum, as set out
in the Regulations; and
4.2 The RAF prays that the plaintiff's claim be dismissed as the plaintiff failed
to submit a Serious Injury Assessment Report, and as such, the alleged
injury has not yet been determined as serious in terms of Regulations
3(4) to 3(14).
[5] The plaintiff did not file a replication to the special pleas.
The background
[6] On 01 September 2022, the RAF 1 form, together with annexures, but without
serious assessment reports (RAF 4), was transmitted to the RAF . The covering
letter notes that 'When a claimant has suffered a serious injury, a RAF 4 serious
injury assessment form will be made available on an urgent basis, but before
prescription." The covering letter also specifies that the following documents
were attached to the duly completed RAF 1 form and medical report:
6. 1 A copy of the accident report;
6.2 A copy of the docket received from Beaufort West SAPS;
6.3 An affidavit deposed to by the plaintiff in compliance with the provisions
of s 19(1) of the Act;
6.4 A copy of the sketch plan and key thereto;
6.5 A copy of the plaintiff's identity document;
6.6 Color photographs of the plaintiffs injuries;
6.7 Copies of the plaintiffs hospital records received from Kakamas hospital;
6.8 A copy of the plaintiff's pay slip;
6.9 A special power of attorney duly signed and stamped;
6.10 A consent form to enable the RAF to inspect the plaintiff's medical
records; and
6.11 A copy of the contingency fee agreement.
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[7] On 14 October 2022, the RAF acknowledged receipt of the plaintiff's claim, but
informed the plaintiffs attorney that no valid claim was lodged as there is no
substantial compliance to s 24(5), read with the RAF's Board Notice 271 of 2022
("the Board Notice"}, 1 as:
7 .1 The medical section of the RAF 1 form was not completed by the treating
doctor in terms of s 24(2)(a) of the Act; and
7.2 The failure to file:
7.2.1 The plaintiffs identity document;
7.2.2 Pay slips, post and pre accident;
7.2.3 The employer's certificate of the plaintiff's service showing
The nature of employment, the period of service, remuneration,
prospects of advancement and compensation and retirement age;
7 .2 .4 Any other proof of income of the plaintiff, a letter from the
employer or an affidavit from an employer or any person that can
confirm that the plaintiff earned an income to support her
dependents;
7.2.5 The RAF 4 (serious injury report}, duly completed;
7.2.6 Medical legal reports or documentation establishing or
substantiating the plaintiff's temporary or permanent disability and
the loss of earnings claimed; and
7.2.7 An itemised tax invoice from a registered medical provider or
hospital for past medical expenses, with proof of payment of the
medical expenses.
[8] The combined summons was served on the RAF on 28 February 2023. The
RAF 's plea and special pleas were served on the plaintiffs attorney of record
on 27 March 2023.
1 Government Gazette NO . 46322 on 06 May 2022.
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[9] Dr van Heerden's (a plastic and reconstructive surgeon) and Dr Deacon's (an
orthopaedic surgeon) Serious Injury Reports (RAF 4) were served on the RAF
on 17 April 2023 and 11 May 2023 respectively.
[1 0] The minute of the pre-trial conference of 24 January 2024 reflects that:
'6.1 The seriousness of the plaintiffs injuries has been placed in dispute by the RAF
in its special pleas.
6.2 The plaintiff has delivered favourable serious injury assessment reports by
Doctor Deacon (orthopaedic surgeon) and Doctor Van Heerden (plastic and
reconstructive surgeon). The plaintiffs representative requested the
defendant's attorney to get instructions on conceding seriousness in the
plaintiff's favour.'
Legal argument:
[11) Initially, Ms. Mhlanga, on behalf of the RAF , submitted that the RAF does not
intend to proceed with the two special pleas pertaining to the serious injury
assessment. In a turnabout she, however, relying on Makuapane v Road
Accident Fund 2 and Road Accident Fund v Lebeko, 3 argued that a court cannot
make a determination whether a plaintiff's injuries are so serious that such a
plaintiff is entitled to a claim for general damages against the RAF as the
stipulation in Regulation 3(3)(c) is to the effect that" ... the Fund shall only be
obliged to pay general damages if the Fund - and not the courl -is satisfied that
the injury has correctly being assessed in accordance with the RAF 4 Form as
Serious."
[12] Mr. Botha, on behalf of the plaintiff, argued that this Court should follow the
approach in Mertz v Road Accident Fund ("Merlz'J4 where the court of appeal
2 (9077/2022) [2023) ZAGPPHC 15 (19 January 2023).
3 [2013] JOL30 399 (SCA).
4 [2022] JOL 57121 (GP).
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confirmed that the trial court should have deemed that the RAF had accepted
the injuries as serious in the absence of the RAF indicating the contrary.
Applicable law:
[13] Section 17(1) of the Act was amended to introduce limitations on the RAF's
liability for general damages. Non-pecuniary loss was limited to compensation
for a serious injury. A third party wishing to claim general damages mus t now
obtain a serious injury assessment report from a medical practitioner.
Regulation 1 defines this report as a duly completed RAF 4 form. The RAF can
reject the third party RAF4 form if it is not satisfied that the injuries were correctly
assessed.
[14] The Supreme Court in Road Accident Fund v Duma, Road Accident Fund v
Kubeka, Road Accident Fund v Meyer, Road Accident Fund v Mokoena
("Duma'') held that the decision as to whether or not the injury of a third party is
serious enough to meet the threshold requirement for an award of general
damages, is conferred on the RAF, and not on the court, and that the court
simply has no jurisdiction to entertain the claim. The conclusion was that the
court had no authority to interfere with the RAF's decision to reject the RAF 4
forms.
[15] Pursuant to Duma , 5 Regulation 3(3)(a) was promulgated to provide that the
RAF "must within 90 days from the date on which the Serious Injury Assessment
Report was sent by registered mail or delivered by hand to the Respondent,
accept or reject the Serious Injury Assessment Report or direct that the third
party submit himself or herself to a further assessment."
[16] Regulation 3(d)requires from the RAF , if not satisfied that the injury was
correctly assessed, to reject the serious assessment report and to furnish the
third party w ith reasons for the rejection, or to direct, at the cost of the RAF , to
5 202/2012, 64/2012, 164/2012 , 131/2012) [2012] ZASCA 169; (2013) 1 A ll SA 543(SCA) ; 2013 (6) SA
9 (SCA ) (27 November 2012).
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submit himself or herself for a further assessment to ascertain whether the injury
is serious.
[17] Regulation 3, however, does not expressly require the RAF to in writing accept
the injuries as serious, whereas it expressly provides that reasons for rejection
must be in writing.
Evaluation of the evidence and legal argument:
[18) The question is whether this Court can conclude that the RAF accepted the
plaintiff's serious injury assessment reports. Simply put, can the conduct of the
RAF in this matter lead to an inference of its acceptance of the serious injury
reports.
[19] I am not persuaded that I should apply the same approach as in Mertz. To my
mind, Mertz is distinguishable from the matter in casu. I reach this conclusion
based on the following:
19.1 The RAF is the decision-maker pertaining to accepting or rejecting the
injury as serious;
19.2 The plaintiff in Mertz vigorously persisted with his attempt to obtain a
concession from the RAF that the seriousness of the injury is admitted.
The plaintiff and the RAF in Mertz held three pre-trial conferences. At the
first pre-trial no expert notices had been filed by the plaintiff and the RAF
recorded that it reserved its right to refer the plaintiff's serious injury
assessment to the HPCSA. At the second pre-trial conference, the
plaintiff had filed expert reports that embodied serious injury
assessments by various medical specialists. At this pre-trial the RAF was
requested to admit the serious injury within a specified time period, failing
which, it would be deemed that the RAF admitted the contents of the
reports. The RAF struck out this provision that the reports would be
deemed to be admitted and noted that the issue would be revisited at the
next pre-trial conference. It also reserved its right to have the serious
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injury assessments referred to the HSPC. At the third pre-trial, the RAF
was represented by an attorney, Mr. Ndlovu. He was again asked to
admit the expert reports that included the serious assessment
reports. Paragraph 6.2.5 reads as follows:
'Defendant is requested to indicate exactly which findings in the Plaintiff's expert
reports it disputes."
Defendant's reply: "The Defendant shall revert by close of business on 15
January 2020, failing which it shall be accepted that the findings in the Plaintiff's
expert reports are deemed to be admitted.'
19.3 The third and final pre-trial did not, as the other two pre-trials did, contain
the provision that the RAF reserves its right to have the issue of the
serious injury assessment of the plaintiff referred to the HPCSA.
19.4 At trial, the content of the expert reports and the serious injury reports
were admitted, because the deeming provision was alive.
[20] In this matter, the plaintiff did not seriously pursue the acceptance of the serious
injury assessment by the RAF. No follow up letters were sent and the RAF was
never placed on terms that its failure to revert to the plaintiff's attorneys would
result in an admission of the serious injury. Furthermore, the RAF at no stage
admitted the content of the expert reports or serious injury assessment reports.
[21] I can reach no other conclusion than that the conduct of the RAF in this matter
does not establish an inference that the seriousness of the injuries was
accepted.
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Third special plea - non-compliance with s 24 of the Act:
[22] Mr Botha submitted that the plaintiff lodged her claim form on 01 September
2022 w ith the required and sufficient information to enable the RAF to access
the claim; and as such, there was substantial compliance to s 24 of the Act.
[23] According to Ms Mhlanga, whilst the RAF acknowledged receipt of the claim
form, the plaintiffs attorneys was informed that it was not compliant with s 24
of the Act in view of the requirements set out in the RAF's Board Notice 271 of
2022 ("the Board Notice").6
Analysis:
[24] Section 24 of the Act, in relevant part, regulates the procedure for the
lodgement of claims; and provides:
'A claim for compensation and accompanying medical report under section 17
(1) shall-
(a) be set out in the prescribed form, which shall be completed in all its
particulars;
(b) be sent by registered post or delivered by hand to the Fund at its
principal, branch or regional office, or to the agent who in terms of section
8 must handle the claim, at the agent's registered office or local branch
office, and the Fund or such agent shall at the time of delivery by hand
acknowledge receipt thereof and the date of such receipt in writing.
(4)(a) Any form referred to in this section which is not completed in all its
particulars shall not be acceptable as a claim under this Act.'
6 Government Gazette No . 46322 on 06 May 2022.
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[25) Regulation 7(1) reiterates that a claim for compensation, and the
accom panying medical report referred to in section 24(1 )(a) of the A ct shall be
in the Form RAF 1, attached as annexure A to the Regulations, or such
amendment or substitution thereof, as the RAF may from time to time give
notice of in the Ga zette.
[26) What arises for consideration is the question whether the claim wa s lodged in
terms of the Act and its Regulations.
[27) I briefly deal with the status of the Board Notice to place the RAF's contention
that the plaintiff failed to substantially comply with the lodgement requirements
in context.
(28) Paragraph 20 of Annexure A to the Regulations stipulates:
'Please complete the following information to validate your claim for substantial
comp liance to section 24 of the Act.
1. The identity of the insured (paragraph 1 );
2. The date and place of the accident (paragraph 5);
3. Identify the insured motor vehicles (paragraphs 6/7 and 8);
4. A completed statutory medical record report (paragraph 22);
5. Amount claimed as compensation (paragraph 19);
6. Attach accounts, vouchers, invoices etc. to support your claim for medical
expenses;
7. Comp lete this form as prescribed in section 24 of the Act ; and
8. in the event of loss of support or funeral expenses are claimed, provide documents
in proof of the death of the deceased;
9. Should the space provided in this claim form be insufficient to answer any question,
you are welcome to attach a further page to this claim form in which such further
information can be provided to the Road Accident Fund.'
[29] On 06 May 2022, the RAF adopted and implemented the Board Notice. In the
Board Notice, the Minister prescribed the RAF 1 C laim Form ("the RAF 1 Form")
in a schedule. The RAF 1 Form requires the completion of the form to claim
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compensation in terms of s 17 of the Act. It stipulates that any form that is not
completed in its full particulars shall not be acceptable as a claim in accordance
withs 24(4)(a) of the Act.
[30] On 20 March 2024, in Legal Practitioners Indemnity Insurance Fund NPC and
Others v Road Accident Fund and Others ("LP/IF v RAF'), 7 the court found the
delegation by the Minister unlawful; and declared that the Board Notice is
unlawful, is reviewed and set aside. The court reached this conclusion on the
basis that the Board of the RAF may make recommendations to the Minister,
but that the Minister ultimately makes the decision; and whatever power the
RAF enjoys to administer claims in terms of s 4(1 )(a), it cannot trespass upon
the Minister's power in terms of s 24(1) read withs 26(1).
[31] On 26 August 2024, the court a quo granted the RAF leave to appeal the
judgment in LP/IF v RAF,8 but emphas ised that:
'Here, as we have explained, is an issue of public importance, that must serve before
the SCA. At the centre of this case, like Mautla, is the interpretation of statutory powers
and their application. We have in our judgmen t pronounced on these matters and do
not think there is a reasonable prospect that another court would decide these
questions differently. However, for the reasons given above, we are of the view that
there are compelling reasons to grant leave to appeal Paragraph (iii) of our judgm ent
so as to permit the SCA to decide issues relevant to the Board Notice and its remedial
consequences that are common as between Mautla and the present matter. There is
no basis to grant leave to apoeal to the applicants for leave in respect of the exercise
by the M inister of her pow ers to issue the RAF 1 form because the applicants for leave
did not oppose the review in respect of the exercise of these powe rs. No such appeal
wou ld be competent, and such leave was abandoned before us.
In the course of hearing the application for leave to appeal, it was drawn to our attention
In the course of hearing the application for leave to appeal, it was drawn to our attention
that the applicants for leave had been making use of their application to avoid giving
7 [2024] ZAGPPHC 294; 2024 (4) SA 594 (GP).
8 R oad Accident Fund and Others v Legal Practitioner's Indemn ity Insurance Fund and O thers (Leave
to Appeal) (046038/2022) (2024) ZAGPPHC 854 (26 August 2024) paras 15 to 16.
13
effect to the interim remedial regime ordered by us. We expressed considerable
concern as to this course of conduct. While the applicants for leave are entitled to seek
leave to appeal in respect of those orders made by us that they contested in the main
application, it is not clear how they can frame an application for leave to encompass
the exercise by the Minister of her powers to issue the RAF 1 form and use such
application to rely upon suspension to avoid the remedial regime ordered by us. as it
relates to the RAF 1 form, and its consequence for the administration of claims that fall
within the authority of t11e RAF. While we make no findings at all on this matter, we
have nevertheless ordered the CEO of the RAF to file an affidavit explaining the Fund's
failure to implement the interim regime ordered by this court. Counsel undertook to
prevail on the RAF to file this affidavit on or before16 August 2024.' (My emphasis
underlined.)
[32] The remedial regime referred to by the court hearing the application for leave to
appeal is contained in prayer (vii), where the court a quo ordered that:
'Claimants who sought the lodgment of their claims in terms of the Boa rd Notice or the
RAF 1 Form, but lodgment was declined by the RAF or was not acknowledged by the
RAF, are afforded a period until 30 September 2024 to resubmit their claims to the RAF
in terms of the 2008 RAF 1 Form and those claimants who thereby secure lodgment
will enjoy the benefits of such lodgment as from the date on which lodgment was
originally sought by them;'
[33] The appeal before the Supreme Court of Appeal in LP/IF v RAF has not been
adjudicated.
Conclusion:
[34] In my view, it would not serve any purpose to grant a remedial order in casu;
and I deem it prudent not to dispose of the third special plea, but to postpone
the adjudication thereof until the pending appeal in LP/IF v RAF before the
Supreme Court is finalised.
[35] Based on my findings above, it is fair and equitable that no cost order is made.
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In the result, the following order is made:
1. The adjudication of the first and second special pleas pertaining to the serious
injury assessment is postponed sine die;
2. In respect of the defendant's first and second special pleas, the defendant shall,
in terms of Regulation (3)(3)(c) and 3(3)(d) of the Road Accident Fund Act 56
of 1996 ("the Act"), within five days from the date of service of this order, decide
whether the plaintiff's injuries are serious, or not, and transmit the decision, in
writing, to the plaintiff's attorney of record;
3. In so doing, the defendant must:
3.1 Determine whether it is satisfied that the plaintiff's injuries, sustained in
the motor vehicle collision that occurred on 26 June 2020, have been
assessed as serious in terms of the method provided for in the Road
Accident Fund Regulations, and accordingly accept that the plaintiff
qualifies to claim non-pecuniary loss; or
3.2 In the alternative to 3.1, reject the plaintiff's serious injury assessment
report (RAF 4 Form), and simultaneously furnish the plaintiff's attorney
of record with the written reasons for the rejection; or
3.3 In the alternative to 3.1 and 3.2 above, direct the plaintiff to submit
herself for further assessment at the defendant's cost with a medical
practitioner appointed by the defendant, to determine whether the
plaintiff's injuries are serious, or not;
4. The third special plea pertaining to the plaintiff's non-compliance to s 24 of the
Act is postponed sine die, pending the finalisation of the appeal in Legal
Practitioners Indemnity Insurance Fund NPC and Others v Road Accident Fund
and Others.
5. No cost order is granted.
STANTON J
On behalf of the plaintiff:
On instructions of:
On behalf of the RAF:
On instructions of:
Adv A Botha
Venter Rust Incorporated
Adv J Mhlanga
The State Attorney
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