IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case No: D566/2023
In the matter between:
SIMPHIWE MOSES MYEZA PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
ORDER
Having read the papers and after hearing counsel, the following order is made:
1. The defendant’s special plea of prescription is dismissed.
2. The defendant is ordered to pay the costs of the special plea, including the
costs of two counsel on scale B.
JUDGMENT
Date delivered: 18 July 2025
Masipa J
Introduction
[1] The plaintiff , Simphiwe Moses Myeza instituted legal proceedings for a
damages claim against the defendant in this matter, the Road Accident Fund (RAF)
following a motor vehicle collision that occurred on 8 March 2020. As part of its
defence to the plaintiff’s claim, the defendant raised a special plea. It is the special
plea which concerns this judgment. This special plea addresses an issue of
prescription. The defendant alleges that the plaintiff's claim was not lodged timeously
in terms of section 23(1) of the Road Accident Fund Act 56 of 1996 (the Act”), and is
therefore prescribed.
[2] As can be expected, the plaintiff opposes the special plea and argues that the
claim was lodged on 23 September 2022, within the prescribed three-year period,
and that the institution of action by summons on 24 January 2023 was similarly
timeous.
Background
[3] As mention in the introduction to this judgment, the accident giving rise to the
plaintiff’s claim occurred on 8 March 2020. Pursuant t o that accident, the plaintiff
alleges that he lodged his claim with the RAF on 23 September 2022. However, the
RAF, maintains that the claim was only properly lodged on 8 September 2023, when
the plaintiff submitted certain outstanding documents including an industrial
psychologist’s report.
[4] A letter dated 29 September 2022 from the RAF to the plaintiff’s attorneys
acknowledged receipt of the claim and confirmed that it had been pre -assessed as
compliant with s ection 24 of the Act and Board Notice 271 of 2022.1 However, the
same letter bore a ‘pre -lodgement not a compliant’ stamp and referenced missing
documents, including a RAF 4 form and medical records.
1 Board Notice 271 of 2022 as published in Government Gazette No. 46322, dated of 6 May 2022.
[5] Despite this ambiguity, the RAF did not reject the plaintiff’s claim outright, nor
return the lodgement documentation. The plaintiff's RAF 1 form had been submitted
in the form introduced by Board Notice 302 of 2022. 2 This notice, and the
accompanying RAF 1 form, were declared unlawful by the court in Legal
Practitioners Indemnity Insurance Fund N PC and Others v Road Accident Fund and
Others3, (the LPIIF case) with the court allowing claims submitted using the defective
form to be re -lodged by 30 September 2024 and deemed lodged as of their original
date of submission.
The Legal framework
[6] The relevant provisions of the Act are sections 23 and 24.
a) Section 23(1) of the Act provides that, '(1) Notwithstanding anything to the
contrary in any law contained, but subject to subsections (2) and (3), the right
to claim compensation under section 17 from the Fund or an agent in respect
of loss or damage arising from the driving of a motor vehicle in the case
where the identity of either the driver or the owner thereof has been
established, shall become prescribed upon the expiry of a period of three
years from the date upon which the cause of action arose.’
b) Section 24(1) requires that a claim for compensation be lodged in the
prescribed manner and form, it provides that, ‘(1) A claim for compensat ion
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 de livery by hand acknowledge receipt thereof
and the date of such receipt in writing.’
2 Board Notice 302 of 2022 as published in Government Gazette No.46652 of 4 July 2022.
2 Board Notice 302 of 2022 as published in Government Gazette No.46652 of 4 July 2022.
3 Legal Practitioners Indemnity Insurance Fund NPC and Others v Road Accident Fund and Others
2024 (4) SA 594 (GP).
c) While Section 24(4) permits the RAF to reject claims not properly completed.
It provides that, ‘(4) (a) Any form referred to in this section which is not
completed in al l its particulars shall not be acceptable as a claim under this
Act; (b) A clear reply shall be given to each question contained in the form
referred to in subsection (1), and if a question is not applicable, the words 'not
applicable' shall be inserted; ( c) A form on which ticks, dashes, deletions and
alterations have been made that are not confirmed by a signature shall not be
regarded as properly completed; (d) Precise details shall be given in respect
of each item under the heading 'Compensation claimed ' and shall, where
applicable, be accompanied by supporting vouchers.’
Analysis
[7] The central issue is whether the plaintiff’s lodg ement on 23 September 2022
constituted substantial compliance with s 24 of the Act. The RAF's communication at
the time was equivocal. On one hand, it acknowledged receipt and confirmed that
the claim was ‘compliant’ on the other, it raised certain documentary deficiencies and
used the phrase ‘pre-lodgement not compliant’.
[8] In terms of the common law and as confirmed in Pithey v Road Accident
Fund,4 it was held that, ‘substantial compliance with the requirements for lodgement
under section 24 suffices. The court stated that the claim form must be completed
and received within statutory or regulatory deadlines i.e. three years for identified
vehicles and two years for unidentified vehicles under Regulation 2(3). However, that
while completeness is formally mandatory/peremptory, courts show flexibility where
claimants pro vide enough information for the RAF to investigate. In this regard,
courts are to invoke the substantial compliance doctrines from insurance law. The
court must apply an objective test to determine whether such compliance occurred.’5
[9] The defendant did not invoke s 24(5) to formally reject the plaintiff’s claim
[9] The defendant did not invoke s 24(5) to formally reject the plaintiff’s claim
outright, nor return the lodg ement documentation. It also proceeded to engage with
the claim by accepting the RAF 4 forms, issuing a formal tender on 3 October 2023
4 Pithey v Road Accident Fund [2014] ZASCA 55; 2014 (4) SA 112 (SCA); [2014] 3 All SA 324 (SCA).
5 Ibid para 18-19.
in relation to merits, and only amending its plea to raise a special plea of prescription
on 8 August 2024.
[10] In this context, the letter of 29 September 2022 and the subsequent conduct
of the RAF suppo rt the conclusion that there was substantial compliance with the
requirements for lodgement. The plaintiff’s claim included sufficient documentation
for the RAF to investigate and engage meaningfully, which is the fundamental
purpose of lodgement under s 24 of the Act.6
[11] The reasoning in Maarman and Others v Road Accident Fund , 7 is apposite.
There, similar special pleas based on non-compliance with the new RAF 1 form were
rejected on the basis that the documents lodged were sufficient for the RAF to
consider and investigate the claims. The court found, ‘… that defendant is entitled to
refuse to accept claims which do not comply with section 24. This Court also finds
that defendant is not entitled to reject claims which substantially comply with sectio n
24 given peculiar circumstances of each case if the facts of the matter looked upon
as a whole objectively leads to a finding of substantial compliance with section 24.
Consequently, any ancillary directives or regulation cannot as a matter of law trump
application of that provision.’8
[12] Moreover, in Road Accident Fund v Busuku ,9 the court emphasized that the
Act must be interpreted generously in favour of claimants and that the RAF is not
entitled to refuse lodgement where a claim is substantially compliant. The court held,
‘Before I turn to consider the legislative framework app licable 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. In considering the context in which the
provisions appear and the purpose to which they are directed it must be recognized
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 suff ered loss through negligence
or through unlawful acts on the part of the driver or owner of a motor vehicle. For this
6 Radebe v Road Accident Fund [2024] ZAGPPHC 25 at 30.
7 Maarman v Road Accident Fund [2025] ZAWCHC 106.
8 Ibid para 84.
9 Road Accident Fund v Busuku [2020] ZASCA 158.
reason the provisions of the Act must be interpreted as extensively as possible in
favour of third parties in order to afford them the wid est possible protection. 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, h owever, been no suggestion of
any illegitimate or fraudulent claim.’ 10
[13] The LPIIF case declared the new RAF 1 form invalid and set it aside.
Importantly, it permitted re -lodgement of claims submitted using the defective form
and allowed them to retain their original date of submission. 11 The plaintiff in this
case re-lodged the claim with the 2008 RAF 1 form on 12 June 2024.
[14] This means that even if this Court were to find that the initial lodgement was
defective (which it does not), the claim would be deemed lodged on 23 September
2022 by virtue of the LPIIF order. The pending appeal in that case does not suspend
the order’s effect unless and until the SCA overturns it.
[15] The RAF elected not to call any witnesses to establish the factual basis for its
special plea. The special plea introduced fresh facts that required evidentiary
support, which was not provided. The principle is trite that bare allegations in a
special plea unsupported by evidence cannot sustain a defence of prescription.12
Conclusion
[16] In light of the LPIIF judgment and the jurisprudence emphasizing the
protective object of the RAF Act, the defendant’s rigid reliance on technical non -
compliance cannot be sustained. I find that the RAF has failed to discharge the onus
of proving that the plaintiff’s claim is prescribed. The plaintiff has demonstrated, both
factually and legally, that his claim was lodged within the three -year period
prescribed by section 23(1) of the Act. The special plea must accordingly fail.
10 Ibid para 6.
11 LPIIF fn3 above para 55.
10 Ibid para 6.
11 LPIIF fn3 above para 55.
12 Mason v Mason (1286/2023) [2025] ZASCA 44 para 14.
Costs
[17] The special plea was pursued despite the ambiguities in the RAF's own
correspondence, its post-lodgement conduct, and the LPIIF ruling which I align
myself to. In these circumstances, the defendant should bear the costs of the
hearing, including the costs of two counsel, given the legal complexity and
significance of the issues raised.
Order
[18] In the result, I make the following order:
1. The defendant’s special plea of prescription is dismissed.
2. The defendant is ordered to pay the costs of the special plea, including the
costs of two counsel on scale B.
________________________
Masipa J
DETAILS OF THE HEARING
Matter heard on: 9 June 2025
Judgment Date: 18 July 2025
Appearance Details:
For the Plaintiff: Mr K McIntosh SC with Ms C Gajoo
Instructed by: K Gounden & Associates
For the Defendant: Ms M G De Klerk
Instructed by: Office of the State Attorney, KZN