Brief Summary

Constitutional Law — Road Accident Fund Act — Section 17(6) — Applicant challenging constitutionality of proviso requiring medical costs to be 'already incurred' for interim payments — Court finding that this requirement discriminates against indigent claimants, effectively reserving benefits for the wealthy — Court retaining jurisdiction to decide on constitutional validity despite mootness due to settlement of Applicant's personal claim — Declaration of invalidity warranted to address systemic inequality.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of a constitutional application brought in the High Court of South Africa, Limpopo Division, Polokwane. The applicant, Nyam Birai Chengeto, sought declaratory and ancillary relief impugning the constitutional validity of the proviso to section 17(6) of the Road Accident Fund Act 56 of 1996 (the RAF Act), insofar as it confines interim payments to medical costs “already incurred” and losses “already suffered”.

The respondents were the Road Accident Fund (as first respondent) and the Minister of Transport (as second respondent). Both respondents opposed the application. They raised, among other defences, that the matter was moot because the applicant’s individual RAF claim had been settled by the time the constitutional application was argued, and further contended that adequate alternative mechanisms existed, including a section 17(4)(a) undertaking and Rule 34A of the Uniform Rules of Court.

Procedurally, the applicant had lodged a RAF claim after a 2019 motor vehicle accident, and the RAF had later admitted liability and settled outstanding heads of damages shortly after service of the constitutional application. Despite that settlement, the High Court treated the constitutional challenge as raising an issue with potential ongoing practical effect beyond the applicant’s personal dispute, and it addressed both the justiciability point (mootness) and the merits of the equality-based challenge.

The dispute’s general subject matter concerned whether the statutory design of interim payments under the RAF Act, when conditioned on costs being “already incurred”, operates in a manner that indirectly and unfairly discriminates against indigent claimants who cannot access private medical treatment on credit and therefore cannot “incur” the relevant costs.

2. Material Facts

It was largely common cause that on 24 December 2019 the applicant was a passenger in a motor vehicle involved in a collision and sustained serious bodily injuries, including a mandibular fracture, loss of dentition, and scarring. The applicant was described as a foreign national, working as a hawker, and categorised on the papers as an indigent person.

The court accepted as material the applicant’s contention that she required reconstructive surgery and dental work, but lacked the financial means to pay private providers upfront and could not obtain credit. On that basis, she could not furnish proof that medical costs had been “incurred” in the sense of an existing debt due and payable to a private provider. The court treated this inability to incur costs as central to the functioning of section 17(6) for indigent claimants.

It was also common cause that by the time the matter was argued, the RAF had settled the applicant’s claim relating to past hospital expenses (paid to a provincial hospital) and loss of earnings, and had provided an undertaking under section 17(4)(a) in respect of future medical costs. The respondents relied on these developments to argue that the dispute between the parties had become moot, whereas the applicant argued that the constitutional question remained practically significant for indigent claimants generally.

The court placed weight on the chronology showing that the RAF settled the remaining heads of damages and issued the section 17(4)(a) undertaking within a short period after being served with the constitutional application. This sequence was treated as relevant to whether the constitutional issue would otherwise evade judicial scrutiny if mootness were upheld whenever settlement occurred after service.

3. Legal Issues

The central legal questions required determination were whether the High Court should decide a constitutional challenge where the applicant’s personal claim had been settled (a justiciability issue turning on mootness and the interests of justice), and whether the proviso to section 17(6) of the RAF Act is unconstitutional to the extent that it limits interim payments to medical costs “already incurred”, thereby excluding indigent claimants who cannot incur such costs.

The dispute involved a combination of legal characterisations and application of law to fact. The mootness point required evaluation of whether, notwithstanding settlement, a declaration could still have practical effect beyond the immediate litigants. The constitutional merits required applying the equality jurisprudence (including indirect discrimination analysis) to the statutory scheme and its practical operation for indigent claimants.

A further set of issues concerned whether the availability of other mechanisms rendered constitutional relief unnecessary, specifically whether a section 17(4)(a) undertaking, Rule 34A, or recourse to public healthcare constituted adequate alternatives that neutralised the alleged discrimination. These issues involved both legal interpretation (including the effect of “notwithstanding” wording in the statute) and evaluative assessment of the practical efficacy of alternatives.

4. Court’s Reasoning

On mootness, the court accepted that the applicant’s individual lis against the RAF had been extinguished by settlement and the issuance of a section 17(4)(a) undertaking. It nevertheless held that mootness is not an absolute bar, and that the decisive inquiry is whether it is in the interests of justice to decide the constitutional issue. The court relied on section 172(1) of the Constitution in framing the High Court’s role when a constitutional issue is properly before it, and it adopted by analogy the factors articulated in Constitutional Court authority for hearing moot matters, including the potential practical effect on others, the public importance of the issue, and the risk that the dispute would repeatedly arise yet evade review.

The court reasoned that the constitutional challenge was directed at a statutory provision of general application and raised an objective question whose resolution could affect a vulnerable class of road accident victims beyond the applicant. It regarded the timeline, in which settlement followed shortly after service of the constitutional application, as supporting the applicant’s contention that post-service settlement could otherwise insulate the provision from scrutiny. The court further considered that the denial of interim relief is inherently time-sensitive, meaning the issue could regularly become moot before appellate review, strengthening the case for adjudication at first instance.

On the interpretation and operation of section 17(6), the court focused on the statutory proviso limiting interim payments to costs “already incurred” and losses “already suffered”, reinforced by a “notwithstanding anything to the contrary in any law contained” clause. It accepted that “incurred” had been litigated in other contexts and that insured or creditworthy claimants may satisfy the requirement because they can become legally liable to private providers. The court contrasted this with indigent claimants who, on the facts accepted, cannot access private treatment on credit and therefore cannot “incur” medical costs in a manner recognised by the proviso. The court treated this as a functional “trap” in which liquidity is required to obtain treatment, but treatment (and the associated incurred costs) is required to obtain interim funding.

In considering alleged alternatives, the court rejected the contention that a section 17(4)(a) undertaking cured the prejudice. It reasoned that an undertaking is a promise to pay, and it took judicial notice of the RAF’s well-publicised payment difficulties, referencing litigation in which the RAF sought extraordinary relief due to financial distress. On that basis, the court concluded that a section 17(4)(a) undertaking was not, in practice, a functional equivalent to interim liquidity and might not be accepted by private providers.

The court also rejected reliance on Rule 34A, reasoning that the procedural rule is subordinate to the RAF Act and that the proviso’s “notwithstanding” clause operates as a statutory override. It referred to Full Court authority holding that the proviso renders Rule 34A ineffective for costs not yet incurred. On this approach, the court accepted that indigent claimants cannot use section 17(6) because they cannot incur costs, and cannot use Rule 34A because the statute excludes what the rule would otherwise permit.

As to the contention that public healthcare availability obviated the need for interim payments, the court treated this as akin to a “public healthcare defence” and invoked authority that such a position is not self-proving and carries an evidential burden. It held that the respondents had not placed evidence before the court demonstrating that victims could generally receive treatment in public facilities within a reasonable time and at a standard comparable to private healthcare. The court therefore concluded that public healthcare availability was not an adequate answer on the papers before it.

On the constitutional merits, the court proceeded under sections 9 and 10 of the Constitution and applied established equality principles, including the framework for identifying differentiation, discrimination (including indirect discrimination), and unfairness. Although the text of section 17(6) is facially neutral, the court held that its practical consequences differentiate on socio-economic lines by making interim payments accessible primarily to those with capital or credit. It characterised this as indirect discrimination and found that it implicated equality and dignity because poverty can perpetuate systemic disadvantage and undermine human dignity in a manner comparable to listed grounds.

The court considered whether the differentiation bore a rational connection to a legitimate governmental purpose. While it accepted that limiting the RAF’s exposure could be a general objective, it held that no legitimate purpose was demonstrated for treating indigent claimants differently in relation to interim payments. It then found the discrimination to be unfair, emphasising the impact on indigent claimants who were effectively excluded from interim relief and relegated to a different and constrained route to care.

Turning to limitation and justification, the court held that once unfair discrimination was established, the onus shifted to the respondents to justify the limitation under section 36 of the Constitution. It found that the Minister’s answering affidavit, while describing legislative history, did not provide justification evidence, and that there was no evidential foundation for the financial or policy necessity of the “incurred” requirement as an exclusionary condition. The court accordingly held that the limitation was unjustified on the papers.

On remedy, the court considered remedial options under section 172(1) of the Constitution and explained why severance or reading down would not appropriately cure the constitutional defect. It held that striking the proviso outright could create an unstructured vacuum and risk disrupting the scheme, and that reading down was not feasible because “incurred” has a settled meaning reinforced by the “notwithstanding” clause. The court selected a remedy combining a declaration of invalidity with a suspended declaration to allow legislative correction, coupled with an interim reading-in extending eligibility for interim payments to indigent claimants who cannot incur or sustain necessary costs without interim assistance. The court described this as targeting an under-inclusiveness problem while preserving the overall statutory framework.

5. Outcome and Relief

The court declared the proviso to section 17(6) unconstitutional and invalid to the extent that it limits interim payments to costs “already incurred” in a manner that unfairly discriminates against indigent claimants who are financially unable to incur such costs. It suspended the declaration of invalidity for 24 months to afford the legislature an opportunity to rectify section 17(6), and it ordered an interim reading-in during the suspension period to permit interim payments where the third party is indigent and the costs constitute necessary medical expenses the claimant is financially unable to incur or sustain without an interim payment.

The court ordered that the matter be referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

On costs, the judgment body stated that the applicant had successfully vindicated constitutional rights and that, applying the Biowatch principle, the respondents must pay costs. The formal order, as recorded, stated that the applicant was ordered to pay the respondents’ costs, with counsel’s costs to be taxed on Scale C as contemplated in Rule 67A(3)(a), including the costs of two counsel where employed.

Cases Cited

Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and others 2020 (6) BCLR 748 (CC)

MEC for Education, Kwazulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC)

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2006 (11) BCLR 1255 (CC)

Road Accident Fund v Legal Practice Council 2021 (6) SA 230 (GP)

Road Accident Fund v Manqina 2023 (2) SA 1 (ECM)

Ngubane v South African Transport Services 1991 (1) SA 756 (A)

Mashinini v Member of the Executive Council for Health and Social Development, Gauteng Provincial Government [2023] JOL 58643 (SCA)

Harksen v Lane NO 1998 (1) SA 300 (CC)

City Council of Pretoria v Walker 1998 (2) SA 363 (CC)

Social Justice Coalition and Others v Minister of Police and Others 2019 (4) SA 82 (WCC)

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC)

Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 2, 9, 10, 36, 172)

Road Accident Fund Act 56 of 1996 (sections 17(1), 17(4)(a), 17(5), 17(6), 21)

Rules of Court Cited

Uniform Rules of Court, Rule 34A

Uniform Rules of Court, Rule 67A(3)(a)

Held

The High Court held that it was in the interests of justice to determine the constitutional validity of the proviso to section 17(6) despite the applicant’s individual claim having been settled, because the issue is of public importance, capable of repetition, and may evade review if settlements are treated as dispositive of justiciability.

It held that section 17(6), though facially neutral, operates in practice to exclude indigent claimants from interim payments because they cannot “incur” medical costs without credit or capital, thereby producing indirect discrimination on socio-economic grounds. The court held that this discrimination is unfair due to its impact on dignity and equality, and that the respondents did not justify the limitation under section 36.

It held that the appropriate remedy was a declaration of invalidity (suspended to allow legislative correction) with an interim reading-in extending interim payment eligibility to indigent claimants for necessary medical expenses they cannot financially incur or sustain without interim payment, with referral to the Constitutional Court for confirmation.

LEGAL PRINCIPLES

The judgment applied the principle that mootness does not automatically preclude adjudication of a constitutional question; the decisive consideration is whether it is in the interests of justice to decide the issue, including whether an order may have practical effect beyond the parties, the importance of the issue, and whether the issue is likely to recur yet evade review.

It applied equality principles recognising that indirect discrimination may arise from a facially neutral provision where the practical consequences disproportionately burden a vulnerable group. The judgment treated socio-economic disadvantage and poverty as capable, objectively, of impairing dignity and adversely affecting equal enjoyment of rights in a manner comparable to listed grounds, and it approached unfairness primarily through the impact of the differentiation on indigent claimants.

It applied the principle that where a statute includes a “notwithstanding anything to the contrary” clause, subordinate procedural mechanisms (such as rules of court) cannot be used to compel outcomes that the statute expressly precludes, and that hardship created by the statutory text cannot be cured by interpretive manoeuvre where the language has a settled meaning.

It applied the principle that assertions that claimants can rely on public healthcare as a substitute for private care are not self-proving in litigation concerning medical costs; the party advancing that contention bears an evidential duty to show that comparable care is available within a reasonable time and to a similar standard.

On remedies, the judgment applied the constitutional remedial framework under section 172(1), reasoning that where the constitutional defect is under-inclusiveness and cannot be cured by severance or reading down, an interim reading-in (often coupled with suspension of invalidity to permit legislative correction) may be just and equitable provided it is sufficiently precise, faithful to the legislative scheme, and no more intrusive than necessary.

Chengeto v Road Accident Fund and Another (3733/2022) [2026] ZALMPPHC 6 (19 January 2026)