THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1106/2024 and 1479/2024
In the matter between:
ROAD ACCIDENT FUND FIRST APPELLANT
CHAIRPERSON OF THE BOARD, ROAD ACCIDENT
FUND SECOND APPELLANT
CHIEF EXECUTIVE OFFICER, ROAD ACCIDENT FUND THIRD APPELLANT
and
LEGAL PRACTITIONERS’ INDEMNITY INSURANCE
FUND, NPC FIRST RESPONDENT
W E EMERGENCY RESPOND TEAM (PTY) LTD SECOND RESPONDENT
TSHOLOFELO TLHWAJWANG obo MINOR THIRD RESPONDENT
REBECCA MASABATA MOHAPI FOURTH RESPONDENT
CHRISTJAN TOLO FIFTH RESPONDENT
JOHANNA SUSANNA VISAGIE SIXTH RESPONDENT
LUCKY DUMISANI SEBATLELO SEVENTH RESPONDENT
A WOLMARANS INCORPORATED EIGHTH RESPONDENT
2
LOUBSER VAN WYK ATTORNEYS NINTH RESPONDENT
ABONGILE DUMILE ATTORNEYS INCORPORATED TENTH RESPONDENT
THE MINISTER OF TRANSPORT ELEVENTH RESPONDENT
THE LEGAL PRACTICE COUNCIL TWELFTH RESPONDENT
PRETORIA ATTORNEYS’ ASSOCIATION AMICUS CURIAE
Neutral citation: Road Accident Fund and Others v Legal Practitioners’ Indemnity
Insurance Fund, NPC and Others (1106/2024 and 1479/2024 )
[2026] ZASCA 63 (30 April 2026)
Coram: NICHOLLS, MATOJANE and KEIGHTLEY JJA and MAMOSEBO
and NORMAN AJJA
Heard: 17 February 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for the hand-down of the judgment is
deemed to be 11h00 on 30 April 2026.
Summary: Administrative Law – Promotion of Administrative Justice Act 3 of 2000
(PAJA) – Road Accident Fund Act 56 of 1996 (the Act) – whether the Minister’s
decision to gazette the RAF 1 form constituted an administrative action under the
PAJA – whether the publication of the board notice by the RAF constituted making
regulations and unlawfully encroached on the Minister’s powers under s 24 of the Act.
3
ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Molopa-Sethosa,
Unterhalter and Motha JJ sitting as court of appeal):
1 The appeal is dismissed, with costs , including the costs of two counsel where
so employed.
2 The date in paragraph (vii) of the high court order is amended to
30 September 2026.
JUDGMENT
Nicholls JA (Matojane and Keightley JJA and Mamosebo and Norman AJJA
concurring):
Introduction
[1] South Africa’s statutory road accident compensation scheme is set out in the
Road Accident Fund Act 56 of 1996 (the Act). The Road Accident Fund (the RAF), the
juristic entity established in terms of s 2 of the Act, has the primary responsibility of
paying compensation for loss or damage wrongfully caused by the driving of motor
vehicles. The Act sets out the regime of liability of the RAF to pay compensation which
would otherwise attach to negligent drivers at common law. It is social legislation
whose primary object is to ameliorate the plight of road accident victims.1 The Act has
undergone legislative review and amendments over the years. 2 The submission of a
valid claim form is the statutory gateway for the consideration of a claim under the Act.
1 Law Society of South Africa and Others v Minister for Transport and Another [2010] ZACC 25; 2011
(1) SA 400 (CC); 2011 (2) BCLR 150 (CC) para 66.
2 Mvumvu and Others v Minister of Transport and Another [2011] ZACC 1; 2011 (2) SA 473 (CC); 2011
(5) BCLR 488 (CC); Road Accident Fund v Duma And Three Similar Cases [2012] ZASCA 169; [2013]
1 All SA 543 (SCA); 2013 (6) SA 9 (SCA).
4
[2] This appeal concerns the claim form, known as the RAF 1 form, which claimants
are obliged to submit to the RAF under the Act in order that their claims may be
processed. At issue in this matter are the power s of the RAF and the Minister of
Transport (the Min ister) to prescribe the content and information required for the
RAF 1 form. For many years , the form in use was that prescribed in the 2008 RAF
regulations.3 Recently, there has been an attempt by the RAF to alter the requirements
for a valid claim form. It is one such attempt that has spawned this litigation.
[3] Specifically, this Court is called upon to determine whether the full court of the
Gauteng Division of the High Court, Pretoria (the full court) was correct in reviewing
and setting aside two board notices. The first is Board Notice 271 of 2022 (Board
Notice 271) .4 This had the effect of making claims to the RAF more onerous by
requiring additional compulsory information to be submitted when lodging a claim for
compensation with the RAF. The second board notice, which the full court declared
unlawful and set aside, is the RAF 1 form prescribed by the Minister in terms of Board
Notice 302 of 2022 (Board Notice 302) .5 In this later board notice, the Minister
approved the revised RAF 1 form mooted by the RAF in Board Notice 271,
incorporating the more stringent requirements for the claim form. Thus, a greater
burden is placed on claimants before their claims can be properly evaluated. Central
to the outcome of this appeal is whether the two impugned decisions amount to
administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000
(PAJA).
[4] This is a consolidated matter of cases 1106/2024 and 1479/2024. The RAF is
the first appellant in both matters. The second appellant is the Chairperson of the RAF
Board. The third applicant is the Chief Executive Officer (CEO) of the RAF. For
convenience, the app ellants will collectively be referred to as the RAF unless the
convenience, the app ellants will collectively be referred to as the RAF unless the
context indicates otherwise. The Legal Practitioners ’ Indemnity Insurance Fund, the
first respondent in both matters, is a non -profit company that provides professional
indemnity insuran ce to legal practitioners with fidelity fund certificates and grants
certain bonds of security to practising attorneys. The second and third respondents
3 RAF Regulations, GN R770, GG 31249, 21 July 2008.
4 This board notice was published with the RAF Regulations, GN 46322, GG 683, 6 May 2022.
5 This board notice was published with the RAF Regulations, GN 46652, GG 685, 4 July 2022.
5
were not granted condonation for filing their application outside the 180-day period
and are not before this Court. The fourth to seventh respondents are persons who
have submitted claims to the RAF. The eighth respondent is a firm of attorney s that
specialises in road accident and personal injury claims and represents, inter alia ,
30 medical aid schemes. The ninth respondent is also a firm of attorneys.
Legislative Framework
[5] Before dealing with the facts that led to this case, it is necessary to detail the
relevant sections of the Act. The powers of the RAF are set out in s 4 of the Act, which
in part provides:
‘4. Powers and functions of Fund
(1) The powers and functions of the Fund shall include-
(a) the stipulation of the terms and conditions upon which claims for the compensation
contemplated in section 3, shall be administered;
(b) the investigation and settling, subject to this Act, of claims arising from loss or damage
caused by the driving of a motor vehicle , whether or not the identity of the owner or the
driver thereof, or the identity of both the owner and the driver thereof, has been
established;
[…]
(2) In order to achieve its object, the Fund may-
(g) take any other action or steps which are incidental or conducive to the exercise of its
powers or the performance of its functions’
[6] Section 10 makes provision for a board of the Fund, consisting of the Director-
General of Transport and eight to 12 members appointed by the Minister. Section 11
sets out the powers and functions of the Board, as well as its procedures, which
include advising the Minister and approving internal rules and directions in respect of
the management of the Fund. 6 Section 12 provides that the Minister , on the
recommendation of the Board, shall appoint the C EO of the RAF, who shall draft
internal rules and directions in respect of the management of the RAF and make
recommendations in respect thereof to the Board and issue guidelines to agents
recommendations in respect thereof to the Board and issue guidelines to agents
regarding the manner in which they should administer claims on behalf of the RAF.7
6 Section 11(1)(a)-(d) of the RAF Act.
7 Section 12 (2)(c) and (e) of the RAF Act.
6
[7] Section 24 of the Act stipulates the procedure to be followed when submitting
a claim:
‘Procedure
(1) 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;
[…]
(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.
(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.
(5) If the Fund or the agent does not, within 60 days from the date on which a claim was sent
by registered post or delivered by hand to the Fund or such agent as contemplated in
subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in all
respects.’
[8] Section 26 empowers the Min ister to ‘make regulations regarding any matter
that shall or may be prescribed in terms of this Act or which it is necessary or expedient
to prescribe in order to achieve or promote the object of this Act.’8 The RAF 1 form, as
prescribed under the 2008 RAF regulations, remained in force for over a decade until
the RAF decided to make changes to the requirements for the lodgement of claims in
2021.
Background
[9] It is against this legislative framework that the events leading up to this appeal
took place. On 8 March 2021, the RAF issued a management directive communication
notice requiring claimants to submit additional documents and information under
8 Section 26(1) of the RAF Act.
7
s 24(1)(a) and (4) of the Act. As indicated, s 24 stipulates that any form ‘which is not
completed in all its particulars shall not be acceptable as a claim under this Act’.9 This
has the potential for far-reaching consequences, as the prescription period is extended
from two years to five years upon the lodgement of a claim.10
[10] On 19 May 2021 an external communication was published listing compulsory
supporting documentation that suppliers needed to submit when lodging claims with
RAF. These measures were followed shortly thereafter with the publication of Board
Notice 58 of 2021 in the Government Gazette on 4 June 2021. 11 Board Notice 58 of
2021, like the 8 March 2021 directive, prescribed an extensive set of documents that
had to be submitted for the claim to be ‘valid’. It cautioned that failing to submit the
said documents would render the claim invalid and would not interrupt prescription.
On the same day, it published a substituted RAF 1 form under a separate notice, Board
Notice 66 of 2021,12 the effective date of which would be the date of publication . It
claimed its authority to do so under regulation 7 of the RAF regulations.
[11] The publication of Board Notice 58 of 2021 resulted in a number of claimants
approaching the high court to review the RAF’s decision. They challenged the legality
of the substituted RAF 1 form, the management directive, the board notice, as well as
the constitutional validity of regulation 7(1). This case was heard by the full court of
the Gauteng Division, Pretoria, as Mautla and Others v The Road Accident Fund and
Others (Mautla I).13 On 15 June 2021, the full court interdicted the RAF from
implementing Board Notice 58 of 2021 and the substituted RAF 1 form. The full court
also declared regulation 7(1) to be unconstitutional and invalid insofar as it delegated
regulatory authority to the RAF. Leave to appeal the full court’s decision was refused
by the high court. This Court also refused leave to appeal. However, a reconsideration
by the high court. This Court also refused leave to appeal. However, a reconsideration
application under s 17(2)(f) of the Superior Courts Act 10 of 2013 was granted by the
9 Section 24(4)(a) of the RAF Act.
10 Section 23 of the RAF Act.
11 This board notice was published in the Government Gazette under GN 44674, GG 671, 4 June 2021.
12 RAF Regulations, GN 44747, GG 672, 22 June 2021.
13 Mautla and Others v Road Accident Fund and Others [2023] ZAGPPHC 1843; 2023 JDR 4259 (GP)
(6 November 2023) (Mautla I).
8
President of this Court. Road Accident Fund and Others v Mautla and Others (Mautla
II)14 was heard by the Supreme Court of Appeal during the last term of 2025 , and
judgment was handed down on 19 December 2025. This Court did not address
whether the RAF had the power under the Act to adopt and implement the board
notice, or whether the Minister could delegate his powers to the Fund. It merely
granted leave to appeal to this Court based on the pending appeal in the current
matter.
[12] Apparently, in response to the Mautla I decision in the high court , on
22 June 2021, the RAF published Board Notice 65 of 2021, the effect of which was to
withdraw Board Notice 58 of 2021, and to suspend the effective date of the substitution
of the RAF 1 form.15 This withdrawal meant that the 2008 RAF 1 form remained in
operation for the time being. At the same time, the RAF published Board Notice 66 of
2021, titled ‘Draft Terms and Conditions Upon Which Claims for Compensation Shall
Be Administered’ and called upon interested parties to submit their comments within
30 days.16 Various of the respondents in the present matter submitted comments in
response thereto.
[13] Eleven months later, on 6 May 2022, the RAF again sought to amend the RAF 1
form by publishing Board Notice 271 of 2022, the first impugned decision in this
matter.17 Its avowed purpose was to enable the RAF to ‘ effectively and efficiently
administer claims’ by stipulating ‘Terms and Conditions Upon Which Claims for
Compensation Shall Be Administered.’ These amendments were purportedly provided
for in terms of regulation 7 and set out new mandatory requirements for lodging claims.
Board Notice 271 went further by dictating conditions for payment , such as the
requirement of a valid tax clearance certificate, notwithstanding that the claims had
been settled and that the settlement agreement had been made an order of court.
14 Road Accident Fund and Others v Mautla and Others [2025] ZASCA 200; 2025 JDR 5385 (SCA) (19
14 Road Accident Fund and Others v Mautla and Others [2025] ZASCA 200; 2025 JDR 5385 (SCA) (19
December 2025) (Mautla II).
15 See fn 12 above.
16 RAF Regulations, GN 44747, GG 672, 22 June 2021.
17 See fn 4 above.
9
[14] The RAF published other board notices on 27 and 31 May 2022,18 respectively.
The first board notice substituted the RAF 1 form dated 21 July 2008 with the terms
and conditions set out in Board Notice 271 of 2022. The other board notice, dated 31
May 2022, withdrew the substitution set out in the previous board notice dated 27 May
2022, but did not withdraw Board Notice 271 of 2022, the first impugned decision,
which remained intact.
[15] On 17 June 2022, a memorandum drafted by the Acting Director-General to the
Minister entitled ‘Request the Honourable Minister to Approve the Publication of the
Revised Road Accident Fund Form 1 for Incorporation into the Road Accident Fund
Regulations’ was sent to the Minister of Transport. The memorandum references
Mautla I, which it noted resulted in an application being instituted against the RAF on
the basis that it does not have the requisite power to amend the RAF 1 form. It referred
to an internal meeting where it was agreed that the power to make regulations resided
with the Minister in terms of s 26, and not the RAF. It was considered expedient that
the Minister publish the RAF 1 form. Accordingly, the recommendation was that the
Minister approve the publication of the revised RAF 1 claim form and incorporate it
into the RAF’s regulations.
[16] On 30 June 2022, the Minister signed off on the recommendation, and on
4 July 2022, the Minister published Board Notice 302, which incorporated the new
RAF 1 form under the Minister’s regulation-making powers. The Minister’s decision is
the second impugned decision. The RAF’s position was that the Minister had
‘validated’ the terms and conditions contained in the RAF 1 form and began enforcing
compliance with those requirements retrospectively.
Litigation History
[17] The respondents, as applicants in the high court, instituted review proceedings
in the Gauteng Division of the High Court, Pretoria on the basis that the two impugned
in the Gauteng Division of the High Court, Pretoria on the basis that the two impugned
18 RAF Regulations, GN 46422, GG 683, 27 May 2022 and Road Accident Fund Regulations, GN
46456, GG 683, 31 May 2022.
10
decisions, Board Notice 271 and Board Notice 302, were both procedurally and
substantively illegal. A challenge to regulation 7(1) of the 2008 RAF regulations was
also instituted.
[18] The respondents sought that the decisions be reviewed and set aside in terms
of s 8(1) of PAJA, alternatively in terms of the principle of legality. They challenged
regulation 7(1) to the extent that it purported to empower the RAF , rather than the
Minister, to amend or substitute the RAF 1 form. The challenge to the legality of the
RAF 1 form before the full court was that the Minister adopted the RAF 1 form ‘with an
ulterior motive, under unlawful dictation, without regard to the requirements of
procedural fairness, and by recourse to irrelevant considerations’.
[19] The respondents alleged that the RAF had usurped the Minister’s legislative
power by issuing Board Notice 271 and that the Minister merely rubber -stamped the
RAF’s dictates by issuing Board Notice 302. By doing so, both parties failed to comply
with their constitutional and statutory obligations to the public and, more specifically,
to the rights of motor accident victims. Accordingly, the new requirements for lodging
claims undermined the social-security purpose of the state by unjustifiably denying or
delaying compensation to deserving claimants.
[20] The matter was heard by a full court , which found both board notices were
unlawful and set them aside . It was of the view that it did not need to determine the
legality of the delegation of power that led to the publication of regulation 7(1).
[21] The full court noted that the only record of the Minister’s decision was confined
to the memorandum, as the Minister did not file any papers. With no evidence before
it, the full court held that the Minister must have regard to the contents of the RAF 1
form in order to determine whether the adoption and publication of the form was, as
s 26(1) of the Act requires, necessary or expedient to achieve or promote the object
s 26(1) of the Act requires, necessary or expedient to achieve or promote the object
of the Act. Considering that there was no evidence to point to the fact that the Minister
complied with s 26(1) of the Act, the full court was of the view that this was sufficient
11
to render the decision of the Minister unlawful as it failed to meet the requirement of
rationality and legality. The court also found the Minister ’s decision unlawful for want
of a public enquiry and consultation as required by s 4(1) of PAJA.
[22] With regard to Board Notice 271, the full court held that it is for the Minister to
make the regulation prescribing the content of the form to be completed to make a
claim for compensation, with the board only enjoying the power to make
recommendations to the Minister. The full court pointed out that what the board notice
requires is that the listed documents be included as part of the claim’s supporting
documents when lodging a claim with the fund, a terrain that is regulated by s 24.
[23] Ordinarily, having reached the conclusion it did, the full court would have set
aside the decisions and remitted them for reconsideration. However, considering that
there needed to be a regulatory regime in place for claims to be lodged, and that there
were claimants who had successfully lodged claims using the regime created by the
RAF 1 form and the board notice (as well as those whose claims had failed), their
positions needed to be considered. As a result, the court ultimately ordered that the
RAF revert to the RAF 1 claim form that came into operation on 1 August 2008.
[24] The RAF filed an application for leave to appeal against the full court judgment
and was granted leave to appeal to this Court on limited grounds. The grounds of
appeal advanced by the RAF were that the RAF 1 form does not constitute a regulation
and, consequently, does not qualify as administrative action. It submitted that the
publication of the RAF 1 form does not amount to the making of subordinate legislation
constituting an administrative action and therefore c annot be reviewed in terms of
PAJA. The full court was of the view that there were no prospects of success.
However, the finding in Mautla I, which held that the RAF lacked the power to issue
However, the finding in Mautla I, which held that the RAF lacked the power to issue
the RAF 1 form, was on appeal before this Court , and the outcome could have an
impact on this matter.19 Further, the full court took the view that there were reasons of
19 This was factually incorrect but nothing turns on it. A petition for leave to appeal was refused, However
the matter was heard by this Court pursuant to an application for reconsideration in terms of s 17(2) (f)
of the Superior Courts Act 10 of 2013).
12
public policy as to why the Supreme Court of Appeal should be the ultimate arbiter on
the matter. Having taken these considerations into account, the full court granted leave
to appeal only in respect of that part of the order which declared Board Notice 271
invalid. The RAF successfully petitioned this Court for special leave on those issues
on which the full court had not granted leave to appeal. It is therefore the entirety of
the judgment and all the orders that are on appeal before us.
In this Court
[25] The RAF, in its heads of argument, submitted that the full court erred in finding
that:
(a) The RAF 1 form constituted administrative action under PAJA.
(b) The Minister adopted the RAF 1 form solely to resolve a dispute between the
Minister and the RAF over who had the authority to publish the form.
(c) The Minister failed to observe his obligations under s 7(2) of the Constitution.
(d) The publication of the board notice constituted the exercise of a
regulation-making power and thus fell outside the RAF’s remit , which finding
was made without the full court having properly considered the RAF’s statutory
powers and responsibilities.
(e) The full court’s reliance on the principle of sufficiency , as espoused by Road
Accident Fund v Busuku,20 was misapplied without proper consideration of the
context and purpose of the new claim form.
[26] At the commencement of th is hearing, counsel for the RAF made important
concessions. First, the issue of the constitutionality of regulation 7 was abandoned for
determination in Mautla II. Second, the RAF conceded that it was in no position to
defend the decision of the Minister who had elected not to oppose the application and
had not filed an affidavit explaining the reasons for his decision. This effectively
eliminated all those grounds of appeal where the RAF attempted to justify the
Minister’s decision and limited the RAF’s challenge to Board Notice 271. It was
Minister’s decision and limited the RAF’s challenge to Board Notice 271. It was
accepted that if the RAF 1 form constituted administrative action, then the appeal must
20 Road Accident Fund v Busuku [2020] ZASCA 158; 2023 (4) SA 507 (SCA) (Busuku).
13
fail.
The Minister’s Decision
[27] Board Notice 302, the impugned decision of the Minister, states ‘The Minister
of Transport, in terms of section 26 of the Road accident Fund Act, 1996 (Act No. 56
of 1996) herewith prescribe[s] the RAF Form 1 in the Schedule’ . The schedule sets
out the RAF 1 form, which, inter alia , includes the additional documentation and
mandatory information required by the RAF’s Board Notice 271.
[28] The only document proffered as to the reason for the Minister’s decision to
prescribe the amended RAF 1 Form is the memorandum from the Acting
Director-General of Transport referred to above. This was obtained pursuant to an
application to compel. If regard is had to the content of the memorandum, it appears
to apprise the Minister of recent developments in Mautla I. It sets out that the
Department of Transport’s view that all forms must be prescribed by regulation, which
is defined in s 1 of the Act to mean prescribed by regulation under s 26 of the Act .
Section 26 empowers the Minister, and not the RAF, to make regulations. It goes on
to state that: ‘[t]he RAF 1 Form forms part of the Regulations ; therefore, the RAF Board
cannot exercise the power to prescribe forms. In terms of section 11 of the RAF Act, the RAF
is only empowered to make recommendations to the Minister in respect of any regulations to
be made under the RAF Act .’21 The memorandum explained that at a meeting held on
16 May 2022 between the RAF and the department, it was agreed that it ‘may be
expedient and advantageous that the Minister publish the RAF 1 Form’.22
[29] The memorandum correctly states that the RAF’s power to administer a claim
under s 4 does not extend to the making of regulations to prescribe what the form must
contain to lodge a valid claim. It is the preserve of the Minister in terms of s 26 of the
Act to make regulations regarding any matter. Section 4 of the Act empowers the RAF
to stipulate terms and conditions upon which claims for compensation shall be
to stipulate terms and conditions upon which claims for compensation shall be
21 Memorandum from the Department of Transport date June 2022 para 3.14.
22 Memorandum from the Department of Transport date June 2022 para 3.16.
14
administered. To ‘prescribe’ in terms of the definition means ‘by regulation under
section 26’. The proviso to s 26 is that the Minister may make regulations which are
‘necessary or expedient to achieve or promote the objects of the Act’.
[30] There is no evidence that any consideration was given to whether the regulation
was necessary or expedient to achieve the purpose of the Act, which, as we know, is
to compensate accident victims for damages suffered. To the contrary, the regulation,
by introducing the new RAF 1 form, placed substantial impediments in the way of
accident victims’ claims through more stringent requirements. This goes against the
tenor of cases which have taken a more permissive approach when considering
whether a claim form was compliant . It has been held that ss 24(1)(a) and (4) of the
Act which set out the requirements for a valid claim form, are considered directory and
not peremptory.23 As such, ‘substantial compliance with such requirements suffices’.24
This Court has recently revisited the issue in Busuku, affirming the principle of
substantial compliance and further holding that the RAF 1 form does not call for
detailed information.25
[31] The next question is whether the Minister’s decision constituted administrative
action as defined in PAJA . Section 1(b) of PAJA provides that administrative action
includes any decision taken by an organ of state that ‘adversely affects the rights of
any person and which has a direct external legal effect […].’ As an organ of state, the
Minister exercised a public power in prescribing the RAF 1 form under s 26 of the Act.
The Minister’s decision has adversely affected claimants, as it requires them to submit
an extended prescribed set of documents to the RAF in order for a claim to be valid.
Since then, the RAF has been rejecting claims without giving reasons for refusing to
accept their claims. The claim form is the statutory gateway to access compensation
under the Act.
under the Act.
23 Pithey v Road Accident Fund [2014] ZASCA 55; 2014 (4) SA 112 (SCA); [2014] 3 All SA 324 (SCA)
para 19.
24 Busuku para 14.
25 Ibid para 16.
15
[32] Section 23(3) of the Act provides that no claim lodged in terms of s 23(1) read
with ss 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from
the date on which the cause of action arose. Lodgement thus extends the ordinary
period of prescription by two years. The contents of the RAF 1 form directly affect what
is required of persons to lodge a claim. It thus has a direct, external legal effect on the
period of prescription, which adversely affects the rights of persons who wish to lodge
claims under the Act. The RAF 1 form accordingly falls within t he definition of
administrative action under PAJA, and thus constitutes administrative action.
[33] The full court ’s finding that the Minister’s decision constituted administrative
action on the basis of the holding of plurality in the Constitutional Court in Minister of
Health and Another v New Clicks South Africa (Pty) Ltd and Others,26 is unassailable.
There, the Constitutional Court characterised the making of delegated legislation as
an essential part of public administration , and to hold that it does not constitute
administrative action would be contrary to the Constitution.27 Although there may be a
number of exclusions , these did not include the making of regulations. 28 This Court
has repeatedly found that the making of regulations by a Minister constituted
administrative action within the ambit of s 33 of the Constitution and of PAJA. 29 In
Esau, this Court agreed with both the finding in New Clicks and Cable City that the
making of regulations was administrative action. When the RAF board and the Minister
took the impugned decisions to promulgate binding requirements that affect the
public’s ability to claim compensation, they were exercising public powers of an
administrative nature.
[34] Once the making of regulations is found to be administrative action, there are
several prescripts in terms of PAJA to be complied with. The Minister did not comply
several prescripts in terms of PAJA to be complied with. The Minister did not comply
26 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14; 2006
(2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (New Clicks).
27 Ibid paras 95-101.
28 Ibid para 126.
29 City of Tswane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZASCA 87; [2010] 1 All SA 1
(SCA); 2010 (3) SA 589 (SCA); 72 SATC 285 (Cable City), para 10; Esau and Others v Minister of
Co-Operative Governance and Traditional Affairs and Others [2021] ZASCA 9; [2021] 2 All SA 357
(SCA); 2021 (3) SA 593 (SCA) (Esau), paras 77-83.
16
with the requirements of s 4(1) of PAJA30 which sets out the procedure to be followed
where the rights of the public are affected. He failed to follow the prescribed notice and
comment procedure, nor was a public enquiry held. The fact that the RAF called for
public comment in Board Notice 66 of 2021,31 did not absolve the Minister of his own
obligations under s 4 of PAJA.
[35] The respondents rely on s 6(2)(e)(iii)32 of PAJA to allege that the Min ister’s
decision was made for an ulterior motive ; s 6(2)(e)(iv)33 in that it was on the
unwarranted dictates of the RAF , and s 6(2)(e)(vi)34 in that it was taken arbitraril y. If
one has regard to the memorandum and its apparent purpose to obviate the dispute
as to who has the power to prescribe the RAF 1 form, there is merit in this submission.
While the section does not prevent the Minister from taking advice , he is prohibited
from merely rubber-stamping a decision which he should have taken himself. In the
absence of an affidavit or reasons in terms of rule 53(1)(b), of the Uniform Rules of
Court, the evidence before us suggests that the Minister agreed to gazette the form,
not for legitimate public -interest considerations but to side -step an internal dispute
between the Department of Transport and the RAF. There is nothing before the Court
which is indicative of an independent decision -making exercise on the part of the
Minister.
[36] On PAJA grounds alone , the Minister’s decision is fatally flawed for want of
procedural fairness. But it does not end there. As stated earlier, t he Minister did not
30 Section 4 of PAJA provides that:
‘Administrative action affecting public
(1) In cases where an administrative action materially and adversely affects the rights of the public, an
administrator, in order to give effect to the right to procedurally fair administrative action, must decide
whether-
(a) to hold a public inquiry in terms of subsection (2);
(b) to follow a notice and comment procedure in terms of subsection (3);
(b) to follow a notice and comment procedure in terms of subsection (3);
(c) to follow the procedures in both subsections (2) and (3);
[…]’
31 See fn 15 above.
32 Section 6(2)(e)(iii)of PAJA provides that ‘the action was taken because irrelevant considerations were
taken into account or relevant considerations were not considered’.
33 Section 6 (2)(e)(iv) of PAJA provides tha t ‘the action was taken because of the unauthorised or
unwarranted dictates of another person or body’.
34 Section 6(2)(e)(vi)of PAJA provides that: ‘the action was taken arbitrarily or capriciously’.
17
consider whether the regulation was necessary or expedient as enjoined by statu te.
Furthermore, there is no rational connection between the decision taken and the
purpose for which the power was given. Rationality is a minimum threshold for lawful
administrative action. It is of little consequence whether the decision should be set
aside under PAJA or on the principle of legality; the exercise of public power is
reviewable under both. Therefore, on either ground, the Minister’s decision to approve
and gazette the RAF 1 form is unlawful and falls to be set aside.
Board Notice 271 of 2022
[37] Once Board Notice 302, the Minister’s decision, is set aside, what is the status
of Board Notice 271? Board Notice 271, which sets out the further requirements for a
valid claim, expressly states that ‘[t]he implementation of these terms and conditions
shall be effected with the due and necessary amendment of the RAF 1 claim form, as
provided for in Regulation 7(1) of the Road Accident Fund Regulations, 2008’.
[38] From the above , it is apparent that for the board notice to be ‘validated’, it
requires the Minister to make a regulation to that effect. In its own terms , board
notice 271 is of no force and effect without the ‘necessary amendment’ of the RAF 1
form, as provided for in the regulations. Board Notice 271 is inextricably linked to the
validity of the Minister’s decision, which counsel for the RAF has already conceded he
cannot defend. It has no separate legal existence. The board notice is rendered
ineffective once the Minister’s decision is set aside. This being the case, should the
Minister’s decision be set aside, then Board Notice 271 automatically falls with it.
[39] In conclusion , because the Min ister’s decision cannot stand, nor can Board
Notice 271. The impugned RAF 1 form is thus unlawful and falls to be set aside. This
means that the status reverts to that in operation under the 2008 regulations. The RAF
means that the status reverts to that in operation under the 2008 regulations. The RAF
complains that, whilst it cannot defend the decision of the Minister, it would be unfair
to force it to revert to the same ‘skeletal’ form which is causing backlogs in the
operating system of the RAF.
18
[40] The full court was cognisant of the implications of such a situation and
addressed these in its orders at (v) to (ix), which provides as follows:
‘(v) It is declared that Claimants whose claims were accepted by the Second Respondent (‘the
RAF’) to have been lodged in compliance with the Board Notice and/or the RAF 1 Form are
deemed to have been lodged in terms of the RAF Act, and the RAF will continue to investigate
and process these claims as lodged claims;
(vi) From 6 May 2022, the prescribed form contemplated in s 24 (1)(a) of the RAF Act shall be
deemed to be the RAF 1 third party claim form (‘the 2008 RAF 1 Form), forming part of the
Regulations published by the Minister on 7 July 2008 in Government Gazette No 31249, until
such time as the Minister prescribes an amendment to the 2008 RAF 1 Form in terms of s 26
of the RAF Act;
(vii) Claimants who sought the lodgement of their claims in terms of the Board Notice or the
RAF 1 Form, but lodgement 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 lodgement will enjoy the
benefits of such lodgement as from the date on which lodgement was originally sought by
them;
(viii) The RAF will take all reasonable measures to inform Claimants referenced in (v) and(vii)
above of the contents of this order, which measures shall include the publication of this order
in at least three newspapers circulated nationally, and, in addition, the RAF will take
reasonable measures to inform the public of this order;
(ix) The Minister is ordered to adopt and publish a revised RAF 1 Form within 6 months hereof.’
[41] Aware of the implications of its order , the full court carefully tailored an order
that would address the harm and the claimants’ rights while preserving regulatory
coherence. The remedy is equally applicable today and should remain, other than the
coherence. The remedy is equally applicable today and should remain, other than the
date in order (vii), which should be amended accordingly.
[42] As regards costs, there is no reason why costs should not follow the result.
The following order is made:
1 The appeal is dismissed, with costs including the costs of two counsel where
so employed.
2 The date in paragraph (vii) of the high court order is amended to
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30 September 2026.
C E HEATON NICHOLLS
JUDGE OF APPEAL
20
Appearances:
For the appellants: J Motepe SC
Instructed by: Malatji & Co Attorneys, Johannesburg
Honey & Partners Incorporated,
Bloemfontein
For the first respondent: J P van den Berg SC, with E van AS
Instructed by: Adams & Adams Attorneys, Pretoria
Lovius Block Incorporated, Bloemfontein
For the fourth to seventh respondents: B P Geach SC, with B Bester
Instructed by: Van Dyk Steenkamp Attorneys Inc.
Roodeplaat
Symington De Kok Incorporated,
Bloemfontein
For the eighth respondents: N Ferreira, with D Sive
Instructed by: A Wolmarans Attorneys Inc, Randburg
A Wolmarans Attorneys Inc, Randburg
Bloemfontein
For the ninth respondent: C G Jordaan, with A C J van Dyk
Instructed by: Loubser Van Wyk Attorneys, Pretoria
Kramer Weihmann Incorporated,
Bloemfontein.