SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
+ REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 2241/ 2023
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 28/07/2026
SIGNATURE
In the matter between
K[...] G[...] OBO MINOR PLAINTIFF
and
THE ROAD ACCIDENT FUND. DEFENDANT
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This judgment was handed down electronically by circulation to the parties’ representatives by email.
The date and time for the hand-down of the judgment is deemed to be 28 July 2026 at 15H30
JUDGMENT
MONENE AJ
Introduction
[1] The plaintiff instituted action proceedings on behalf of her minor child
against the defendant for damages arising from a mo tor vehicle
accident which occurred on 27 March 2022 wherein the minor child was
a passenger.
[2] Merits or liability ha s already been settled 100 percent in the plaintiff’s
favour and t he parties are in agreement that this court’s jurisdiction on
the determination of general damages has, for the time being, been
ousted by the defendant’s failure to make an election regarding whether
the injuries sustained by the plaintiff are of a serious nature or not .
Quantum is still to be determined.
[3] The defendant raised a lodgment -stage based special plea of non -
compliance with section 24 of the Road Accident Fund Act 56 of
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1996(“The Act”) contesting the legal availability of the plaintiff’s claim for
loss of earnings and future medical care on the basis that the plaintiff’s
RAF 1 form had listed only general damages as a claim. This special
plea was the only aspect of this matter, which was argued before this
court. Heads of argument by both counsel were also only submitted in
relation only to this special plea.
[4] I proceed then to first determine the special plea, the one li ve issue
before me, the result of which will dictate whether the loss of earnings
and future medical care aspects are to be enrolled and entertained in
the future possibly with general damages or not.
The defendant’s special plea: Non -compliance with section 24 of Act 56
of 1996
[5] Pithily, the defendant’s gripe is that because the plaintiff’s RAF 1 form
submitted when lodging the claim only mentioned a claim of general
damages, all the other claims spoken to in the particulars of claim are
unenforceable for want of compliance with section 24 of the Act.
[6] The plaintiff contests the defendant’s special plea relying, in the main, on
the “once and for all rule”, a principle of our law of damages recently re-
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affirmed by the Supreme Court of Appeal in TN obo BN v The Member
of the Executive Council for Health of the Eastern Cape
Government and Others (383/23) [2026] ZASCA 14 . That rule or
principle provides that all damages must be claimed in single
proceedings and essentially be treated as an indivisible lump sum.
[7] Having given ear to the parties’ counsel making submissions before me
and perused their subsequently filed heads of argument on the issue, I
have no hesitation in dismissing the special plea on account of the
following considerations:
7.1 My reading of the purpose for which the RAF 1 form is to be submitted in
lodgment by a plaintiff is that it is meant, in the main, to give the Road
Accident Fund adequate facts to investigate a road accident pursuant to
settling or litigating. It is not a form aimed at educating the Fund, the
main organ versed with and charged with executing the Act, about what
claims are available in law on a given set of facts at all such that if a
particular head of damages is not listed in the form then it curiously
ceases to exist as part of a plaintiff’s claim. To argue context -divorced
strict compliance and raise points in limine of the kind raised in this
matter and claim that the peremptory tone of section 24 means that,
regardless of germaneness and peripherality, all t’s must be crossed
and all i’s dotted in the RAF 1 form if a claim is to begin to hold , is to
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completely misunderstand the purpose of the Act and consequently
miscarry justice. Such pedantic, obstructionist and vexatious legal
gymnastics are , in my view, constitutionally vulgar and generally
inconsistent with principles of fairness and justice in the context of an
Act whose mandate is social security in favour of and not against
vulnerable members of our society, particularly the indigent, the elderly
and the young. When the question is asked what prejudice is suffered
by the Fund if a form is incomplete on account of some peripheral
detail, there is always no satisfactory answer forthcoming from this
defendant which, it is my firm view, often miscomprehends its mandate
as one which must lean more in favour of miserly paying or not paying
victims at all as opposed to being a social security agent which is
supposed to be no self-serving ordinary litigant. Courts must never be
derailed by vexatious legal gymnastics and peripheral immaterial
compliance side -shows from interpreting the RAF Act as a social
security legislation aimed, as stated in Pithey v Road Accident Fund
(319/13) [2014] ZASCA 55 at para 18, “at the widest possible
protection and compensation against loss and damages for the
negligent driving of a motor vehicle. It must be interpreted purposively,
and technical defects should not defeat substantive rights. What is
required is substantial compliance not perfection”.
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7.2 The rationale of the once and for all principle, which has been applied in
different contexts relating to non -compliance with section 24 or alleged
prescription of parts of a plaintiffs’ claims, is, in my view, applicable in
this matter. In pith that rationale , as it informs my decision, can be
gleaned from the following strands of reasoning from a few authorities:
7.2.1 In Evins v Shield Insurance 1980(2) SA 814(A) Corbett JA expressed
the law as follows:
“A plaintiff who suffers bodily injury will at common law and under
legislation have a single cause of action in respect of damages
claimable by him whether such damages relate to patrimonial loss or
constitute a solatium for pain and suffering , disfigurement, disability,
etc.”
7.2.2 In Nonkwali v RAF (105/2007) [2008] ZASCA 3(6 March 2008) at
para 8 Maya J A (as she then was) captured the trite rationale as
follows:
“…Authorities are legion to the effect that a plaintiff who claimed for
damages sustained as a result of wrongful and negligent driving under
the Act’s predecessors had but a single, indivisible cause of action and
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that the various items constituting the claim were thus not separate
claims or separate causes of action...”
7.2.3 Close to home both factually and geographically, in Mthimkhulu v Road
Accident Fund (2608/2024) [2026] ZAMPMBHC 27(11 March 2026)
(“Mthimkhulu”) at paras 11 and 13, Mangena A J counselled as
follows:
“[11] The test in assessing whether a claim complies substantially with
the prescribed requirements is an objective one. The prescribed form
must be examined to see whether or not on all information it contains, a
reasonable insurer would have been prevented by any omission or
inaccuracy therein from properly investigating the claim and determining
its attitude towards it…”
“ [13] As I see it , failure by the claimant to indicate an amount for a
particular head of damage in the RAF 1 claim form cannot be a basis for
the fund to refuse to assess the claim for additional head of damages
submitted later through another RAF claim form or directly in the
summons when that claim arises from the same cause of action. This is
so because a delictual claim is based on a cause of action and not head
of damages…”
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7.2.4 In the same Mthimkhulu at para 17 , Mangena AJ dealt with the
unavailable refu ge which the defendant seeks from the contextually
distinguishable RAF v Busuku 2023(4) SA 507(SCA)(1 December
2020) and Zitha v RAF (228/ 2024) [2026] ZAMPMBHC 7(30 January
2026) in the following words with which I align myself completely:
“ As I see it, Zitha does not introduce a new approach to the
interpretation of the provision of section 24 of the RAF Act. It confirms
the correctness of all the previous judgements on this issue including
RAF v Busuku . The findings it makes in relation to the RAF claim form
was case specific and it is no authority for the proposition by the RAF
that a claimant cannot enforce a claim for heads of damages not
previously mentioned in the RAF claim form nor does it say that there
can be no instance where a claimant can submit an additional RAF
claim form. All what it says is that if this were to happen, the claimant
should be able to provide an explanation if required to.”
7.3 Section 24(5) of the Act provides that if the Fund does not, within sixty
days post lodgment of a claim, object to the validity of a claim then the
claim shall be deemed to be valid in all respects. I find that this deeming
provision applies in favour of the plaintiff on the following basis:
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7.3.1 In this matter there is on file a letter from the defendant dated 18 April
2023 and stamped 2 May 2023. This was in the backdrop of a lodgment
dated 18 April 2023. The content of the letter raises the same issues as
contained in the special plea, albeit, not as an objection per se but a
forewarning that such an objection may arise if further heads of
damages are claimed. However, nowhere does it appear on file when it
was, if ever, that the letter was served on the plaintiff or that the mooted
objection to the validity of the claim ever came to the plaintiff’s attention
prior to surfacing as part of the special plea two weeks before the trial
date. I am thus, absent proof of when it was that the plaintiff was served
with the alleged letter of objection , not persuaded that an objection can
be said to have been timeously raised within the requisite 60 days. Thus
a deeming of validity is called for.
7.3.2 Even if I be wrong in finding as above on the deeming provision
timeframes, I would still have declined to go along with the defendant’s
reasoning of invalidity of a claim premised solely on an omission of
claims which are clearly naturally and logically available in law to
claimants, more so to a minor passenger claimant. As already alluded
to above , I do not , for even a second , buy into the notion that the
defendant, the whole mighty Road Accident Fund , is a legal ignoramus
who needs to be advised in a RAF 1 about which particular heads of
damages are available in law on a set of facts and that the Fund is
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somehow prejudiced in its determination of a matter by an omission in
that regard. Such legalistic pretense or litigation subterfuge or burying
one’s head in the sand should , in my view, not even remotely wash it
with our courts in this constitutional era.
7.3.3 This court will always generally be loathe to being party to a highly
technical strict compliance approach the result of which would be to
shut access to justice to a child claimant in arrogant defiance to its
constitutional obligation to be an upper guardian of children. It would
rather defer to counsel from Murphy J in Center for Child Law and
Others v MEC for Education, Gauteng, and Others [2008] 1 SA
223(T) which was couched, in a different but relevant context, in the
following words:
“As a society we wish to be judged by the humane and caring manner in
which we treat our children. Our constitution imposes a duty upon us to
aim for the highest standard and not shirk from our responsibility.”
[8] Finding thus that the omissions in the RAF 1 did not and could not deter
the Fund’s pre-litigation investigation of the cause of action in casu and
that the defendant was in no way prejudiced thereby and further that the
best interest of the minor claimant cannot be sacrificed on the altar of
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needless, pedantic compliance, I determine there to be no merit in the
defendant’s special plea and am inclined to dismiss it.
[9] Beyond the issue of the special plea I would have, on the facts, and given
the general lethargic and laissez-faire way the defendant has
conducted itself in its prosecution of its defence in this matter ,
preferred to have gone on to determine the loss of earnings and future
medical expenses right away. As I have previously reasoned in other
matters of a similar matter such as Ramulongo v Road Accident
Fund (46/2017)[2024] ZALMPTHC 18 (6 February 2024) at para 1, I
see no reason why claims which ought to have been routinely settled
without litigation are delayed for years on end based on
unconscionable stratagems and general intransigence on the part of
the RAF. However, that is not before me to determine conclusively as I
was, despite the practice notes and pre -trial minutes, seized and
addressed only regarding the special plea as evidenced also by the
heads of argument filed post oral arguments in court. There are also
some questions regarding the rule 38(2) application expert affidavits
on file which, absent being addressed thereon by the plaintiff’s
counsel, may probably have been detrimental to the minor child’s
quantum claim if this court had gone on to be adventurous nonetheless
regarding quantum determination.
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[10] Similarly, the established practice in terms of the regulations, which ousts
our courts’ jurisdiction on general damages on the strength of a delaying
whim on the part of a litigant, the Fund, continues to sit distastefully in this
court’s mouth. I continue to fail to see how constitutionally palatable it is
for
a litigant to have as much a power as to determine what a court should
hear and decide or not. Courts are not, in my view, lacking in capacity to
determine any issue including whether an injury is serious for as long as
evidence is capable of being adduced before it. But then I digress as that
was not an issue before me for determination and because I remain a
captive of precedence and owe fidelity to established law and practices.
Costs
[11] The summons in this matter having been issued on 19 May 2023, it
boggles
this court’s mind why the special plea was only raised at the trial court’s
door in April 2026. I frown at that, rather sternly.
[12] The law on the once and for all rule and substantial compliance over and
above strict compliance nit-picking is established. The special plea
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appears to me like a last -minute delaying tactic or stratagem whose
failure
ought to reasonably have been foreseeable to the defendant.
[13] All these, in my view, raises the spectra of a costs order against the
defendant with a measure of punishment to reflect the court’s displeasure
with approaches of this manner.
Order
[14] In all the premises above, I order as follows:
14.1. The defendant’s special plea of non -compliance with section 24
of Act 56 of 1996 is dismissed with costs.
14.2 The defendant is ordered to pay to the plaintiff ’s costs attendant to
defending the special plea on an attorney and client scale
including counsel’s costs on scale C.
_________________________________
Malose Monene
ACTING JUDGE OF THE HIGH COURT
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MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
APPEARANCES
Heard on : 28 April 2026
Judgment delivered on : 28 July 2026
For the Plaintiff : N T Mthombeni
: Instructed by: M H Malepe Attorneys
: Tel: 031 690 1588
: Email: mhmalepeattorneys@telkomsa.net
For the Defendant : Mr. R C Mthevhula
: Instructed by: State Attorney,
Mbombela
Tel: 013 101 3722
Email: fulufhelos@raf.co.za
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