Introduction:
This is a judgment born out of two separate personal injury claims. For the first Plaintiff, in which Advocate Anton Knoetze was appointed as the curator ad litem obo a minor child who was involved in a motor vehicle accident on 2 September 2017 wherein the minor child had sustained multiple injuries inclusive of neurological and orthopaedic injuries. For the second Plaintiff, an adult male person who was involved in a separate motor vehicle accident in which he likewise sustained injuries.
Background:
In both cases, the Road Accident Fund (RAF) failed to enter an appearance to defend, and both matters were set down for default judgment before the Pretoria Division of the High Court.
The then Acting Judge President (AJP) Ledwaba issued a section 14(1)(a) of the Superior Courts Act1, which speaks to the manner of arriving at a decision by a Division and directs that:
“When sitting as a Court of first instance, the Division must be constituted before a single Judge for the hearing of a civil matter, but the Judge President (JP), or in the absence of both the JP and the Deputy Judge President (DJP), a senior Judge may at any time direct that a matter be heard by a Court consisting of not more than three (3) Judges as he/she may determine.”
Issues for determination by the Full Court:
The then AJP referred the following enquiries for determination by the Full Court:
1. Whether is it competent for the court to order that a plaintiff’s claim for Future Medical Expenses (FME) be compensated by the RAF by way of an undertaking issued in terms of section 17(4)(a) of the Road Accident Fund Act (RAFA)2 where default judgment is granted in the absence of an election by the Fund to furnish such undertaking. 2. Having regard to specific obligations placed upon the Fund as set out in Regulation 3(3) (dA); 3(4) of the RAF Regulations3, is the plaintiff entitled to pursue the adjudication of general damages at trial or in the default trial roll, in the absence either of the Fund having accepted the injuries in question as constituting serious injury as contemplated in section 17(1A) of RAFA or of assessment of such injuries as constituting serious injury by an appeal tribunal in accordance with Regulation 3.
The legislation:
Section 17(4)(a) of the RAFA provides that:
“Where a claim for compensation under subsection 1 includes costs for future accommodation of any person in hospital or nursing home or treatment or rendering and supplying of goods to him or her, the Fund shall be entitled, after furnishing the third party concerned with an undertaking to that effect or a competent court has directed the Fund to issue undertaking, to compensate such third party in respect of the said costs incurred and on proof thereof or the provider of such service or treatment directly.”
On the other hand, Regulation 3(3)(dA) of the RAF Regulations provides that: “If the Fund is not satisfied that the injury has been correctly assessed, it shall reject the serious injury assessment report and furnish the third party with reasons for the rejection.”
Regulation 3(4) of the RAF Regulations stipulated that:
“If a third party wishes to dispute the rejection of the serious injury assessment report, or in the event of either the third party or the Fund disputing the assessment performed by a medical practitioner in terms of these regulation, the disputant shall within 90 days of being informed of the rejection notify the registrar that the rejection is being disputed by lodging a dispute resolution with the registrar.”
Further, section 17(1A) of the RAFA provides:
“The Fund shall be liable for compensation arising from the driving of a motor vehicle where the identity of the owner or driver has been established, for any loss or damage which the third party has suffered as a result of any bodily injury caused by the driving of a motor vehicle….”
Section 26(1A) of RAFA stipulates that:
“Without derogating from the generality of subsection (1), the Minister may make regulations regarding the method of assessment to determine whether, for purposes of section 17, a serious injury has been incurred; injuries which are, for the purposes of section 17, not regarded as serious injuries; the resolution of disputes arising from any matter provided for in this Act.”
Lastly, section 26(2) of the RAFA provides that:
“Any regulation contemplated in subsection (1) or (1A) may for any contravention of or failure to comply with its provisions or the provisions of this Act, provide for penalties of a fine or imprisonment for a period not exceeding three (3) months.”
Determining the first enquiry:
Counsel for the Defendant contended that the reason for many plaintiffs’ claiming directives from the Fund for undertakings, and the courts granting them is because of the ‘blanket election’ that has been in operation for decades to such an extent that it becomes a fact which is known that the courts may take judicial notice thereof.
The Court was further invited to consider the contents of the instructional video on the RAF website in which it advises that when claiming for FME, the Fund will give them an undertaking. The Court was further asked to consider the affidavit deposed by the Fund’s CEO which was filed in the joint hearing of the two matters, which reiterated that the Fund has indeed now made a ‘blanket election’ to furnish an undertaking to every claimant who is entitled to payment for FME.
A ‘blanket decision’ can be referred to as a choice or rule that applies to every person, group or situation in the same way, without looking at individual details or exception.
The Court found that in the circumstances, the Fund had not taken a ‘blanket election’.
It provided that an election to furnish an undertaking or to not should be a formal and conscious resolution by the Fund acting through its delegates.
Counsel for the Defendant confirmed that courts can now take the judicial notice of the above. Thus, the result is, once the Plaintiff has proven his case or claim as contemplated in section 17(4)(a), he is then entitled to claim an order catering for a direction to the Fund to furnish such an undertaking and a court is entitled to grant such order. This will also apply where orders are sought on default.
Counsel for the Black Lawyers Associates (BLA), as the amicus curae, argued that the use of the word “or” in section 17(4)(a) denote that the Fund might elect to issue an undertaking, alternatively, a court may direct the Fund to issue same.
The Court viewed that it is bound by the decision in Marine & Trade Insurance Co Ltd4 – that is:
“An undertaking is designed for the benefit of authorised insurers and has the effect, if invoked, of eliminating the uncertainties and imponderables inherent in having to adjudicate once and for all the quantum for future loss or damage. Its provisions however only apply if the insurer concerned elects to invoke it.”
The Court in its decision viewed that its interpretation followed the development of the wording of the section through its predecessors and had the due regard to the wording of the successive section, including the use of the word “or”.
Determining the second enquiry:
In answering the second enquiry, the Court referred to section 14(1A), section 26(1A) and section 26(2) together with the RAF Regulations.
In terms of Regulation 3 of the RAF Regulations, the third party whose injury has been correctly assessed in accordance with the prescribed methods, that is, the 30% Whole Person Impairment (WPI) or the Narrative Test, is obliged to obtain a serious injury assessment report from such a medical practitioner. It further provides that the RAF is liable to compensate the third party concerned if the claim is supported by the serious injury assessment report and if the Fund is satisfied that the injury concerned has been correctly assessed. If not, the Fund must, within 90 days of receiving the said serious injury assessment report by hand, accept or reject the serious injury report, or direct the third party to present themselves to the Fund for further assessment.
Counsel for the Plaintiff argued that the RAF was weaponizing its administrative silence and the legal defaults to effectively stall the finalisation of claims. They further submitted that if the Fund enters default, then they also fail to actively accept or reject the serious assessment report.
Counsel for the Defendant refused the Plaintiff’s submissions and submitted that the authority to accept or reject the serious assessment report is vested solely within the administrative arms of the Fund and further, if a dispute arise, or the Fund rejects the claim, the tribunal constituted under the Health Professions Council of South Africa (HPCSA), thus courts cannot have jurisdiction in administering duties even where the RAF is in default.
Counsel relied on the Supreme Court of Appeal (SCA) ruling in RAF v Duma5 wherein the SCA emphasised that the decision on whether the injury meets the legal threshold of non-pecuniary damages is an administrative issue and not a judicial one.
The Full Court accepted the submissions by the Counsel for the Defendant regarding Regulation 3 and ruled that both Plaintiffs are barred from pursuing the adjudication of general damages in open court if the Fund has not formally accepted the serious injury assessment or if the HPCSA has not finalised the assessment or their decision.
Decision:
The Full Court ruled that it is not legally competent for a Court to compel the Fund to issue an undertaking unless the Fund actively elects to do so. However, based on the directive and otherwise the concession by the CEO of the Fund referred to earlier, the Court in its further ruling provided that the Plaintiffs who successfully prove their injuries are entitled to receive an undertaking.
The Full Court further ruled that a Plaintiff cannot pursue a claim for general damages in open court if the Fund has not formally accepted the injury as being serious or if the HPCSA appeal tribunal has not finalised its assessment.
Conclusion:
While this judgment is considered a mixed ruling and a ‘victory’ for Plaintiffs, others may view it as a significant practical downside and a legal hurdle on the claimants.
With the two enquiries answered in the negative, one may wonder whether the envisaged right of access to courts is being infringed by the Fund in its absence to elect to cater for FME or taking a ‘blanket decision’ in determining the seriousness or otherwise correct assessment of the claimant’s injuries, by stripping off the courts of their powers.
While the judgment may be praised by many, the truth that lies with this judgment is that the rights such as the right to a fair hearing, the disruption of proper evidence and the protection of it thereof, the increased risk of fragmented litigation, and further incurring of costs on claimants, are all affected. One perhaps would say the time to put proper amendments to the RAFA is indeed now. Perhaps parliament needs to have a proper look at the legislation and properly clothe relevant authorities (Courts) with proper powers so as to afford claimants leniency and protection of their constitutionally protected rights while ensuring that courts do not end up with stagnant old matters left for adjudication.
References:
1. Knoetze obo Malinga & Another v RAF (77573/2018 & 549977/2020) [2022] ZAGHPHC 819. 2. Road Accident Fund Act 56 of 1996 (as amended). 3. Superior Courts Act 10 of 2013. 4. Road Accident Fund Regulations of 2008 (as amended). 5. Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A). 6. RAF v Duma 2013 (6) SA 9 (SCA).
Written by Mr Tshegofatso Mphela, Candidate Legal Practitioner, Polokwane and reviewed by Mr Thendo Negota, Attorney, Polokwane.
Footnotes
1 Superior Courts Act 10 of 2013.
2 Road Accident Fund Act 56 of 1996 (as amended).
3 Road Accident Fund Regulations of 2008 (as amended).
4 Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A).
5 RAF v Duma 2013 (6) SA 9 (SCA).