RAF loses second court battle over claims paperwork
The high court in Pretoria has for the second time scrapped the Road Accident Fund’s (RAF’s) attempts to impose onerous new requirements on traffic accident victims seeking compensation from the fund.
In a judgment handed down on Wednesday, a full bench ruled that a board notice and linked RAF1 form published in May 2022 setting out new requirements for lodging claims were unlawful and set them aside. The court ordered the transport minister to devise a new version within six months, and said claimants who had failed to meet these mandatory requirements could resubmit their claims using the simpler RAF1 form that was brought into effect in 2008. The ruling has wide-reaching implications, as tens of thousands of unsuccessful claimants may now have a second chance at securing compensation for their injuries.
The RAF is a statutory body established to compensate victims of road traffic accidents. It received more than 92,000 new claims in 2022/2023, according to its annual report. The body is funded by a fuel levy on sales of petrol and diesel, now set at R2.18/l. Victims of negligent drivers can claim for medical expenses and loss of earnings.
However, the RAF is mired in many court cases, and is petitioning the Supreme Court of Appeal for leave to appeal against a November judgment that set aside an RAF1 form that was in force from March 8 2021 to June 15 2021. In that matter, the high court declared that the board notice linked to this form was unlawful, unconstitutional and at odds with the organisation’s obligation to compensate victims of traffic accidents.
Until recently, accident victims were not expected to submit extensive documentation when they lodged claims and were able to provide further paperwork as matters progressed. That changed in 2021 when the RAF upped its requirements to include police accident reports, financial statements and medico-legal reports, without which claims were considered incomplete and invalid.
In the latest case the high court noted that many people in SA were poor, with compromised literacy and limited access to legal representation. “The lodging of a claim is an essential step in seeking compensation under the RAF Act. The RAF1 form must not become an instrument that obstructs claims, and by doing so visit unfair discrimination upon poor people,” it said.
As in the previous matter, the court ruled that the RAF had overstepped its powers in publishing the board notice paving the way for the new RAF1 form that came into effect in May 2022. It was thus declared unlawful and set aside.
The court found there was no evidence that the transport minster at the time, Fikile Mbalula, had conducted public consultation on the RAF1 form’s mandatory documentation requirements or applied his mind to its contents before publication in the Government Gazette, and it too was therefore ruled unlawful and set aside. His decision had
“failed to meet the most basic requirements of rationality and legality”, the judges said.
The judgment was a victory for the tens of thousands of road accident victims who sought compensation each year, said JP Rudd, who represented the Legal Practitioners Indemnity Insurance Fund (LPIIF) in the matter. The ruling had implications for medical experts and hospitals, he said. The case was brought by the LPIIF, ambulance service WE Emergency Response Team, five accident victims and three law firms specialising in claims against the RAF, minister of transport, the RAF chair and CEO and the Legal Practice Council.
RAF spokesperson McIntosh Polela said the contested form had been introduced to smooth the way for claimants.
“The RAF1 form was introduced to make it easier for legal practitioners to lodge claims on behalf of claimants, and to assist lawyers to settle claims faster. It is obviously not in the interest of legal practitioners to settle claims faster, because they lose out on legal and administrative fees, hence they favour having claims unnecessarily dragging on for much longer,” he said.