20 MARCH 2024 1:15 PM
High Court of South Africa Gauteng Division Pretoria

On Wednesday 20 March 2024 a full bench of the Gauteng division of the High Court, Pretoria declared as unlawful and set aside Board notice 271 of 2022 published in the Government Gazette on 6 May 2022. The new RAF1 Claim form published by the Minister of Transport in terms of Section 26 of the Road Accident Fund Act on 4 July 2022 was also declared unlawful and reviewed and set aside.

The ruling provides a long-anticipated outcome to the review application brought by the Legal Profession’s Indemnity Insurance Fund (“LPIIF”) in 2022 against the RAF, its CEO chair of the Board, The Minister of Transport and the Legal Practice Council. Various parties (no less than 10) intervened in the application. The Pretoria Attorneys Association (‘PAA’) joined the proceedings as Amicus Curiae. This was done to assist the court and simultaneously also to represent the interests of our members.

At the heart of the review application was the RAF’s new claim submission requirements which made it compulsory for prospective claimants to submit a long list of documents and details in order for the claim to be accepted by the RAF. The tried and tested principle of substantial compliance borne out by more than 20 years of case law since the inception of the new RAF Act was replaced by the RAF’s new model of ‘strict compliance’.

New claims not checking all of the tickboxes for these new requirements (which include medico-legal reports, SARS tax returns, salary slips and a letter from SASSA confirming that the claimant is not receiving a SASSA grant) would not be accepted by the RAF. In fact, such claims were not registered on the RAF’s claims system, and thus not given a claim number or a link number.

In their judgment Judges Malopa Sethosa, Unterhalter and Motha made specific reference to the contribution of the PAA as Amicus:

“First, the Minister is required by s7(2) of the Constitution to respect, protect and promote the rights in the Bill of Rights. As the Amicus reminded us, many persons in our country are poor, too many have compromised literacy, and many have limited access to legal services. The lodging of a claim is an essential step in seeking compensation under the RAF Act. The RAF 1Form … must not become an instrument that obstructs valid claims, and by so doing visits unfair discrimination upon poor people contrary to s 9(3) of the Constitution. Nor may the RAF 1Form infringe the rights of persons to dignity (s10), security of the person (s12), or access to the courts (s34)… But we do afirm that the Minister would need to bring the constitutional rights of persons who would lodge a claim into the reckoning in deciding upon the contents of an RAF 1 Form. There is no evidence that the Minister did so, and hence the Minister is in default of her obligation to observe s 7(2) of the Constitution. This too renders the publication of the RAF 1 Form unlawful.”

Legal practitioners dealing with RAF matters are advised to study this judgment, and order detailing what is required of them in terms of claims previously submitted in great detail.

The PAA is immensely proud of the contribution it was able to make in this matter. If you are not yet a member of the PAA please do visit our website to join thus enabling us to continue the good work we do to the benefit of the Legal Profession.

The judgment can be downloaded below.