Personal Injury Claims: Version 003 / Learning Resources Reg 017

Personal Injury Claims
The syllabus is compiled by experts in practice.

Last reviewed by a panel comprising:
Eddie Hanekom (chair);

Riëtte Jooste
Naomi Williams
Corné van de Venter
Adele Steenberg
Publish Date: 01/01/2020
Version 003 / Learning Resources Reg 017
PLEASE NOTE THAT THIS GUIDE MAY NOT BE A CORRECT REFLECTION OF THE LAW AND/OR PRACTICE AT
THE MOMENT OF READING DUE TO LEGISLATIVE CHANGES AFTER PRINTING.
This guide records the views of the drafter.

There may be justifiable variations in practice.
The publishing of this manual was made possible through financial support of the
Legal Practice Council (via the Legal Practitioners Fidelity Fund).
Purpose
This is a Training Guide.
It is intended as a supplementary tool for purpose of the training at L.E.A.D’s Practical Legal
Training School and Courses.
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Topics
This material is updated annually. Updated practice manuals can be purchased from Legal Education &
Development [L.E.A.D®]:
Alternative Dispute Resolution Insolvency Law Magistrate’s Court Practice

Business Writing Skills Introduction to Practice Matrimonial Matters
Constitutional Law Practice Management Personal Injury Claims
Criminal Court Practice Labour Dispute Resolution Professional Legal Ethics
Customary Law Legal Costs Wills and Estates
Drafting of Contracts Legal Practitioners Accounting
Forms of Business Enterprise (Bookkeeping)
High Court Practice
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Personal Injury ClaIms
CONTENTS
A. AIM OF THE COURSE 1
B. LEARNING OUTCOMES 2
C. PRACTICE NOTES: ROAD ACCIDENT FUND CLAIMS 7

1. INTRODUCTION 7
1.1 BACKGROUND TO THE current LEGISLATION 7
1.2 OVERVIEW OF THE CURRENT ACT AND REGULATIONS 9
1.3 THE ORIGIN OF MOTOR VEHICLE ACCIDENT LEGISLATION 9
1.4 IMPORTANT TIME PERIODS: WHICH ACT TO APPLY 9
1.5 THOUGHTS ON HANDLING MVA CLAIMS 10
2. the Road Accident Fund Act 1996, Act No. 56 of 1996 before the amend-
ments of 1 august 2008: A SUMMARY 10
2.1 INTRODUCTION 10
2.2 FORMATION OF THE ROAD ACCIDENT FUND (THE “RAF”) 11
2.3 LIABILITY OF THE RAF 11
2.4 RAF WAS ONLY SUBSTITUTED FOR THE COMMON LAW WRONGDOER 11
2.4.1 CLAIM FOR COMPENSATION LIES AGAINST FUND ONLY 11
2.4.2 THE OWNER / DRIVER WAS RELIEVED OF COMMON LAW LIABILITY ONLY
TO THE EXTENT OF THE COVER PROVIDED FOR IN THE ACT 11
2.5 SECTION 18(1) LIABILITY OF RAF LIMITED UNDER PRECEDING LEGISLATION IN
RESPECT OF CERTAIN CATEGORIES OF PASSENGERS 12
2.6 THE SECTION 18(1) THAT HAD BEEN DELETED FROM 1 AUGUST 2008 12
2.6.1 THE CATEGORIES OF PASSENGERS THAT EXISTED UNDER THE PRECEDING
LEGISLATION 12
2.6.2 PRECEDING LEGISLATION: PASSENGERS CONVEYED WHILST RENDERING
MILITARY SERVICES OR UNDERGOING MILITARY TRAINING 14
2.7 CONSTITUTIONAL CHALLENGE TO LIMITED CLAIMS IN THE PRECEDING
LEGISLATION AND THE ROAD ACCIDENT FUND (TRANSITIONAL PROVISIONS) ACT,
15 OF 2012 15
2.8 ESSENTIAL COMPONENTS IN THE PRECEDING LEGISLATION 17
2.8.1 LIABILITY OF THE RAF IS AND REMAIN FAULT BASED 17
2.8.2 ONLY FOR BODILY INJURIES OR DEATH, AND BODILY INJURY INCLUDES
MENTAL INJURY 17
2.8.3 MUST HAVE BEEN CAUSED BY OR ARISING OUT OF THE DRIVING OF A
MOTOR VEHICLE 17
2.9 LIABILITY WAS EXCLUDED IN CERTAIN CASES SECTION 19 PRECEDING
LEGISLATION 18
2.9.1 LIABILITY SECTION 19(A) “FOR WHICH NEITHER THE DRIVER NOR THE
OWNER OF THE VEHICLE CONCERNED WOULD HAVE BEEN LIABLE BUT FOR
SECTION 21” 18
2.9.2 SECTION 19(b)(i) 18
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2.9.3 SECTION 19(b)(ii) – HOUSEHOLD MEMBERS UNDER THE PRECEDING
LEGISLATION 18
2.9.4 HANDLING OF CLAIM 19
2.9.5 MANDATE 19
2.9.6 REFUSAL / FAILURE TO SUBMIT TO MEDICAL EXAMINATION 19
2.9.7 DISCLOSURE OF EVIDENCE TO THE RAF
2.10 RIGHT OF RECOURSE 20
2.10.1 SECTION 22: DUTY OF SUBMISSION OF INFORMATION TO RAF; AND
THE RAF TO THE THIRD PARTY 2 20
2.10.2 SECTION 25: RIGHT OF RECOURSE OF FUND 20
2.11 COSTS: PARTY-AND-PARTY PAID EVEN AFTER SETTLEMENT 20
2.12 INTEREST / OFFER OF SETTLEMENT SECTION 17(3) OF THE RAF ACT 20
2.13 UNDERTAKINGS FOR PAYMENT OF: FUTURE MEDICAL AND HOSPITAL EXPENSES
SECTION 17(4)(a)
AND FOR: FUTURE LOSS OF INCOME AND FUTURE LOSS OF SUPPORT
SECTION 17(4)(b) 20
2.13.1 SECTION 17(4)(a) UNDERTAKING: 21
2.13.2 SECTION 17(4)(b) UNDERTAKING: 21
2.14 INTERIM PAYMENT 21
2.15 PROCEDURE TO LODGE CLAIM 22
2.15.1 SECTION 24 OF THE RAF ACT SETS OUT THE PROCEDURE TO CLAIM
COMPENSATION 22
2.15.2 SECTION 24(5) 22
2.15.3 SECTION 24(6) - NO SUMMONS BEFORE 120 DAYS HAVE LAPSED 22
3. PRESCRIPTION: CLAIMS AGAINST RAF 23
3.1 SECTION 23: THREE YEARS TO LODGE 23
3.2 SECTION 23(2) - PRESCRIPTION DOES NOT RUN 23
3.3 SECTION 23(3) - FIVE YEARS TO SERVE SUMMONS 23
3.4 DEPENDANTS’ CLAIMS 23
3.5 NO EXTENSION OF PRESCRIPTION IS POSSIBLE 23
3.6 REFERENCES TO PRESCRIPTION IN MVA CLAIMS IN ACTS BEFORE ACT 56
OF 1996 23
4. HIT-AND-RUN CLAIMS UNDER THE PRECEDING LEGISLATION (THE PREVIOUS
REGULATIONS BEFORE 1 AUGUST 2008) 25
4.1 INTRODUCTION 25
4.2 PRESCRIPTION 25
4.3 SPECIAL REQUIREMENTS FOR HIT-AND-RUN CLAIMS THAT HAD TO BE
COMPLIED WITH UNDER THE PRECEDING LEGISLATION 26
4.3.1 NEGLIGENCE OR OTHER WRONGFUL ACT 26
4.3.2 REASONABLE STEPS TO IDENTIFY 26
4.3.3 AFFIDAVIT TO THE POLICE – DECLARED UNCONSTITUTIONAL 26
4.3.4 PHYSICAL CONTACT – DECLARED ULTRA VIRES 26
4.4 CERTIFICATE de PROBABILIS CAUSA 27
4.5 INTERROGATION 27
4.6 GENERAL 27
4.7 ABANDONMENT OF CERTAIN ADDITIONAL REQUIREMENTS 27
4.8 PRESCRIPTION OF HIT-AND-RUN CLAIMS UNDER THE PRECEDING ACT 27
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PerSonAL Injury CLAImS
4.9 LOCUS STANDI 27

4.10 THE APPORTIONMENT OF DAMAGES ACT 27
4.11 JOINDERS 28
4.12 ASSESSMENT OF DAMAGES UNDER THE PRECEDING LEGISLATION 28
4.13 COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT 130 OF
1993 (“COIDA”): IT’S APPLICATION TO THE PRECEDING ACT 28
4.13.1 SECTION 35 COIDA 28
4.13.2 THE COMMISSIONER CAN CLAIM BACK FROM THE RAF: S 36 OF
THE COIDA 29
4.14 APPORTIONMENT 29
5. the Road Accident Fund Act 1996, Act No. 56 of 1996 AFTER The
amendments of 1 august 2008 29
5.1 FORMATION OF THE ROAD ACCIDENT FUND (THE “RAF”) 29
5.2 DEFINITIONs 30
5.3 LIABILITY OF THE RAF 30
5.3.1 SECTION 17(1) 30
5.3.2 SECTION 21(1): ABOLITION OF CERTAIN COMMON LAW CLAIMS 30
5.4 ESSENTIAL COMPONENTS IN THE CURRENT LEGISLATION 31
5.4.1 LIABILITY IS FAULT BASED 31
5.4.2 ONLY FOR BODILY INJURIES OR DEATH 31
5.4.3 MUST HAVE BEEN CAUSED BY OR ARISING OUT OF THE DRIVING OF A
MOTOR VEHICLE 32
5.4.4 THE DRIVER OF THE VEHICLE MAY HAVE BEEN ANY PERSON
WHOSOEVER 35
5.4.5 INJURY OR DEATH MUST HAVE BEEN DUE TO THE NEGLIGENCE OR
OTHER UNLAWFUL ACT OF DRIVER, OWNER OR OWNER’S SERVANT IN
THE EXECUTION OF HIS DUTIES 35
5.5 LIABILITY EXCLUDED IN CERTAIN CASES IN CURRENT LEGISLATION 37
5.5.1 S 19(g): EXCLUDES A CLAIM FOR “SECONDARY” EMOTIONAL SHOCK
SUFFERED BY A PERSON NÓT DIRECTLY INVOLVED IN ACCIDENT 37
5.5.2 EXCEPTIONS TO THIS EXCLUSION: S(21)(2) IT DOES NOT APPLY TO
“PRIMARY EMOTIONAL SHOCK” INJURIES 37
5.5.3 LIABILITY EXCLUDED WHERE WRONGDOER WOULD NOT HAVE
BEEN LIABLE 37
5.5.4 ONLY CERTAIN PERSONS ARE ALLOWED TO ASSIST WITH THE CLAIM 38
5.5.5 MANDATE: AGREEMENT WITH NON-ATTORNEY TO ASSIST WITH THE
CLAIM: LIABILTY EXCLUDED 38
5.5.6 REFUSAL / FAILURE TO SUBMIT TO MEDICAL EXAMINATION 38
5.5.7 NON-DISCLOSURE OF EVIDENCE TO THE RAF 39
5.6 RIGHT OF RECOURSE 39
5.6.1 SECTION 22 39
5.6.2 SECTION 25 39
5.7 COSTS: ONLY AFTER ISSUE AND SERVICE OF PROCESS OF THE RAF 40
5.8 INTEREST / OFFER OF SETTLEMENT SECTION 17(3) OF THE RAF ACT 40
5.9 UNDERTAKINGS FOR PAYMENT OF FUTURE MEDICAL AND HOSPITAL EXPENSES:
SECTION 17(4)(a) AND FOR FUTURE LOSS OF INCOME AND FUTURE LOSS OF
SUPPORT: SECTION 17(4)(b) 41
5.9.1 UNDERTAKINGS FOR PAYMENT OF FUTURE MEDICAL AND HOSPITAL
EXPENSES SECTION 17(4)(a) 41
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5.9.2 SECTION 17(4)(b) UNDERTAKING: 42
5.9.3 INTERIM PAYMENT 45
5.10
PROCEDURE TO LODGE A CLAIM 46
COMPENSATION 46
5.10.2 SECTION 24(5) 48
5.10.3 SECTION 24(6) - NO SUMMONS BEFORE 120 DAYS HAVE LAPSED 48
6. PRESCRIPTION OF CLAIMS 48
6.1 INTRODUCTION 48
6.2 CLAIMS AGAINST RAF 49
6.2.1 SECTION 23 OF THE RAF ACT 49
6.2.2 SECTION 23 - THREE YEARS TO LODGE 49
6.2.3 SECTION 23(2) - PRESCRIPTION DOES NOT RUN AGAINST 50
6.2.4 SECTION 23(3) - FIVE YEARS TO SERVE SUMMONS 51
6.3 DEPENDANTS’ CLAIMS 52
6.4 PRESCRIPTION MUST BE PLEADED 52
6.5 NO EXTENSION OR CONDONATION OF PRESCRIPTION IS POSSIBLE 52
6.6 PRESCRIPTION: OTHER FORMS OF PERSONAL INJURY 52
6.6.1 CLAIMS AGAINST PRIVATE INDIVIDUALS, PRIVATE COMPANIES AND ALL
OTHER NON-STATE OR NON- QUASI-STATE INSTITUTIONS 52
6.6.2 CLAIM AGAINST ATTORNEY FOR UNDER-SETTLEMENT 53
6.6.3 CLAIMS AGAINST THE STATE OR SEMI-STATE ENTITIES 53
6.7 THE FINALITY OF ABANDONMENT OF PART OF THE CLAIM 54
6.8 IMPACT OF CURRENT LEGISLATION - SERIOUS INJURY AND AMA GUIDES /
“MAXIMUM MEDICAL IMPROVEMENT (MMI)” 54
6.9 WHEN TO SUBMIT THE RAF 4: Van Zyl v Road Accident Fund (34299/2009)
[2012] ZAGPJHC 118 (11 June 2012) 55
7. HIT-AND-RUN CLAIMS – THE REGULATIONS 55
7.1 INTRODUCTION 55
7.2 PRESCRIPTION 56
7.3 QUESTIONING / SWORN STATEMENT 57
7.4 IDENTIFIED CLAIM BECOMES A HIT-AND- RUN CLAIM 57
7.5 HIT-AND-RUN CLAIMS BECOME AN IDENTIFIED CLAIM 58
7.6 LODGEMENT OF THE RAF4 “SERIOUS INJURY ASSESSMENT REPORT” FORM 58
7.7 HIT-AND-RUN CHECKLIST 59
8. LOCUS STANDI 59
8.1 INTRODUCTION 59
8.2 COMMON LAW 59
8.3 LEGISLATION 59
8.3.1 MARRIAGE IN COMMUNITY OF PROPERTY 59
8.3.2 WOMAN MARRIED OUT OF COMMUNITY OF PROPERTY 60
8.3.3 THE BLACK WOMAN 61
8.3.4 RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998 62
8.3.5 MINORS 62
8.3.6 IS A CLAIM INVALID FOR LACK OF LOCUS STANDI? 64
8.3.7 HOW TO PROVE A CUSTOMARY UNION 64
8.3.8 MOTHER’S LOCUS STANDI OF CHILD BORN OUT OF WEDLOCK WITH NO
BIRTH CERTIFICATE 64
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8.3.9 A FOSTER PARENT’S LOCUS STANDI 64

8.3.10 LOCUS STANDI OF A DIVORCED WOMAN WITH A MAINTENANCE ORDER 65
8.3.11 LOCUS STANDI OF A PARTNER IN A GAY OR LESBIAN RELATIONSHIP 65
8.3.12 DOES A SURVIVING SPOUSE’S LOSS OF SUPPORT CLAIM TERMINATE
UPON REMARRIAGE? 65
8.3.13 LOSS OF SUPPORT CLAIMS EXTENDS BEYOND CIVIL MARRIAGES 66
8.4 THE INSOLVENT 66
8.5 THE EXECUTOR 66
8.6 MENTALLY DISTURBED PERSONS 66
8.7 DIPLOMATS 67
8.8 JUDGES 67
9. THE APPORTIONMENT OF DAMAGES ACT 34 OF 1956 67
9.1 THE MAIN FEATURES OF THE ACT 67
9.2 HIGH COURT 69
9.3 MAGISTRATES’ COURT 70
9.4 APPORTIONMENT OF DAMAGES WHERE MORE THAN ONE PERSON IS LIABLE 70
9.5 WHAT OPTIONS DOES THE RAF HAVE IF THE INJURED PERSON OR THE
DECEASED OR ANOTHER PARTY IS PARTLY TO BLAME FOR THE DAMAGES? 70
9.6 WHAT ABOUT OTHER “TYPES” OF JOINT WRONGDOERS? CAN THEY BE JOINED
BY THE RAF? 72
9.7 CONDITIONAL COUNTERCLAIM UNDER THE CURRENT LEGISLATION 74
10. ASSESSMENT OF DAMAGES 75
10.1 KEEP IN MIND: 75
10.2 CLASSIFICATION OF SPECIAL AND GENERAL DAMAGES 75
10.3 GENERAL DAMAGES (NON-PECUNIARY LOSS) 75
10.4 CONSIDER THE FOLLOWING FACTORS IN ESTABLISHING A PATTERN: 76
10.5 SPECIAL DAMAGES 77
10.5.1 PAST HOSPITAL EXPENSES 77
10.5.2 PAST MEDICAL EXPENSES 77
10.5.3 FUTURE HOSPITAL AND MEDICAL EXPENSES 77
10.5.4 UNDERTAKING TO PAY FUTURE HOSPITAL AND MEDICAL EXPENSES 78
10.5.5 PAST LOSS OF EARNINGS 78
10.5.6 FUTURE LOSS OF EARNINGS 78
10.5.7 INCIDENTAL EXPENSES 78
10.5.8 LOSS OF FUTURE EARNINGS AND LOSS OF SUPPORT 79
10.5.9 LOSS OF SUPPORT 80
10.5.10 COMPENSATION COMMISSIONER (“CC”) 81
10.6 PRACTICAL APPLICATION 83
11. LIMITATIONS AND CAPS ON DAMAGES UNDER THE CURRENT LEGISLATION 83
11.1 GENERAL DAMAGES / NON PECUNIARY LOSS: only for “SERIOUS INJURY” 83
11.2 LOSS OF EARNINGS / SUPPORT 85
12. REGULATION 3: HOW TO CLAIM FOR NON-PECUNIARY LOSS (GENERAL DAMAGES) 86
12.1 THE “SERIOUS INJURY ASSESSMENT” PROCEDURE AND REPORT – RAF4 86
12.1.1 THE INJURED PERSON MUST FIRST UNDERGO THE AMA SERIOUS INJURY
ASSESSMENT. 86
12.1.2 IF THE AMA SERIOUS INJURY ASSESSMENT RENDERS LESS THAN
30% WPI, USE THE NARRATIVE TEST. 87
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12.1.3 SUMMARY: RAF v Duma & 3 related cases (202/12) [2012] ZACSA 169;
[2013] 1 All SA 543 (SCA). 87
13. COURT’S APPROACH TO REVIEW OF APPEALS TRIBUNAL DECISION 88
13.1 HOW DOES A COURT APPROACH AN APPLICATION FOR REVIEW OF THE APPEAL
TRIBUNAL’S DECISION? 88
13.2 BEFORE AN APPLICATION FOR REVIEW, APPLICANT IS ENTITLED TO RELEVANT
DOCUMENTATION FROM RESPONDENT 90
13.3 THE RAF DESTROYS THE NOTES TAKEN DURING THE APPEAL TRIBUNAL’S
SITTING 90
13.4 SEPARATE TRIALS ON DIFFERENT QUANTUM ASPECTS CAN TAKE PLACE 91
13.5 RAF MAY REJECT AND DISPUTE OWN EXPERT’S “SERIOUS INJURY”
ASSESSMENT 93
13.6 3 DIAGRAMS: 93
13.7 WHAT IS THE DUTY OF THE ATTORNEY RELATING TO SUCH A SERIOUS INJURY
ASSESSMENT AND MEDICO-LEGAL REPORTS? 97
13.8 SOME ADVICE ON A PRACTICAL APPROACH TO A POSSIBLE SERIOUS INJURY
CLAIM 99
14. COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT 130
OF 1993 (“COIDA”) 100
14.1 SECTION 35 COIDA 100
14.2 WHO IS AN EMPLOYER? 100
14.3 APPORTIONMENT WHEN THERE IS A COIDA CLAIM AS WELL 102
14.4 EXAMPLE 102
15. BASIC ACTUARIAL PRINCIPLES 103
15.1 DISCOUNTING / CAPITALIZATION FOR INFLATION 103
15.2 HAZARDS AND CONTINGENCIES 103
15.3 TAXATION 104
15.4 RE-MARRIAGE PROSPECTS 104
15.5 MORTALITY104
15.6 PAST LOSS OF EARNINGS / EARNING CAPACITY 104
15.7 FUTURE LOSS OF EARNINGS / EARNING CAPACITY 104
15.8 LOSS OF SUPPORT 105
15.9 LOSS OF SUPPORT CLAIMS - APPLY THE FOLLOWING: 106
15.10 LOSS OF SUPPORT CLAIMS - BY PARENTS 107
16. PREPARING, HANDLING AND FINALISING CLAIMS 107
16A AN OVERVIEW 107
16.1 “FIRST” CONSULTATION (THE TAKING OF INSTRUCTIONS) 108
16.1.1 PRELIMINARY ENQUIRIES (DO I TAKE ON THE MATTER?) 108
16.1.2 THE CLIENT 108
16.1.3 MERITS (FAULT) 109
16.1.4 INFORMATION REQUIRED 110
16.2 STEPS TO BE TAKEN AFTER INITIAL CONSULTATION 111
16.3 INFORMATION TO BE GATHERED 114
16.4 “SECOND CONSULTATION” 114
16.4.1 MERITS 114
16.4.2 QUANTUM 115
16.4.3 WHICH EXPERTS TO USE? 115
16.4.4 SKETCH: A WHOLE SKELETON 117
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16.5 FINALISATION OF CLAIM FORM AND “THIRD” CONSULTATION 118

16.6 CPI FACTORS TO UPGRADE HISTORICAL AWARDS FOR GENERAL DAMAGES TO
2016 MONETARY VALUES 119
16.7 LODGING THE CLAIM 120
16.8 SETTLEMENT NEGOTIATIONS 120
16.9 EXAMPLE OF THE SPECIAL POWER OF ATTORNEY: 121
16.10 DRAFTING PLEADINGS IN MVA MATTERS 122
16.10.1 JURISDICTION 122
16.11 EXAMPLES OF PLEADINGS 122
16.11.1 SET OF FACTS: 122
16.11.2 ANSWER TO SET OF FACTS IN 15.1: TWO PLAINTIFFS FATHER AND
HIS MAJOR DAUGHTER WHO IS STILL DEPENDENT 124
16.11.3 DEPENDANTS’ CLAIMS: WIFE AND SON OF THE DECEASED 129
16.11.4 ANNEXURE MAGISTRATES’ COURT 131
Two plaintiffs – no serious injury – no non-pecuniary loss
(general damages)
16.11.5 EXAMPLE: PARTICULARS OF CLAIM MAGISTRATES’ COURT – MINOR
INJURED 132
(Narrative test serious injury assessment done after AMA Guides
assessment did not render 30% or more WPI)
16.11.6 HIGH COURT PARTICULARS OF CLAIM 134
Injuries on list of non-serious injuries: “complications” in order to qualify
for non- pecuniary loss.
16.11.7 DEFENDANT’S PLEA Contributory negligence i.t.o. the Apportionment of
Damages Act135
16.11.8 DEFENDANT’S PLEA ON MERITS 137
16.11.9 SPECIAL PLEA: Jurisdiction & Conditional Counterclaim: minor
between age 7 – 14 refutably doli incapax - and parent left minor
unsupervised.137
16.12 SPECIAL PLEAS IN THE ALTERNATIVE: Prescription; and non-compliance with
section 24(6) of the current act (premature service of summons) 140
16.13 SPECIAL PLEAS IN THE ALTERNATIVE: Non-compliance with regulation 3
relating to the serious injury assessment report of the current regulations:
4 possible alternative defects in compliance pleaded 141
16.14 DISCOVERY AFFIDAVIT WITH SCHEDULES “A” AND “B” 145
17. FORMS UNDER THE RAF REGULATIONS, 2008, DISCUSSED 147
17.1 THIRD PARTY CLAIM FORM - RAF 1 147
17.2 ACCIDENT REPORT FORM - RAF 3 147
17.3 SERIOUS INJURY ASSESSMENT REPORT FORM - RAF 4 147
17.4 HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA: GUIDELINE ON THE
NARRATIVE TEST 148
17.5 EXPERT EVIDENCE: THE CERTIFICATION PROCESS FOR TRIAL READINESS IN
CERTAIN HIGH COURTS – APPLICABLE TO ALL PERSONAL INJURY CLAIMS 148
17.5.1 INTRODUCTION 148
17.5.2 THE HIGH COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION: 149
CASE MANAGEMENT DIRECTIVE EFFECTIVE FROM FIRST TERMS OF 2015
(AMENDED UP TO AUGUST 2015: EFFECTIVE FOR ENROLMENTS FOR
CERTIFICATION FROM 7 SEPTEMBER: TRIALS SET DOWN FROM 5 OCTOBER
2015)
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17.5.3 THE CASE MANAGEMENT PROCESS CAN BE SUMMARIZED AS FOLLOWS: 149
17.5.4 AT THE ISSUING OF THE SUMMONS: 149
17.5.5 AT THE APPLICATION FOR A TRIAL DATE: 149
17.5.6 APPLICATION FOR CERTIFICATION CONFERENCE: 149
17.5.7 REQUIREMENTS WHEN MAKING APPLICATION FOR THE
CERTIFICATION CONFERENCE: (can only be done on Mondays) 149
17.5.8 EXPERT EVIDENCE: 150
17.5.9 ALLOCATION OF CERTIFICATION CONFERENCE: 150
17.5.10 CERTIFICATION CONFERENCE: 150
17.5.11 TRIAL PREPARATION 151
18. FUTURE LEGISLATION: ROAD ACCIDENT BENEFIT SCHEME (“RABS”) 151
18.1 INTRODUCTION TO THE RABS 151
18.2 HIGHLIGHTS OF THE RABS BILL 151
19. ROAD ACCCIDENT INJURY ACTS, REGULATIONS AND FORMS 158
19.1 ROAD ACCIDENT FUND ACT, 1996 (ACT 56 OF 1996) 158
19.2 PROCLAMATION R31 OF 1997: RAF ACT INTO OPERATION ON 1 MAY 1997 173
19.3 FINANCIAL SUPERVISION OF THE ROAD ACCIDENT FUND ACT, 1993
(ACT No. 8 OF 1993) 173
19.4 PROCLAMATION R29 OF 2008: ROAD ACCIDENT FUND AMENDMENT ACT, 2005
(ACT No. 19 OF 2005) INTO OPERATION ON 1 AUGUST 2008 175
19.5 ROAD ACCIDENT FUND REGULATIONS, 2008 INTO OPERATION ON
1 AUGUST 2008, AS AMENDED ON 15 MAY 2013 176
19.6 ROAD ACCIDENT FUND FORMS 184
19.6.1 RAF1 – THIRD PARTY CLAIM FORM 184
19.6.2 RAF 2 – SUPPLIER CLAIM FORM 196
19.6.3 RAF3 - ACCIDENT REPORT FORM 201
19.6.4 RAF4 – SERIOUS INJURY ASSESSMENT REPORT 208
19.6.5 RAF5 – NOTIFICATION OF DISPUTE 212
D. PRACTICE NOTES: PUBLIC LIABILITY 216

20. PUBLIC LIABILITY 216
20.1 TYPES OF PUBLIC LIABILITY 216
20.1.1 CIRCUMSTANCES WHICH MAY LEAD TO A PUBLIC LIABILITY BASED
CLAIM FOR PERSONAL INJURIES 216
20.2 REQUIREMENTS FOR A SUCCESSFUL CLAIM AGAINST THE RESPONSIBLE
PARTY 216
20.2.1 FACTORS THAT MAY INFLUENCE SUCCESSFUL RECOVERY OF DAMAGES 216
20.3 THE COURT’S ATTITUDE TOWARDS PUBLIC LIABILITY 217
20.3.1 MUNICIPALITY CASES (PAVEMENTS AND POTHOLES) 217
(a) Municipalities 217
(b) SANRAL and Provincial authorities 218
20.3.2 CASES: SLIP-AND-FALL 218
20.3.3 ESKOM 220
20.3.4 SCHOOLS 220
(a) Private Schools 220
(b) Public Schools 220
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20.3.5 EXAMPLE PLEADING: NEGLIGENCE AND DUTY OF CARE IN

PARTICULARS OF CLAIM: SANRAL 221
20.3.6 EXAMPLE PARTICULARS OF CLAIM: NEGLIGENCE AND DUTY OF CARE –
COLLAPSED WALL 221
20.4 DISCLAIMERS, INDEMNITIES AND EXEMPTION CLAUSES 224
20.4.1 EXCLUSION CLAUSES: HOSPITALS 224
20.4.2 DISCLAIMER NOTICES: AMUSEMENT PARKS 225
20.4.3 DISCLAIMER NOTICES: SHOPPING MALLS 226
20.4.4 EXCLUSION OF LIABILITY IN A LEASE AGREEMENT (CONTRACT) 227
20.5 CURRENT SITUATION WITH REGARDS TO DISCLAIMERS AND EXCLUSION
CLAUSES 227
20.5.1 MOVING TOWARDS FAIRNESS AND REASONABLENESS IN CONTRACT IN
THE APPLICATION OF DISCLAIMER NOTICES AND EXEMPTION CLAUSES 227
20.5.2 THE IMPACT OF THE CONSUMER PROTECTION ACT 68 OF 2008 228
E. PRACTICE NOTES: PASSENGER RAIL ASSOCIATION OF SOUTH

AFRICA (“PRASA”) 230
21. PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) 230
21.1 INTRODUCTION 230
21.1.1 THE MAIN OBJECTIVES OF PRASA ARE TO: 230
21.1.2 DUTIES OF PRASA TO THEIR COMMUTER AND OR MEMBERS OF
THE PUBLIC 230
21.2 PRESCRIPTION 231
21.3 CLAIMS AGAINST PRASA 231
21.3.1 OPEN DOORS WHILE THE TRAIN IS IN MOTION 231
21.3.2 OVERCROWDING OF PASSENGERS ON THE TRAIN 233
21.3.3 GAP BETWEEN THE PLATFORM AND THE TRAIN 233
21.4 DEFENCES TO BE RAISED BY PRASA 233
21.4.1 VOLENTI NON FIT INURIA (CONSENT AND ASSUMPTION OF RISK) 233
21.4.2 REQUIREMENTS 234
21.4.3 DISCLAIMER NOTICES 235
21.5 EXAMPLE: PARTICULARS OF CLAIM AGAINST PRASA 235
F. PRACTICE NOTES: UNLAWFUL ASSAULT AND ARREST 238

22. ASSAULT AND/OR ARREST AS BASIS FOR A CLAIM FOR DAMAGES 238
22.1 DEFINITION 238
22.2 THE CAUSE OF ACTION 238
22.2.1 ASSAULT 238
22.2.2 ARREST 238
22.3 WRONGFULNESS 239
22.3.1 ASSAULT 239
22.3.2 ARREST 239
22.4 WHO MAY BE HELD RESPONSIBLE? 239
22.4.1 THE WRONGDOER 239
22.4.2 OTHER PERSONS / ENTITIES VICARIOUSLY LIABLE 240
22.5 PRESCRIPTION 241
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22.5.1 IF THE DEFENDANT IS AN INDIVIDUAL 241
22.5.2 IF THE DEFENDANT IS AN ORGAN OF STATE 241
22.5.3 IF THE DEFENDANT IS A MEMBER OF THE SAPS 242
22.5.4 IF THE DEFENDANT IS A MEMBER OF A METRO POLICE DEPARTMENT 243
22.5.5 IF THE DEFENDANT IS AN EMPLOYEE OF A NON-STATE ENTITY 243
22.6 DEFENCES 243
22.6.1 JUSTIFICATION 243
22.6.2 SELF-DEFENCE 243
22.6.3 NECESSITY 244
22.6.4 JUSTIFICATION: LAWFUL ARREST OR PREVENTING ESCAPE 244
22.6.5 CONSENT 244
22.6.6 PROVOCATION IS NOT A DEFENCE FOR ASSAULT: AUTOMATISM MAY
BE A DEFENCE 245
22.7 DAMAGES 245
22.8 PRECEDENTS 246
22.8.1 CLAIM FOR DAMAGES: ASSAULT 246
22.8.2 CLAIM: ASSAULT BY SAPS MEMBERS 246
22.8.3 CLAIM: OMMISSION BY MEMBERS OF THE SAPS 247
22.8.4 PARTICULARS OF CLAIM: ARREST AND ASSAULT BY MEMBERS
OF THE JMPD 247
22.8.5 NOTICE IN TERMS OF S 3(1)(a) OF INSTITUTION OF LEGAL PROCEEDINGS
AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002: ARREST AND
ASSAULT BY A MEMBER OF THE JMPD 249
G. PRACTICE NOTES: ANIMALS 251

23. ACTIO DE PAUPERIE OR ACTIO LEGIS AQUILIA 251
23.1 THE CAUSE OF ACTION: A DOMESTICATED ANIMAL CAUSES DAMAGES 251
23.2 REQUIREMENTS 251
23.2.1 OWNERSHIP 251
23.2.2 DOMESTICATION 251
23.2.3 IT ACTED AGAINST THE NATURE OF A DOMESTICATED ANIMAL 251
23.3 THE ACTIO DE PAUPERIE AND NEGLIGENCE: ALTERNATIVE PLEAS 251
23.4 DAMAGES 252
23.5 DEFENCES 253
23.5.1 KNOWLEDGE THAT THE ANIMAL WILL ACT AGGRESSIVELY 253
23.5.2 PROVOCATION OF THE ANIMAL 253
23.5.3 KNOWLEDGE THAT THE ANIMAL WAS PROVOKED 253
23.5.4 UNLAWFUL PRESENCE ON THE PREMISES 253
23.5.5 VOLENTI NON FIT INIURIA 253
23.5.6 INDEMNITY 254
23.6 PRECEDENTS 254
23.6.1 CLAIM: BASED ON THE ACTIO DE PAUPERIE, ALTERNATIVELY ON THE
ACTIO LEGIS AQUILIAE 254
23.6.2 PLEA: TO AN ACTIO DE PAUPERIE BASED ON TRESPASS BY PLAINTIFF 256
23.6.3 PLEA: TO AN ACTIO DE PAUPERIE BASED ON VOLENTI NON FIT INIURIA,
ALTERNATIVELY NEGLIGENCE 256
©LSSA
H. PRACTICE NOTES: PROFESSIONAL NEGLIGENCE 257

24. PROFESSIONAL NEGLIGENCE: THE ATTORNEYS PROFESSION 257
24.1 WHAT IS PROFESSIONAL NEGLIGENCE 257
24.2 LIABILITY ARISES OUT OF CONTRACT 257
24.3 IN WHAT CIRCUMSTANCES COULD PROFESSIONAL NEGLIGENCE ARISE? 257
24.3.1 SOME EXAMPLES (THIS IS NOT A CLOSED LIST): 257
24.3.2 CLIENT’S CLAIM PRESCRIBED: ATTORNEY BREACHED DUTY OF CARE 258
24.3.3 PLAINTIFF BEARS THE ONUS 258
24.3.4 ATTORNEY CANNOT RELY ON CLIENT TO GATHER NECESSARY
INFORMATION 258
24.3.5 CLAIM AGAINST ATTORNEY FOR UNDER-SETTLEMENT
24.4 ATTORNEY’S ETHICAL DUTIES 259
24.4.1 THE “RULES FOR THE ATTORNEYS PROFESSION” THAT CAME INTO
OPERATION FOR ALL LAW SOCIETIES ON 1 MARCH 2016, IN RULES 39
AND 40 THEREOF REQUIRE THE FOLLOWING FROM ATTORNEYS: 259
24.4.2 THE ROLE OF THE ATTORNEYS FIDELITY FUND 260
24.4.3 THE ATTORNEYS INSURANCE INDEMNITY FUND NPC (AIIF) 260
I. PRACTICE NOTES: CONTINGENCY FEES AGREEMENTS 262

25. CONTINGENCY FEES AGREEMENTS 262
25.1 THE BACKGROUND TO CONTINGENCY FEES 262
25.2 FORMALITIES THAT MUST BE COMPLIED WITH 262
25.3 FORMALITIES THAT HAVE TO BE COMPLIED WITH ON SETTLEMENT OF THE
PROCEEDINGS 263
25.4 CASE LAW: THE COMMON LAW CONTINGENCY FEES AGREEMENT IS ILLEGAL 263
25.5 THE PRESCRIBED CONTINGENCY FEES AGREEMENT 263
J. REFERENCE SOURCES 270
©LSSA
A. AIM OF THE COURSE

Candidate attorneys should have a sound understanding of the law relating to personal injury claims
in general.
The emphasis prior to 2016 was on motor vehicle accidents and more particularly the Road Acci-
dent Fund Act post 1 August 2008, but the course have now been reviewed by a panel of experts from
practice. The 2017 manual therefore is the first to include most aspects relating to the institution,
prosecution and defence of all types of Personal Injury Claims.
We have excluded medical negligence claims from this manual as there is a separate online module
on Introduction to Medical Law (IML).
The following aspects are covered:

C. Practice notes: Road Accident Fund claims
D. Public Liability
E. Passenger Rail Association of South Africa (PRASA)
F. Unlawful Assault and Arrest
G. Animals
We have also included chapters on:

H. Professional Negligence; and
I. Contingency Fees Agreements.
Due to the unique nature of Personal Injury Claims as claims sounding in money, there are specific
challenges in that field of practice. This relates to the specific expert knowledge required from the
attorney, as well as the lack of funding that is generally experienced during the course of this kind
of litigation.
As such it is often not possible for a client to furnish deposits to finance the experts needed to be
successful. The client would often look at the attorney for help, and the only way of providing such
assistance would be accept the instruction on a contingency basis.
This is fraught with pitfalls and has resulted in some highly publicized reported cases being
reported in recent times where the law on contingency fees had been transgressed by attorneys, either
willfully or due to a lack of knowledge of the law. Used correctly, a contingency fees agreement can be
of great assistance to any client who cannot afford litigation or to those who want reassurance that
the attorney actually really believe in the possibility of success in the case, to such an extent that he
is willing to place his fee at risk.
Please note: The original RAF Act before the amendments of 1 August 2008 is summarised in a sepa-
rate chapter but only insofar as it may be helpful to the reader to understand unresolved issues, such
as the declaration of unconstitutionality of some of the sections of the original act and the current
consequences thereof, for instance in the Da Silva case.
Since 8 years have elapsed since the amendments became operational, most claims that arose
before the advent of the current system, have been finalised and those remaining are currently in
court.
The emphasis in this 2017 manual is on the requirements of the current Road Accident Fund Act as
amended on 1 August 2008 and the current Regulations as amended on 15 May 2013.
At the back there is a short chapter where reference is made to the envisaged Road Accident Benefit
Scheme Bill, (“RABS”) and its draft Regulations and Rules, relating to which public participation is
currently still taking place.
Unlike the previous manuals no comparison is being made between the act in its original form and
the act after the amendments of 1 August 2008. Should one be confronted with an issue that stems
from the original act, it would be wise to consult the original act and regulations and the case law
pertaining to them.
©LSSA 1
B. LEARNING OUTCOMES
The purpose of the course is to provide a broad overview of the subject at a practical level and to
familiarise students with the essential elements. During training, instructors will emphasise those
aspects which are likely to be encountered frequently in practice. The remainder of the course is self-
study. The purpose of the notes is to supplement the presentation of the instructors and, hopefully, to
be of use in practice. These notes do not form a complete manual on the subject - the use of relevant
sources is still necessary.
After completing this practice manual, the learner should be able to:
ROAD ACCIDENT FUND CLAIMS
With regards to the Act before the amendments of 1 August 2008 (“the preceding
legislation”):
• Note that the act before the amendments had different categories of claimants, and
that passengers’ claims were sometimes limited i.t.o. section 18(1)(a).
• Note the impact of the judgement of Da Silva v Road Accident Fund and Another
[2014] ZACC 21 on claims limited in terms of the preceding act.
• With regards to the Act after the amendments of 1 August 2008 (“the current legisla-
tion”):
• Briefly describe the most important aspects of the RAF legislation after the Amend-
ments of 1 August 2008, and the common law with regard in particular to the law of
delict and insurance.
• Know the dates on which the RAF Act and the RAF Amendment Act came into effect.
• Appreciate the legal origin/mix of this area of practice.
• Explain the requirements, theories of law, exclusions, damages and other principles
of law with reference in particular to the liability of the RAF.
• With reference to the concept “negligence”, indicate under which circumstances the
RAF will be liable to pay compensation.
• Explain and understand the RAF, being created by Statute, as the substitute for the
common law wrongdoer as far as the RAF Act applies.
• Explain and understand the RAF’s liability in claims for “primary emotional shock” and
the exclusion of liability in claims for “secondary emotional shock”.
• Understand the essential elements to successfully prosecute a claim for damages
under the RAF legislation after the Amendment Act.
• Distinguish between the concepts “special” and “general” damages.
• Appreciate the significance of the effect on claims for general damages where the
injuries are “minor” or “serious”.
• Explain the limitations of the amounts payable by the RAF in certain types of claims
in respect of claims arising after the RAF Amendment Act.
• With reference to High Court Rule 34A, explain the criteria to be proven to force the
RAF to make an advance payment to a claimant.
• Explain which procedure should be followed where a person was injured in a motor
vehicle collision whilst on duty and explain the position of the Compensation Commis-
sioner.
• List the situations in which the RAF’s liability is entirely excluded.
• List the circumstances under which the RAF will have a right of recourse, as well as
against whom this right may be exercised.
• Discuss the concept “prescription” with regard to motor vehicle accident claims where
the identity of the owner or the driver thereof has been established distinguishing
between the normal situation and:
©LSSA 2
• a minor;
• a patient/person detained under Mental Health legislation;
• a person under curatorship;
• a person who is “non compos mentis” (not of sound mind or insane).
• Discuss the concept “prescription” with regard to motor vehicle accident claims where
the identity of neither the owner nor the driver thereof has been established.
• Explain what the meaning of Sections 23 and 24(6) respectively entail for purposes of
calculating the date/time of serving Summons, so as to avoid the premature issuing
of Summons.
• Realise the serious consequences and finality of prescription.
• Know how Section 17 of the Children’s Act applies to accidents before and after 1 July
2007.
• Explain the difference between lodging a claim and instituting an action.
• Explain the pre-requisites to be complied with in terms of the Regulations current
legislation, with regard to “hit-and-run” (or Regulation claims) accidents and the
consequences of case law.
• Apply the important differences between the provisions relating to prescription in
Regulation claims and “ordinary” claims under Section 23.
• Explain what “locus standi” means.
• Distinguish between the locus standi of married and unmarried persons with refer-
ence to:
• marriages concluded in community of property before or after 1984 respectively;
• marriages out of community of property;
• marriages between black persons before and after 1988 respectively and customary
unions.
• Explain the concept “apportionment of damages”.
• Explain the notion “joint wrongdoer”, with reference to the joinder of parties.
• Indicate which factors should be considered in order to assess a likely award for
general damages.
• Understand and explain the process of assessment for general damages in terms of
the Regulations.
• Explain the differences between the American Medical Association’s disability guide
test procedure and the “Narrative test”.
• Explain how to manage the RAF 4 Form and the procedural and prescription aspects
related thereto.
• Explain the internal review procedure to the Appeal Tribunal should the RAF dispute
or reject a serious injury assessment.
• Appreciate the difference made by the COID Act in particular to claims where the
plaintiff was partially to blame.
• Determine very broadly whether there is a possibility of the claimant meeting the
criteria to recover general damages by establishing a “serious injury”.
• Appreciate the limitations imposed on claims for hospital and medical expenses.
• Take into consideration the stipulated maximum annual income as per Regulation
when determining claims for loss of income or loss of support.
• Understand the very significant impact which this Regulation has on a claim.
• Have regard to the dispute resolution procedure.
• Briefly explain the purpose of COIDA and the extent to which an employee is protected.
• Describe how COIDA is applied.
©LSSA 3
• Explain the rights of an employee against the common law wrongdoers.
• Indicate when the obtaining of an actuarial calculation will be considered.
• Explain the basic principles of awarding damages to the Plaintiff.
• Explain the principles involved in and the importance of discounting/capitalization for
inflation.
• List the considerations to be applied to loss of support claims.
• Distinguish between the following:
• hospital expenses;
• medical expenses;
• past medical expenses;
• future medical expenses;
• loss of income (past and future);
• general damages;
• funeral expenses (which expenses can be recovered under this heading?).
• Must be able to fill in all claim forms and related forms.
• Must be able to draft letters to all the different role players.
• Must be able to draft Particulars of Claims as well as Pleas.
PUBLIC LIABILITY
• The learner should be able to:
• Define public liability.
• List different types of public liability.
• List the circumstances which may lead to a public liability based claim for personal
injuries.
• List and define the requirements for a successful claim against the responsible party.
• List the factors that may influence successful recovery of damages.
• Describe the court’s attitude towards public liability.
• Discuss municipality cases relating to their duty to maintain and repair pavements and
potholes.
• Differentiate between different entities as defendants, i.e. SANRAL, Eskom, provincial
authorities, municipalities, schools and others.
• Discuss the court’s attitude to slip-and-fall and pothole cases.
• Must appreciate negligence and the duty of care as a basis for a defendant’s liability.
• Understand and be able to calculate prescription in all claims.
• Calculate prescription where:
* if the defendant is an individual;
* if the defendant is an organ of state;
• Must be able to draft a Particulars of Claim in a slip-and-fall and a pothole case.
• Must be able to define disclaimers, indemnities and exemption clauses.
• Distinguish between written exclusion clauses, disclaimer notices, exclusion of liability
clauses in contracts.
• Discuss the current situation with regards to disclaimers and exclusion clauses
• Understand the move towards fairness and reasonableness in contract in the applica-
tion of exclusion clauses, disclaimer notices, and exemption clauses
• Understand and discuss possible the impact of the Consumer Protection Act 68 of
2008.
©LSSA 4
PASSENGER RAIL ASSOCIATION OF SOUTH AFRICA (“PRASA”)

• Understand what the main objectives of PRASA are.
• Understand the duties of PRASA to their commuter and or members of the public.
* open doors while the train is in motion;
* overcrowding of passengers on the train
* gap between the platform and the train
• List the defences to be raised by PRASA.
* volenti non fit inuria (consent and assumption of risk);
* list the requirements for volenti non fit inuria;
* disclaimer notices
• Understand and be able to calculate prescription in claims against PRASA.
• Draft a Particulars of claim against PRASA.
UNLAWFUL ASSAULT AND ARREST

• Describe assault and/or arrest as basis for a claim for damages.
• Give the definition of assault.
• Set out the causes of action for:
* assault
* arrest
• Discuss the element of wrongfulness in unlawful assault and arrest.
• Discuss the difference between a Commission and an omission relating to negligence.
• Identify who may be held responsible as liable: the wrongdoer and any other persons/
entities vicariously liable.
• Describe the requirement of notice to an organ of state.
• Calculate prescription where:
* if the defendant is an individual;
* if the defendant is an organ of state;
* if the defendant is a member of the SAPS;
* if the defendant is a member of a Metro Police Department
* if the defendant is an employee of a non-state entity.
• List and define the requirements for possible defences:
* justification
* self-defence
* necessity
* justification: lawful arrest or preventing escape
* consent
• Understand that provocation is not a defence for assault: automatism may be a
defence.
• Understand and explain contumelia.
• Calculate damages.
• Draft a Particulars of Claim for damages in an arrest and assault claim.
• Draft a notice in terms of s 3(1)(a) of Institution of Legal Proceedings against certain
Organs of State Act 40 of 2002 for wrongful arrest and assault.
©LSSA 5
ANIMALS
• Differentiate between the actio de pauperie and the actio legis Aquilia as a remedy
for damages.
• Understand that the cause of action is a domesticated animal that causes damages.
• List and explain the requirements for a successful claim based on the actio de pauperie.
• List and explain the requirements for a successful claim based on the actio legis
Aquilia.
• Understand and explain the different defences against the actio de pauperie and the
actio legis Aquilia.
• Draft a Plea with pleas in the alternative against the actio de pauperie and negligence.
• Understand and calculate damages.
PROFESSIONAL NEGLIGENCE
• Define professional negligence in the attorneys’ profession.
• Understand that liability arises out of contract or mandate.
• List the circumstances when professional negligence could arise.
• Understand the attorney’s duty of care.
• Explain who bears the onus and what must be proven for a successful claim.
• Understand that the attorney cannot rely on client to gather necessary information.
• Understand claims against attorneys for under-settlement.
• List and understand an attorney’s ethical duties.
• Know the rules 39 and 40 of the “Rules for the Attorneys Profession” that came into
operation for all Law Societies on 1 March 2016,
• Understand the role of the Attorneys Fidelity Fund and the limitations of cover.
• Understand the role of the Attorneys Insurance Indemnity Fund NPC (AIIF) and the
limitations of cover.
CONTINGENCY FEES AGREEMENTS

• Understand the common law background to contingency fees and the unlawfulness
and illegality thereof.
• Understand and list the formalities that must be complied with for a valid contingency
fees agreement.
• Understand and list the formalities that have to be complied with on settlement of the
proceedings.
• Must be able to use the prescribed contingency fees agreement and complete it
©LSSA 6
C. PRACTICE NOTES: ROAD ACCIDENT FUND

CLAIMS
1. INTRODUCTION
1. 1 BACKGROUND TO THE current LEGISLATION

The Road Accident Fund Amendment Act 19 of 2005 became operative from 1 August 2008 in accord-
ance with the Road Accident Fund Regulations, 2008. The amendments apply to claims arising out
of motor vehicle accidents occurring on or after 1 August 2008. The amended Road Accident Fund
Act is nevertheless called the “Road Accident Fund Act, 1996 (Act No. 56 of 1996). In this Manual in
order to distinguish the legislation in force for the period 1 May 1997 to 31 July 2008 (“the preceding
legislation”) from the legislation which became effective from 1 August 2008 the Road Accident Fund
Act (as amended) is referred to as (“the current legislation”).
The primary objective of the current legislation is to limit the liability of the RAF in order to ensure
the survival of the system of statutory compensation for the benefit of road accident victims. The
system of compensation was on the brink of collapse and the changes were long overdue. The current
legislation is therefore government’s interim solution, to allow the RAF to remain sustainable while a
more fundamental overhaul of the system was to occur.
The review application challenging the constitutionality of numerous provisions of the current
legislation in the matter between the Law Society of South Africa and 10 others v Minister of Trans-
port and RAF case no. 10654/09 [2010] ZAGPPHC 26; 2010 (11) BCLR 1140 (GNP) (31 March 2010) was
heard in the North Gauteng High Court. Then Acting Judge Fabricius presided over the application.
Judgement was reserved and on 31 March 2010, judgement was handed down. The entire application
was dismissed, save for Regulation 6(1) which was declared unconstitutional.
The Applicants applied for leave to appeal directly to the Constitutional Court, which application
and appeal was heard on 12 August 2010 by the Constitutional Court. Judgement was handed down by
the Constitutional Court on 25 November 2010 and was reported as Law Society of South Africa and
Others v Minister for Transport and Another (CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400 (CC); 2011 (2)
BCLR 150 (CC) (25 November 2010). Not all the sections and regulations which were challenged in the
North Gauteng High Court, were taken on appeal. The table below is a summary of all the sections
and regulations of the current legislation which were challenged. The first column represents all the
sections and regulations of the current legislation which were challenged in the North Gauteng High
Court, and in the last column comments are made on whether the relevant section or regulation were
taken on appeal to the Constitutional Court, and whether the appeal was upheld or dismissed. The
Constitutional Court declared that Regulation 5(1) is inconsistent with the Constitution and invalid.
The Court further ordered that until the Minister for Transport prescribes a new tariff for health
services in terms of section 17(4B)(a) of the Road Accident Fund Act, a third party who has sustained
bodily injury and whom the Road Accident Fund is obliged to compensate as contemplated in sections
17(4)(a), 17(5) and (6) of the Road Accident Fund Act, is entitled to compensation or health services as
if he or she had been injured before the Road Accident Fund Amendment Act, 19 of 2005 came into
operation.
©LSSA 7
Section Explanation Comments
17(1)(b) General damages: only payable for “serious injuries” Not taken on appeal
17(1A)(a) The assessment of a “serious injury” will be done in accordance Not taken on appeal
with the AMA Guides, and must result in a 30% or more WPI
(whole person impairment) before the third party will be entitled to
general damages.
If the WPI is less than 30%, then it can still be assessed as seri-
ous if it:
1. Resulted in a serious long-term impairment or loss of a body
function; or
2. Constitutes permanent serious disfigurement; or
3. Resulted in a severe long-term mental or severe long-term
behavioural disturbance or disorder; or
4. Resulted in the loss of a foetus.
17(4)(c) The annual loss of support/ income will be limited to R160 000.00 Leave to appeal applied for –
per annum. The amount is adjusted quarterly to counter the effect appeal dismissed
of inflation. The amount of the limitation has increased and at the
date of publication of this manual is as follows: (See paragraph
2.12 for all the increases.)
(31/07/2008 -- R 160 000.00 as published in the act)
31/07/2016 to R 248 710.00 in GG 40175
Read: Jonosky v Road Accident Fund (2010/01220) [2013]
ZAGPJHC 149 (14 June 2013): Cap to be applied on date of
accident and then actuarially inflated for each year of the future
loss. This was overruled in RAF v Sweatman (162/2014) [2015]
ZASCA 22 (20 March 2015) where it was ordered that the correct
approach is to determine the present value of the actual loss suf-
fered, as actuarially calculated, taking into account all contingen-
cies, including mortality, and then compare it with the annual loss
(the limit or cap) as determined on the date of the accident.
17(4B)(a) Past and future non-emergency medical expenses will be limited Leave to appeal applied for –
to “the tariffs for health services provided by public health estab- appeal restricted to Regulation 5(1)
lishments contemplated in the National Health Act, 2003 (Act No. – declared unconstitutional
61 of 2003), and shall be prescribed after consultation with the
Minister of Health.”
17(4B)(b) A higher rate is applicable for emergency medical treatment. (The Not taken on appeal
tariff for emergency medical expenses was first published in GN
R. 711 in Government Gazette nr. 31249 on 21 July 2008 and the
latest amendment is found in BN 107 published in Government
Gazette 38803 of 22 May 2015.)
21 A third party is still not allowed to exercise his/her common law Leave to appeal applied for –
right to claim any damages from the owner or the driver of the appeal dismissed
motor vehicle, or against the employer of the driver, except if the
RAF is unable to pay or for secondary emotional shock victims.
3(1)(b), 3(1) Assessment of a serious injury (to qualify for general damages), Not taken on appeal
(b)(ii) including challenges of:
and (iii) The list of non-serious injuries to be published;
The limit of 30% WPI;
Use of the AMA Guides;
Serious Injury report form (RAF4).
3(3)to 3(14) Appeal Tribunal for any disputes arising from the RAF4 Not taken on appeal
5(1) The rate at which non-emergency medical expenses will be paid Leave to appeal applied for –ap-
by the RAF in terms of Section 17(4B)(a) (the “UPFS” rate: Uni- peal upheld
form Patient Fee Schedule (which is public hospital rates by full
paying patients)).
5(2) The rate at which emergency medical expenses will be paid by Not taken on appeal
the RAF in terms of Section 17(4B)(b), and as published in the
Government Gazette on 21 July 2008.
6(1) The claim must be lodged with the RAF branch closest to where Declared unconstitutional
the accident occurred or where the third party resides.
6(2) The RAF will be entitled to require the third party to submit him/ Not taken on appeal
herself to questioning or to furnish a further sworn statement to
the RAF. Summons may not be issued before the third party has
submitted him/herself to the questioning or has made the sworn
statement, or both.
7 The new RAF1 (claim form), RAF2 (suppliers’ claim form), RAF3 Not taken on appeal
(insured driver statement form) and RAF4 (serious injury assess-
ment report form) which form part of the Regulations.
©LSSA 8
1.2 OVERVIEW OF THE CURRENT ACT AND REGULATIONS

The full content of the current act is discussed further on in this manual. This part intends to give
the general outline only relating to what the current act and regulations entail. The law relating to
motor vehicle accident claims is an interesting blend of the law of delict, the law of insurance and
“socio-economic” legislation.
The RAF Act

• Substitutes the RAF for the common law wrongdoer;
• Guarantees payment of compensation to the victim who complies with the requirements of the Act
in question;
• Affords protection for the wrongdoer.
The similarities between ordinary (voluntary) motor vehicle insurance and the RAF Act
(compulsory) include:
• Payment of a “premium” by way of the fuel levy for RAF claims.
• A loss of the protection for the wrongdoer, by allowing a right of recourse, as a result of unlawful
conduct on the part of the wrongdoer such as drunken driving, driving without a licence or failing
to co-operate with the RAF.
However, in insurance claims for motor vehicle damage, the victim sues the wrongdoer and not the
insurer, whereas claims in terms of the RAF Act for bodily injuries involving motor vehicles are
brought against the RAF.
The socio-economic aspects of the legislation afford the victims the assurance of payment when
the requirements of the legislation are fulfilled but because of financial constraints certain claims
against the RAF are limited as to amounts (“capping”) which are recoverable from the RAF. Under the
current legislation the victim’s common law claim against the wrongdoer for the damages suffered
over and above the amounts payable by the RAF had been abolished. After the amendments of
1 August 2008 to the RAF act, the heading of s 21 reads “Abolition of certain common law claims”.
The common law wrongdoer may not be sued for damages as a result of somebody’s personal injury
or death after a road accident. The only exception lies in s 21(2)(b) that still allows claims against the
common law wrongdoer in the case of emotional shock injuries sustained by someone not physically
involved in the road accident.
1.3 THE ORIGIN OF MOTOR VEHICLE ACCIDENT LEGISLATION

The origin of motor vehicle accident legislation can be traced back to the 1939 Motor Vehicle Insur-
ance Bill, which for the first time provided for compulsory insurance of motor vehicles in South Africa.
After certain amendments, this Bill became an Act, namely the Motor Vehicle Insurance Act of 1942
and came into operation on 1 May 1946.
1.4 IMPORTANT TIME PERIODS: WHICH ACT TO APPLY

For accidents which occurred on or before 30 April 1986 - apply the procedural requirements of the
Compulsory Motor Vehicle Insurance Act No 56 of 1972. Owners of motor vehicles were obliged to
purchase third party tokens from insurance companies.
For accidents between 1 May 1986 and 30 April 1989 – apply the procedure in the Motor Vehicle Acci-
dents Act No 84 of 1986; certain of the previous third party insurance companies became appointed
agents.
Apply the provisions of the Multilateral Motor Vehicle Accident’s Fund Act No 93 of 1989 to acci-
dents between 1 May 1989 and 30 April 1997.
For accidents occurring between 1 May 1997 and 31 July 2008 (referred to as the preceding legisla-
tion) apply the Road Accident Fund Act, No 56 of 1996 with the Regulations and the Forms. More than
8 years have already elapsed since the amendments of 1 August 2008, most claims under the preceding
legislation have already been finalized or are in the process of being finalised in court. Only minors’
claims and other claims where prescription did not run in terms of Section 23(2), as well as claims of
insane persons (see RAF v Smith [1998] 4 All SA 423 (A)) may still be “alive” to be instituted.
©LSSA 9
The RAF has “absorbed” the appointed agents. The references in the RAF Act to “agents” can there-
fore be disregarded.
Sections 6 to 13 of the Road Accident Fund Amendment Act 19 of 2005 came into effect when the
Road Accident Fund Act Regulations, 2008 were proclaimed to be operative from 1 August 2008 and
is referred to as the current legislation. Regardless of the date of the accident any claim made after
1 May 1997 is to be brought against the RAF.
1.5 THOUGHTS ON HANDLING MVA CLAIMS

An attorney who handles MVA claims should understand the practical application of the RAF Act, the
relevant law generally, the formulation of the damages which are recoverable and the procedures in
the Magistrates and High Courts.
• Compassion and care for the client demonstrated by competent and transparent efficient commu-
nication with the client is the most important element of good practice management.
• Confirm all instructions and communications in writing.
• There are no short cuts. Investigate the merits and quantum properly or face professional negli-
gence claims.
• Know your rules of prescription.
Build up your general legal knowledge. RAF claims incorporate a vast field of law, including,
inter alia:
• The law of contract, e.g. discharges, undertakings;
• Family law, e.g. locus standi, curators, law of husband and wife, etc;
• The law of delict. This forms the basis of all RAF claims;
• The law of forensic medicine. Medical malpractice claims;
• Criminal law, e.g. drunken driving, reckless and/or negligent driving, etc;
The Act, Rules and practice procedures governing litigation in both the Magistrates’ and High
Court;
• Attorneys’ practice ethics vis a vis their clients (e.g. charging of fees, taking instructions, reporting,
etc.) and opponents (e.g. courtesy, responding to communications, interviewing witnesses, etc.).
Always be friendly. Treat your colleagues with respect. This includes the employees of the RAF. The
majority of them are admitted attorneys or advocates. Do not think that you are better than them.
The plaintiff is entitled to compensation which is fair and equitable. Always have the client’s best
interests at heart.
Advise your clients of the hidden costs of litigation, the uncertainties and delays of litigation and
the effects of an adverse cost order especially when your client starts a case with the service of a
summons. A claim settled without litigation is often more profitable for the client as legal costs are
kept down. It is however important to note that in terms of the current legislation the RAF is not
liable to pay party costs if a claim is settled with the RAF prior to the issuing of summons, due to the
removal of section 17(2) of the preceding legislation.
Learn from your peers and have respect for attorneys who have many years of experience. An
action to recover damages from the RAF is litigation par excellence. Know the court procedures and
how to draft pleadings. It is crucial that you understand the important sections of the RAF Act as
your foundation.
2. the Road Accident Fund Act 1996, Act No. 56 of 1996 before
the amendments of 1 august 2008: A SUMMARY
2.1 INTRODUCTION
This section deals with the Act applicable before 1 August 2008 and summarises the position from 1
May 1997 to 31 July 2008. Some of the provisions of the Act remained the same after the amendments
of 1 August 2008 especially the basis of liability of the RAF. However where amendments were intro-
©LSSA 10
duced they would generally cause quite a serious difference in the compensation that can be claimed
from the RAF.
Students are only required to learn those sections of the original act that continues to remain in
force without amendments. The previous regulations have been repealed and replaced in toto. In order
to understand where the current provisions are similar or different from the previous position, this
summary may be helpful. It is not intended to provide detailed information.
2.2 FORMATION OF THE ROAD ACCIDENT FUND (THE “raf”)

The Road Accident Fund is and remain a juristic person, which acquired the assets, liabilities, rights
and obligations of the Multilateral Motor Vehicle Accidents Fund when the RAF Act came into exist-
ence on 1 May 1997 as established in s 2(1) of the act. (See 3.1 below).This remains the same after the
amendments of 1 August 2008.
2.3 LIABILITY OF THE RAF

The RAF’s liability stems from s 17(1). Its liability extends only to personal injury claims caused by or
arising from the driving of a motor vehicle by any person at any place within the Republic, from the
driving As is the case after the amendments, provision was made for claims where the identity of the
driver or owner has been established as well as for so-called “hit-and-run” claims. Liability was and
remains fault-based.
(See 3.3 for the current position.)
2.4 RAF WAS ONLY SUBSTITUTED FOR THE COMMON LAW WRONGDOER
2.4.1 CLAIM FOR COMPENSATION LIES AGAINST FUND ONLY

Section 21. When a third party is entitled under Section 17 to claim from the Fund . . . any compensa-
tion in respect of any loss or damage resulting from any bodily injury to or death of any person caused
by or arising from the driving of a motor vehicle by the owner thereof or by any other person with the
consent of the owner, that third party may not claim compensation in respect of that loss or damage
from the owner or from the person who so drove the vehicle, or if that person drove the vehicle as an
employee in the performance of his or her duties, from his or her employer unless the Fund . . . is unable
to pay the compensation.
2.4.2 THE OWNER / DRIVER WAS RELIEVED OF COMMON LAW LIABILITY ONLY TO
THE EXTENT OF THE COVER PROVIDED FOR IN THE ACT.
A third party was not entitled to claim damages from an owner or driver, to the extent that the third
party can claim damages in terms of the Act. The owner/driver was relieved of his common law
liability to the extent of the cover provided for in the Act.
The owner/driver could therefore still be sued, under the common law, for any damages exceeding
the damages claimable from the RAF under the Act, if the RAF’s liability was not unlimited.
(Section 18). Under the current legislation this is not possible anymore. Other types of joint wrong-
doers could however always be sued for their negligence as well since they are not drivers or owners
that fall within the ambit of the Act.
See: Rose’s Car Hire (Pty) Ltd v Grant 1948 (2) SA 466 A. This dealt with Section 13 of Act 29 of
1942.
The court there held that Section 13 of of Act 29 of 1942 meant that in so far as an injured persons or
dependants, were able to recover compensation from an insurer, have no right to claim compensation
from the owner or the authorised driver. The court held that the section, properly interpreted, did not
deprive the claimant of the right to recover from the owner or the authorised driver damages in excess
of the amount for which the insurer was made liable under the Act.
©LSSA 11
2.5 SECTION 18(1) LIABILITY OF RAF LIMITED UNDER PRECEDING LEGISLATION
IN RESPECT OF CERTAIN CATEGORIES OF PASSENGERS
IN TERMS OF THE CURRENT LEGISLATION S 18(1) HAS BEEN DELETED AND PASSENGERS
HAVE THE SAME RIGHTS AGAINST THE RAF AS ANY OTHER THIRD PARTY. (ALSO SEE 2.7
BELOW REGARDING MVUMVU v RAF: THE LIMITATIONS IN S 18 OF THE PRECEDING LEGISLA-
TION HAD ALSO BEEN DECLARED UNCONSTITUTIONAL).
NB: Section 18 of the preceding legislation was only applicable to passengers’ claims; AND where no
causal negligence can be attributed to the driver of some other motor vehicle.
DEFINITION OF CONVEY
Ordinary Meaning:
“To be carried for the purpose of transportation.” See Aetna Insurance Co. Ltd v Minister of Justice
1960 (3) SA 273 (A) 288.
Extended meaning as per the Act:

“convey” in relation to the conveyance of a person in or on a motor vehicle, includes:-
a) entering or mounting the motor vehicle concerned for the purpose of being so conveyed; and
b) alighting from the motor vehicle concerned after having been so conveyed.
INTENTION
Intention played a prominent role to decide if a person is being conveyed. It is a factual question to be
decided on its own merits. Daniels in his book “MMF - The Practitioner’s Guide” gives good examples
and case references. In some cases there will be a common intention to convey. In others the purpose
of the driver will be the determining factor and in certain cases it will be the purpose of the person
conveyed. If neither has the purpose, the person carried is not conveyed. The person who is alleging
or claiming that he was conveyed bears the onus of proof.
Mali v Shield Insurance Co. Ltd 1984 (2) SA 798 (SECLD).
See also:
Netherlands v Van der Vyver 1961 (1) SA 412 (A);
AA v Sibothobotho 1991 (4) SA 593 (A);
Moni v Mutual & Federal 1992 (2) SA 600 (T);
Daniels v General Accident 1992 (1) SA 757 (C).
This could also be applicable in the case of a person behind the steering wheel of a motor vehicle
being towed for purposes of apportioning damages. It is a factual question and could have the effect
that a person behind the steering wheel of the vehicle being towed, could in some cases be classified
as a “driver” and in some cases as a “passenger”.
RAF v Mkhize 2005 (3) SA 20 (SCA).
September v Road Accident Fund 2007 (1) SA 159 (SE). The facts in this case are distinguished from
those in RAF v Mkhize above.
Once it was established that a person has been “conveyed”, then one had to decide whether Section
18 is applicable.
2.6 THE SECTION 18(1) THAT HAD BEEN DELETED FROM 1 AUGUST 2008
2.6.1 THE CATEGORIES OF PASSENGERS THAT EXISTED UNDER THE PRECEDING

LEGISLATION
The liability of the Fund or an agent to compensate a third party for loss or damage contemplated
in Section 17 which is the result of any bodily injury to or death of any person who, at the time of
the occurrence which caused that injury or death, was being conveyed in or on the motor vehicle
concerned, shall, in connection with any one occurrence, be limited, excluding the cost of recovering
the said compensation, and except where the person concerned was conveyed in or on a motor vehicle
©LSSA 12
other than a motor vehicle owned by the South African National Defence Force during a period in
which he or she rendered military service or underwent military training in terms of the Defence
Act, 1957 (Act No. 44 of 1957), or another Act of Parliament governing the said Force, but subject to
subsection (2)-
(a) to the sum of R25 000.00 in respect of any bodily injury or death of any one such person who
at the time of the occurrence which caused that injury or death was being conveyed in or on the
motor vehicle concerned:
(i) for reward; or
(ii) in the course of the lawful business of the owner of the motor vehicle; or
(iii) in the case of an employee of the driver or owner of that motor vehicle, in respect of whom
subsection (2) does not apply, in the course of his or her employment; or
(iv) for the purposes of a lift club where that motor vehicle is in a motor vehicle, or (special or
commercial passenger)
(b) in the case of a person who was being conveyed in or on the motor vehicle concerned under
circumstances other than those referred to in paragraph (a), to the sum of R25 000.00 in respect
of loss of income or of support and the costs of accommodation in a hospital or nursing home
treatment, the rendering of a service and the supplying of goods resulting from bodily injury to
or the death of any such person, excluding the payment of compensation in respect of any loss or
damage. (an ordinary or social passenger)”
IMPORTANT
The provision only became applicable where the passenger suffered injuries caused by the sole negli-
gence of the driver of the vehicle upon which the passenger was conveyed or negligence on the part
of any other driver cannot be established. The Section 18(1)(a)(i) – (iv) category passenger could claim
R25 000 from the RAF which could include special and general damages. The passenger retained
the common law right to sue the driver or the driver’s employer if vicariously liable (“owner”) of the
vehicle for damages in excess of R25 000.The Section 18(1)(b) category passenger could claim R25 000
from the RAF which could only include special damages. The passenger retained the common law
right to sue the driver or the driver’s employer if vicariously liable (“owner”) of the vehicle for special
damages in excess of R25 000, and for all general damages.
S 35 COIDA was applicable to the Preceding and is applicable to the Current Legislation: If
an injured is an employee of the driver or owner of that motor vehicle and the third party is enti-
tled to compensation under the C.O.I.D. act Section 35 of COIDA applies. Section 35 of COIDA bars
an employee or his dependant from suing his or her employer. This is a statutory provision, which
negates the employee’s common law right. This meant and still has the effect that because the wrong-
doer – employer may not be held liable, the RAF may take that same special plea and can also not be
held liable. The only recourse that this injured had would have been an “injury on duty” claim against
the Compensation Commissioner i.t.o. COIDA.
The effect of section 35 of COIDA remains in force where an injured is either a passenger or a
pedestrian being injured by his employer.
In the matter of Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) the validity of
Section 35(1) was tested against the Constitution.
The Court a quo held that Section 35(1) was unconstitutional. Such an order of a Court has no validity
unless confirmed by the Constitutional Court.
The Constitutional Court set the order aside because the C.O.I.D. Act:
(a) is based on a no-fault system;
(b) there is guaranteed recovery;
(c) there is no litigation involved.
The Court also found that:

Section 35(1) is logically and rationally connected to the legitimate purpose of the C.O.I.D. Act, viz,
©LSSA 13
a comprehensive regulation of compensation for disablement sustained, or diseases contracted by
employees in the course of their employment and it was therefore not in conflict with the abovemen-
tioned provisions of the constitution.
Section 35(1) reads:

“No action shall lie by an employee or any dependant of an employee for the recovery of damages in
respect of any occupational injury or disease resulting in the disablement or death of such employee
against such employee’s employer, and no liability for compensation on the part of such employer shall
arise save under the provisions of this Act in respect of such disablement or death”.
The abovementioned is important because Section 19 (which will be dealt with hereunder) provides a
total exclusion.
“The fund shall not be obliged to compensate any person in terms of Section 17 for any loss or damage
for which neither the driver nor the owner of the vehicle concerned would have been liable.”
SO! If the plaintiff has no claim in common law then he also has no claim against the RAF.
WHO IS AN EMPLOYER?
It becomes important to identify who is an employer in terms of the COID Act Section 56(1)(b), (c), (d)
and (e) is applicable.
(a) an employee charged by the employer with the management or control of the business or of any
branch or department thereof;
(b) an employee who has the right to engage or discharge employees on behalf of the employer;
(c) an engineer appointed to be in general charge of machinery, or of a person appointed to assist
such engineer in terms of any regulation made under the Minerals Act 1991, or
(d) a person appointed to be in charge of machinery in terms of any regulation made under the Occu-
pational Health and Safety Act 1993.
One must therefore test whether the driver or owner of the motor vehicle is an employer of the employee
as contemplated by the extended definition of employer. A co-employee may be an employer because
of the extended definition.
DID THE EMPLOYEE PASSENGER HAVE A CLAIM WHEN HIS CO-EMPLOYEE DRIVER IS THE
ONLY NEGLIGENT DRIVER?
Yes, but the claim would be limited to R 25 000 (depending on the category of passenger referred to
above and the common law value of the claim it could actually be less), minus the COIDA final award.
Under the current legislation: passenger’s claims are not limited, and therefore such passenger can
claim his damages from the RAF, subject of course to the caps and the provisions regulating non-pe-
cuniary loss. The RAF will however in terms of s 18(2) subtract the amount awarded by the CC from
any damages that the RAF is liable for.
TWO GOLDEN RULES:

1. If there is an apportionment against the plaintiff you “first apportion against the total damages
(i.e. the common law damages) and then deduct the Compensation Commissioner’s final award.”
2. The award under the COID Act is deducted from the total common law damages.
2.6.2 PRECEDING LEGISLATION: PASSENGERS CONVEYED WHILST RENDERING

MILITARY SERVICES OR UNDERGOING MILITARY TRAINING
Generally in terms of Section 18 passengers whose claims were affected by the provisions of the
Section were only entitled to a maximum of R25 000 from the RAF.
There was an exception to this limitation in the Preceding Legislation: Section 18(3)(a)
This applied to members of the Defence Force who were entitled to compensation in terms of the
Defence Force Act. There is no reference to being conveyed in or on a motor vehicle but would include
same. This section also included pedestrians. Whatever compensation was received by the Defence
©LSSA 14
Force member in terms of the Defence Force Acts, fell to be deducted from the amount payable by the
RAF.
Requirements to be met for the passenger to have an unlimited claim even where the driver of
the vehicle in which the claimant was conveyed was the sole cause of the collision:
1. He had to be conveyed in a motor vehicle which is NOT owned by the Defence Force;
2. He had to be undergoing military training or be rendering military service at the time.
In Du Preez v RAF 2002 (4) SA 209 (D) it was held that a permanent force member appointed as a
seaman and stationed at Durban Naval Base rendering temporary military support services falls
within the exception.
2.7 CONSTITUTIONAL CHALLENGE TO LIMITED CLAIMS IN THE PRECEDING

LEGISLATION AND THE ROAD ACCIDENT FUND (TRANSITIONAL
PROVISIONS) ACT, 15 OF 2012
In Mvumvu & two others v Minister of Transport and the RAF 7490/2008 [2010] ZAWCHC 105
(28 June 2010), an application was brought on 1 June 2010 to declare sections 18(1) and 18(2) of the
preceding legislation unconstitutional. The applicants were three passengers who sustained injuries
in separate accidents, and whose claims were limited against the RAF as a result of section 18 of the
preceding legislation. The limit of R25 000 was set in 1986 by Section 9 of the Motor Vehicle Accidents
Act 84 of 1986. No adjustment for rising medical costs of inflation was made since then.
The Respondent’s case was that the limitation of R25 000 were removed in the current legislation, but
the claims of such passengers are now subject to other limitations which have been imposed by the
current litigation. On 28 June 2010 the Western Cape High Court handed down judgement.
Sections 18(1) and (2) as a whole would appear to affect six different categories of passenger
claims, namely:
1. passengers for reward - in terms of s 18(1)(a)(i);
2. passengers conveyed in the course of the lawful business of the owner of that motor vehicle - in
terms of s 18(1)(a)(ii);
3. passengers who were the employees of the driver or owner of the motor vehicle and who were
conveyed in the course of their employment but where there was no claim under COIDA-in terms
of s 18(l)(a)(iii);
4. passengers being conveyed for the purposes of a lift club where the motor vehicle was a motor
car - in terms of s (18)(1)(a)(iv);
5. passengers not falling within ss 18(1)(a) or 18(2), such as social passengers - in terms of s 18(1);
and
6. passengers who were the employees of the driver or owner of the motor vehicle and who had a
claim under COIDA-in terms of s 18(2).
Notwithstanding that the applicants were representative of only three of the six classes of persons
hit by the impugned provisions, an order of invalidity was sought against sections 18(1) and (2) as a
whole. This was opposed by the respondents, who pointed out that there was and is no need for the
applicants to challenge the constitutionality of s 18(1)(a)(ii), (iii) and (iv). The Respondents noted that
the applicants did not have standing to challenge the remaining provisions of the sections given that
they approached the court in their own interests and not on any other basis.
The following order was made:

“(1) It is declared that sections 18(1)(a)(i) and 18(1)(b) of the Road Accident Fund Act 56 of 1996, as
they stood prior to 1 August 2008, were inconsistent with the Constitution and invalid.
(2) It is declared that section 18(2) of the Road Accident Fund Act 56 of 1996, as it stood prior to 1
August 2008, was inconsistent with the Constitution and invalid.
(3) Such declarations of invalidity will apply to and govern all claims instituted or to be instituted
under the Road Accident Fund Act 56 of 1996, which at the date of this order:
(a) have not prescribed; and
©LSSA 15
(b) have not been finally determined by judgements at first instance or on appeal; and
(c) have not been finally determined by settlement duly concluded.
(4) All such claims referred to in para 3 above shall qualify for no greater compensation than that
which would accrue under the provisions of the Road Accident Fund Amendment Act, 19 of 2005,
as it stood on 1 August 2008.
(5) This order is referred to the Constitutional Court for confirmation of the order of constitutional
invalidity.
(6) The respondents are ordered, jointly and severally, to pay the costs of this application, including
the costs of the expert witness Munro.”
An application for leave to appeal was filed at the Constitutional Court and on 17 February 2011
the Constitutional Court confirmed the ruling of the Western Cape High Court in declaring invalid
the so-called “passenger claims” set out in Sections 18(1)(a)(i), 18(1)(b) and 18(2) of the preceding
legislation in Mvumvu v Minister of Transport, Case CCT 67-10 [2011] ZACC 1. The invalidity was
suspended for 18 months from 17 February 2011 to enable Parliament to “cure the defect”.
Although Sections 18(1)(a)(ii), (iii) and (iv) had not been challenged and were not covered by the
declaration of invalidity, the Constitutional Court expressed the view that they suffered from the same
defect as the challenged sections and opined that it would be desirable for Parliament to “address the
plight of those affected by these subsections as well”.
The Constitutional Court ordered further that if the 18 months lapsed without Parliament having
cured the defect, then the order of invalidity would come into force with immediate effect, but would
“not apply to claims in respect of which a final settlement has been reached or a final judge-
ment has been granted before the date of this order”. Therefore the order will not apply retrospec-
tively to any matter that was already settled on 17 February 2011.
On 15 August 2011 the Road Accident Fund Amendment Bill, 2011, was published in the Govern-
ment Gazette for public comments. Interested parties were invited to submit written comments on the
Bill by no later than 20 September 2011.
Parliament addressed this in the Road Accident Fund (Transitional Provisions) Act 15 of 2012 (the
“TP” act), and the Regulations in GG 36142 of 8 February 2013 that came into operation on 13
February 2013. Claimants in the “passenger” categories now had to make an election that must be
done within 1 year from 13 February 2013 – Section 2(1).
If a claimant elected to continue on the “old” act (“old act” is defined as the Road Accident Fund Act
56 of 1996 as it stood before 1 August 2008), with the “limited” claim claimant had to notify the RAF
on an “Election Form”: the RAF TP 1 in terms of Regulation 2. Such claims will remain subject to the
limitations and the RAF Act before the amendments but the common law claim against the wrongdoer
for the rest of the damages remains. They may therefore still sue the wrongdoer for any amount that
the RAF does not cover.
The claim of a claimant that didn’t elect to continue on the “old” act will in terms of s 2(1) be
subject to the “new” (amended) act (“new act” is defined as the Road Accident Fund Act 56 of 1996 as
it stood from 1 August 2008 onwards). Such a claimant had to submit a “disclosure form”, the RAF
TP 2 in terms of Regulation 3.
If the “new” act is made applicable to the claim the claimant will still only get R 25 000 “non-pe-
cuniary loss” if the claimant can prove that he suffered general damages up to that amount. This may
be claimed without submitting the RAF 4 “Serious Injury Report” to prove a “serious injury”.
If the claimant wanted to claim general damages of more than R25 000, a serious injury assess-
ment report (RAF 4) had to be submitted within 2 years from 13 February 2013 - s 2(1)(b)(i).
In terms of s 2(1)(g) a claimant whose claim become subject to the “new” act may not sue owner or
driver or driver’s employer under the TP Act.
If the passenger opted for the “unlimited” claim against the RAF the TP1 written notification thereof
had to be made either to the RAF within one year after the date of the TP Act coming into effect on
13 February 2013.
The written notification had to be accompanied by:

(a) The claims documents required under the Amendment Act (in other words all the new forms etc.);
and
(b) Detail of reduction amounts:
©LSSA 16
(i) All amounts that might have already been recovered from the owner or driver under the
common law.
(ii) All interim payments which the Fund might already have made.
(iii) All supplier claims in terms of Section 17(5).
(iv) Any compensation payable in terms of the Compensation for Occupational Injuries and
Diseases Act, 130 of 1993.
What happens if a claim under the preceding act has not become prescribed, is only submitted to the
RAF now and therefore no election was ever made and no disclosure form was submitted to the RAF
either?
This possibility is not dealt with by the TP Act. The claim of a claimant that didn’t elect to continue
on the “old” act will in terms of s 2(1) be subject to the “new” (amended) act (“new act” is defined as
the Road Accident Fund Act 56 of 1996 as it stood from 1 August 2008 onwards). Such a claimant
had to submit a “disclosure form”, the RAF TP 2 in terms of Regulation 3. However, if the claim had
not even been submitted to the RAF yet, and it also had not become prescribed in the meantime, it is
clear that such a claimant did not have the opportunity to make an election to have his/her claim be
finalised under the old act. It is submitted that it would be irregular to deprive such a claimant of the
choice to make the election, regardless of the fact that the time period to make such an election had
in fact expired.
See da Silva v Road Accident Fund and another 2014 (5) SA 573 (CC) below, where section 19(b)(ii)
was also declared unconstitutional even after being deleted by the amendments of 1 August 2008 and
the TP Act made applicable to it by the court.
2.8 ESSENTIAL COMPONENTS IN THE PRECEDING LEGISLATION
2.8.1 LIABILITY OF THE RAF IS AND REMAIN FAULT BASED

Section 17(1)
The third party must prove negligence or another unlawful act on the part of an owner of a motor
vehicle or another driver or the employee of an owner of a motor vehicle to be successful with a claim.
2.8.2 ONLY FOR BODILY INJURIES OR DEATH, AND BODILY INJURY INCLUDES
MENTAL INJURY
The plaintiff must have suffered a physical injury or a financial loss as a result of an injury to a
dependant or death of a breadwinner.
• The plaintiff cannot claim for broken spectacles or false teeth, or luggage in the motor vehicle
(damage to property also known as a material damages claim).
• Naturally, if he broke his own teeth in the accident, then the Fund would be liable for the cost of
dentures in the future.
2.8.3 MUST HAVE BEEN CAUSED BY OR ARISING OUT OF THE DRIVING OF A MOTOR
VEHICLE
Motor vehicle
A “motor vehicle” was essentially defined in section 1 and further amplified through case law. There
must be a factual enquiry taking the case law into consideration.
Driving
“Driving” was not defined in the act, but case law clarified each specific possible scenario. Essentially
the ordinary meaning of driving a motor vehicle means the urging and directing of the course of the
vehicle while it is in motion and will by necessity include all other acts reasonably or necessarily
associated therewith, e.g. braking, hooting, etc. The ordinary meaning is extended by the presump-
tions in s 20(1), (2) and (3) of the RAF Act and has never been amended.
Injury or death must have been due to the negligence or other unlawful act of the driver, owner or
owner’s servant in the execution of his duties
©LSSA 17
Fault or blame has to be proven on the part of the driver or owner or owner’s servant, and this
was based on the reasonable man test and foreseeability. This has been continued with after the
amendments. An unlawful (or wrongful) act is an act or omission, other than the actual act of driving,
involving the persons mentioned in Section 17.
2.9 LIABILITY WAS EXCLUDED IN CERTAIN CASES SECTION 19 PRECEDING

LEGISLATION
S 19 of the preceding legislation excluded the liability of the RAF totally in certain circumstances. It
has been amended in some respects but some exclusions were retained.
2.9.1 LIABILITY SECTION 19(A) “FOR WHICH NEITHER THE DRIVER NOR THE
OWNER OF THE VEHICLE CONCERNED WOULD HAVE BEEN LIABLE BUT
FOR SECTION 21”
The RAF steps into the shoes of the wrongdoer. If the wrongdoer was not liable then the RAF also
does not incur liability.
2.9.2 SECTION 19(b)(i)

Regarding passengers on motor cycles for reward (insofar as this may be possible having regard to the
definition of “reward”): their claims were excluded. This was deleted in the amended act.
2.9.3 SECTION 19(b)(ii) – HOUSEHOLD MEMBERS UNDER THE PRECEDING

LEGISLATION
A person who was an ordinary passenger in terms of Section 18(1)(b), or a member of the household
or responsible in law for the maintenance of the driver of the motor vehicle concerned, and was being
conveyed in or upon the motor vehicle concerned was excluded from claiming from the RAF. This
exclusion was only applicable to passengers classified as ordinary passengers.
The head of the household: exclusion only applicable if driver is the head of the household of which
the claimant passenger is a member.
Passenger must be a member of the household of the driver.
(a) There should be some relationship between them, and
(b) The person must occupy, live or dwell on the same household premises.
Incorporated General Insurance Ltd v Reinecke 1976 (1) SA 591 (A).
This passenger must in law be responsible for the maintenance of the driver. Mum or dad is passenger
in motor vehicle driven by child. They have no claim. It is a factual question. See comments under
locus standi.
In Kruis v MMF (TPD 10315/94) the Court held there could be more than one head of a household and
that a household could be run by a collective or joint heads.
SECTION 19(b)(ii) DECLARED UNCONSTITUTIONAL AFTER ITS DELETION FROM THE ACT
Da Silva v Road Accident Fund and Another [2014] ZACC 21: This whole exclusion in S 19(b)(ii)
as it stood under the preceding legislation, had been declared unconstitutional and the TP Act
was made applicable to it.
Ms da Silva was severely injured in a motor vehicle accident on 29 April 2006 in which she was a
passenger. The motor vehicle was driven by her husband. It was common cause that the sole cause of
the collision was the negligence of her husband, who collided with a horse. The provision precluded
her from claiming damages from the RAF under the old Act. Despite two later amending Acts, Ms
da Silva remained without remedy. In 2005 the Road Accident Fund Amendment Act (Amendment
Act) was passed. The Amendment Act repealed section 19(b)(ii), but the section continued to apply to
claims against the RAF where, as in the case of Ms da Silva, the cause of action arose before 1 August
2008. In 2012 the Road Accident Fund (Transitional Provisions) Act (Transitional Act) was passed.
It followed this Court’s decision in Mvumvu. The Transitional Provisions Act sought to remedy the
©LSSA 18
constitutional flaws in section 18 of the old Act, but does not deal with persons whose claims are
excluded by section 19 of that Act.
The Court a quo made the following order, which was confirmed by the Constitutional Court on
19 June 2014:
“66.1 It is declared that section 19(b)(ii) of the Road Accident Fund Act 56 of 1996, as it read prior to
1 August 2008, is inconsistent with the Constitution and invalid.
66.2 The order in paragraph 66.1 above does not apply to claims in respect of which a final settlement
has been reached or which have prescribed or in which a final judgement had been granted,
before the date of confirmation of this order by the Constitutional Court.
66.3 Claims to which the order in paragraph 66.1 applies shall be governed by the Road Accident
Fund (Transitional Provisions) Act 15 of 2012, provided that in respect of such claims the period
of one year contemplated in section 2 of the Act shall not commence running before the date of
confirmation of this order by the Constitutional Court.
66.4 Upon confirmation of the invalidity of section 19(b)(ii) of the Road Accident Fund Act 56 of
1996, as it read prior to 1 August 2008, by the Constitutional Court, the Road Accident Fund is
directed within 14 days to:
66.4.1 Pay an amount of R4 014 079.90 to the applicant; and
66.4.2 Issue the applicant with an undertaking in terms of section 17(4)(a) of the Road
Accident Fund Act 56 of 1996.”
Claimants whose claims were therefore limited in terms of Section 19(b)(ii) of the preceding
legislation, had until 19 June 2015 to apply the provisions of the TP Act to their previously
excluded claims and exercise a right to elect whether they want to continue i.t.o. the preceding
or current legislation.
2.9.4 HANDLING OF CLAIM

Section 19(c): if the claim concerned has not been instituted or prosecuted by the third party or on
behalf of the third party by:
(i) any person entitled to practice as an attorney within the Republic; or
(ii) any person who is in the service, or who is a representative of the state or government or a
provincial, territorial or local authority
A third party may prosecute his claim personally. An attorney may assist a third party.
2.9.5 MANDATE
Section 19(d) where the third party has entered into an agreement with any person other than an
attorney or a state employer in accordance with which the claimant has undertaken to pay to such
person after settlement of the claim a portion of the compensation of the claim or any amount in
respect of an investigation or of a service rendered in respect of the handling of the claim otherwise
than an instruction from the attorney or a state employer.
2.9.6 REFUSAL / FAILURE TO SUBMIT TO MEDICAL EXAMINATION

Section 19(e) If the third party refused to subject himself to a medical examination or fails to furnish
the Fund with medical reports at its request
2.9.7 DISCLOSURE OF EVIDENCE TO THE RAF

Section 19(f) If the third party refuses to submit an affidavit of how the accident happened or fails
to furnish the Fund with all statements and documents relating to the accident or fails to furnish in
writing such further particulars as the Fund may require
©LSSA 19
2.10 RIGHT OF RECOURSE
2.10.1 SECTION 22: DUTY OF SUBMISSION OF INFORMATION TO RAF; AND THE

RAF TO THE THIRD PARTY
S 22(1)(a). This section requires the owner and the driver of a motor vehicle involved in an accident
where personal injury or death has taken place to, if reasonably possible, within 14 days after the
accident to furnish the Fund on the prescribed form (Form 3) with details of the occurrence and also
to furnish statements as requested irrespective of who is to blame.
Section 22(2). The Fund shall likewise within a reasonable period after the third party has complied
with the requirements contemplated in section 19(f)(i) furnish the third party or his or her agent with
a copy of the information and statements which the owner or driver furnished in terms of subsection
(1), together with all statements which were or are obtained from witnesses to the accident.”
2.10.2 SECTION 25: RIGHT OF RECOURSE OF FUND

Where a driver was under the influence drugs or of intoxicating liquor to such a degree that his or
her condition was the sole cause of the accident or the driver did not have a valid driver’s licence and
some other person suffers bodily injuries as a result of the negligence of the driver, the RAF is obliged
to compensate the victim subject to the provisions of Section 17(1). The RAF will be entitled without
taking cession of the right of action, to recover from the driver. Similarly where the owner allows a
person to drive knowing that the person is under the influence of intoxicating liquor or does not have
a proper driver’s licence, the RAF will have to pay out the victim but will be entitled to recover from
the owner. This has been retained in the amended act.
2.11 COSTS: PARTY-AND-PARTY PAID EVEN AFTER SETTLEMENT

Section 17(2) of the preceding legislation stipulates that upon acceptance of an amount offered as
compensation in terms of subsection (1) the third party is entitled to the agreed or failing agreement,
the taxed party and party costs. In the preceding legislation plaintiff also had the right to recover
taxed party and party costs from the RAF if agreement cannot be reached without an order by the
Court and without having to issue a summons.
All reasonable and necessary costs incurred will be allowed. It remains a factual question to be
decided by the Taxing Master. Section 17(2) had been deleted in the amendments. See 3.7.
2.12 INTEREST / OFFER OF SETTLEMENT SECTION 17(3) OF THE RAF ACT

In terms of section 17(3)(a) no interest is payable on the amount of compensation that a Court awards
to a third party unless 14 days have elapsed from the date of the Court Order. A Court, when making
an award of costs, may take into consideration any written offer of settlement, including a written
offer without prejudice in the course of settlement negotiations made before summons was served
(17(3)(b).
2.13 UNDERTAKINGS FOR PAYMENT OF: FUTURE MEDICAL AND HOSPITAL

EXPENSES SECTION 17(4)(a) AND FOR: FUTURE LOSS OF INCOME AND
FUTURE LOSS OF SUPPORT
SECTION 17(4)(b)
Where a claim for compensation includes a claim for the above, the RAF may offer an undertaking
rather than cash. These sections have been retained in the act after the amendments and the applica-
tion and interpretation thereof remains the same and continues to develop with new case law. See 3.9
©LSSA 20
THERE WERE AND STILL ARE TWO TYPES OF UNDERTAKINGS:
2.13.1 SECTION 17(4)(a) UNDERTAKING:

• can be used at the election of the defendant to pay for future medical expenses;
• the liability for the future medical expense must have been incurred by the Third Party, and only
then will the RAF effect payment or the RAF must be approached to guarantee payment to the
supplier of service;
• future medical treatment must be fair, reasonable and necessary and must be rendered as a
sequelae of the injuries sustained in the accident;
• a refund will be in the amount as paid for when the treatment is given.
The RAF can apportion a section 17(4)a) undertaking. The undertaking may contain a reduced offer
in terms of the Apportionment of Damages Act.
2.13.2 SECTION 17(4)(b) UNDERTAKING:

• Can be used at the election of the defendant to pay for future loss of earnings;
• In respect of future loss of earnings, payment will be for the amount of the income as lost when
claimed in the future;
• There must be consensus between the parties on the contents of the undertaking, which must
reflect the instalments to be paid by the RAF.
• Apart from the calculation of the periodical payment, the total of the undertaking would usually
have been unlimited, but payments would usually be suspended on the predicted retirement date
of the defendant, or if it was based on the death and loss of support from a deceased breadwinner,
payments to the dependant would cease on the date when the right to be maintained comes to an
end.
Section 17(4)b) of the preceding legislation has for practical purposes proved to be useless
because of the words “by instalments in arrear as agreed upon resulting in a lot of cases having
to go to court due to the parties not being able to agree upon the parameters of calculation. It
has been retained and expanded after the amendments.
There was no limitation on the amount that could be settled on or be awarded by the Court for
future loss of earnings or future loss of support. In the current legislation there is a limitation.
2.14 INTERIM PAYMENT

SECTION 17(6): This section is still in the act after the amendments but has been amended.
Advance payments were and still are governed by:
• Section 17(6) of the RAF Act.
• Rule 34(A) of the High Court Rules.
The Fund may make an advance payment to a Third Party, out of the amount to be awarded to
such a Third Party in respect of:
• Medical Costs;
• Loss of Income;
• Loss of Support.
There is no formal way to request an advance payment from the RAF, but if the plaintiff wants to
bring an application to court to enforce such an advance payment, Rule 34(A) of the High Court Rule
apply. This dictates that merits had to be conceded by the Defendant (RAF) or partly conceded before
a court may order such an advance payment.
©LSSA 21
2.15 PROCEDURE TO LODGE CLAIM
There are no amendments to the wording of section 24 in the current legislation. However there are
vast practical changes in the procedure. Note the considerable differences in the claim forms and
medical reports. Note the radical procedural changes which have been brought about by the require-
ments relating to “a serious injury” taking into consideration the Road Accident Fund Regulations,
2008 and the RAF 4 (serious injury assessment report) form.
COMPENSATION
A claim for compensation must be set out in the prescribed manner on the prescribed Form 1, which
is an annexure to the regulations to the RAF Act, together with the medical report which is part of
Form 1 that must be completed in all its particulars and supporting vouchers and statements must
accompany the claim form. The medical report section of the claim form should be completed by the
medical practitioner (or superintendent of the provincial hospital) who first treated the deceased or
injured person.
The Form 1 has been amended from 1 August 2008.
The Form 1 has to be sent by registered post or delivered by hand to any of the Fund’s offices under
the preceding legislation.
The Fund is obliged in respect of a claim delivered by hand to acknowledge receipt at the time of
delivery and in writing to acknowledge the date of such receipt. The lodgement of the claim is the
demand which the third party is obliged to make.
The RAF has 120 days from the date of lodgement to investigate the claim. The 120-day period
from lodgement of the claim form is calculated according to the civil method of calculation. The third
party has to wait for the 120-day period to expire before SERVING a summons, unless the RAF repu-
diates the claim earlier.
2.15.2 SECTION 24(5)

This section provides that a claim shall be deemed to be valid in law in all respects if the Fund does
not within 60 days from date on which a claim was sent by registered post or delivered by hand
objected to the validity thereof.
Klopper in “Law of Third Party Compensation” submits that section 24(5) only applies to formal
defects referred to in section 24 only and not in any other sections such as sections 19(e) or
19 (f). Section 24 (5) does not apply to non-compliance with regulations.
In Krischke v RAF 2004 (4) SA 358 (W) the attempt to amend the plaintiff’s replication to aver that
because the defendant did not object to the validity in terms of section 24(5) within 60 days it could
not raise prescription, was disallowed.
2.15.3 SECTION 24(6) - NO SUMMONS BEFORE 120 DAYS HAVE LAPSED

No claim is enforceable by legal proceedings commenced by a summons served on the Fund before
the expiry of a period of 120 days from the date on which the claim was lodged, and before all the
requirements of the Fund as set out in Section 19(f) of the RAF Act have been complied with. However,
should the Fund repudiate in writing liability before the expiry of this period, the summons may be
served immediately thereafter.
©LSSA 22
3. PRESCRIPTION: CLAIMS AGAINST RAF
3.1 SECTION 23: THREE YEARS TO LODGE

Section 23(1) reads as follows:
“Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and
(3), the right to claim compensation under section 17 from the Fund or an agent in respect of loss or
damage arising from the driving of a motor vehicle in the case where the identity of either the driver
or the owner thereof has been established, shall become prescribed upon the expire of a period of
three years from the date upon which the cause of action arose.”
The 3-year period is calculated in accordance with the ordinary civil method. “The first day is
included and the last day is excluded.” In terms of the Act, effective lodgement on the Fund occurs if
the document is delivered by hand or sent by registered post. Example: if the accident occurred on the
15th of June 1999, the plaintiff is a major and the owner and/or driver of the negligent vehicle is iden-
tified, then the claim must be lodged by hand or by registered mail by midnight on the 14th June 2002.
3.2 SECTION 23(2) - PRESCRIPTION DOES NOT RUN

(a) A minor
(b) Any person detained as a patient in terms of applicable mental health legislation
(c) A person under curatorship
And from case law: persons who are insane / non compos mentis
3.3 SECTION 23(3) - FIVE YEARS TO SERVE SUMMONS

This section provides that no valid claim, which has been lodged within three years, shall prescribe
before the expiry of a period of five years from the date on which the claim arose.
METHOD OF CALCULATION: The 5-year period: ordinary civil method, the first day is included and
the last day is excluded.
3.4 DEPENDANTS’ CLAIMS

A dependant’s right to claim loss of support from the Fund becomes prescribed upon the expiry of a
period of 3 years from the date on which the breadwinner passed away and 5 years from the date of
death of the breadwinner, subject to s 23(2).
3.5 NO EXTENSION OF PRESCRIPTION IS POSSIBLE

Since proclamation 102 of 1991 no condonation or waiver of the statutory right to invoke prescription
is possible or permissible.
Swanepoel v City of Johannesburg City Council; President insurance Co Ltd v Kruger 1994 (3) SA
789 (A).
3.6 REFERENCES TO PRESCRIPTION IN MVA CLAIMS IN ACTS BEFORE ACT 56 OF

1996
1. Act 56 of 1972
Accidents up to 30 April 1986. Prescribe after 2 years, 90 days subject to further extension by the
Fund.
2. Act 84 of 1986
Claims must be lodged within 2 years, subject to the provisions of Section 14(1)(b). Accidents between
1 May 1986 and 30 April 1989 (1991 Amendment Act not applicable).
©LSSA 23
Prescribe after 90 days from date of offer/ repudiation subject to further extension granted by the
Fund.
3.Act 93 of 1989
Claims must be lodged within 2 years subject to the provisions of Article 56.
Accidents between 1 May 1989 and 31 October 1991 (overlaps with 1991 Amendment Act provided
claim was lodged timeously and has not yet prescribed on 1 November 1991).
Always determine state of the claim as on 1 November 1991. If claim was “alive” on 1 November 1991
Amendment Act automatically applies which means that claim will automatically become prescribed
after 5 years of date of which claim arose. If claim was not “alive” on 1 November 1991 the Amend-
ment Act will not assist and it will not apply.
EXAMPLE
3.1 Accident 10/05/89 Lodged 18/10/91 (outside 2 year period)
Claim not “alive on 1 November 1991 and has therefore become prescribed (Amendment Act not
applicable).
3.2 Accident 10/05/89 Lodged 18/03/91 (timeously lodged within 2 years)
The 1991 Amendment Act applies. Claim would have prescribed on 09/05/94 but Fund has granted auto-
matic extension in respect of these claims until 31/12/94.
3.3 Accident 10/05/89 Lodged 18/03/91 Offer 20/05/91
Prescribed 20/08/91 90 days 20/08/91
Claim not “alive” on 01/11/91 and 1991 Amendment Act not applicable.
4. Amendment Act of 1 November 1991

Accidents as from 1 November 1991 but also retrospective in respect of accidents prior to 1 November
1991 provided claim was still “alive” (unprescribed) on 1 November 1991.
Claim must be lodged within 3 years from date of accident and will automatically become prescribed
after 5 years from date of accident, subject to the provisions of Article 56 of Act 93 of 1989.
5. Act 56 of 1996
Accidents from 1 May 1997.
Claim must be lodged within 3 years from the date of accident and shall automatically become
prescribed after 5 years from the date of accident subject to the exclusions and where the owner or
driver is identified.
A PRACTICAL EXAMPLE
Mr and Mrs X are involved in an accident. Mr X was driving but the accident is not his fault. A truck smashed
into the back of Mr X’s motor vehicle whilst it stood stationary at a red robot. The accident occurred on the
2nd September 1998. Mr X broke his spine in the accident and subsequently died on the 15th April 1999, as
a result of the injuries sustained. Their minor son, Paul, was also injured in the accident having been a back
seat passenger at the time. Paul is 10 years old.
Prescription for each of the injured parties would be the following:
MR X
If he started proceedings in his own name prior to death:
DATE OF ACCIDENT LODGE CLAIM SERVE SUMMONS
2 September 1998 1 September 2001 1 September 2003
Remember that when he dies prescription is interrupted until an executor to his estate is appointed.
One would then substitute the executor as claimant or, if still in time, possibly lodge new substantive
claim. The question of litis contestatio is relevant. See notes on locus standi.
©LSSA 24
MRS X
a) For her own injuries:
b) For the loss of support because of her husband’s death:

DATE OF DEATH LODGE CLAIM SERVE SUMMONS
15 April 1999 14 April 2002 14 April 2004
PAUL
a) His loss of support claim due to the death of his father and his own personal injury claim for all
damages excluding past medical and hospital expenses.
DATE OF MAJORITY LODGE CLAIM SERVE SUMMONS

Age 18 within 3 years after attaining age 18 within 5 years after attaining age 18
Remember that a child can proceed with a claim assisted by his guardian at any stage and the above
time frames are the latest dates.
a) The claim for past medical and hospital expenses are those of the guardian as Paul did not suffer
these damages:

Did you know that the minor’s right to claim against the Fund where the motor vehicle causing the loss
is identified only prescribes three years after the minor becomes a major for the purpose of lodging the
claim and five years after he becomes a major to serve the summons?
4. HIT-AND-RUN CLAIMS UNDER THE PRECEDING LEGISLATION (THE

PREVIOUS REGULATIONS BEFORE 1 AUGUST 2008)
4.1 INTRODUCTION
Provision is made for the Fund to handle those claims, which arise from the driving of a motor vehicle,
where the identities of neither the owner nor the driver can be established. Hit-and-run claims were
dealt with in terms of S17(1)(b) read together with Regulation 2. The wording is specific and requires
that neither the identity of the owner nor the driver can be established.
4.2 PRESCRIPTION
Prescription with regards to hit-and-run claims differed from those claims where the owner and/or the
driver are identified. With a hit-and-run claim the plaintiff’s attorney must lodge a valid claim against
the RAF within a period of two years from the date the cause of action arose, irrespective of whether
the claimant is a minor, under curatorship or detained in terms of health legislation in respect of
claims arising from 1 May 1997.
The regulations under the Multilateral Motor Vehicles Accident Fund Act relating to accidents between
1 November 1991 and 30 April 1997 regarding physical contact & minority have been held to be ultra
vires.
Mahambo v RAF 2005 (6) SA 475 (T): Regulation 2(3) is not unconstitutional. (The 2-year prescrip-
tion period for hit-and-run claims is now contained in Regulation 2(1) and (2) after the amendments
of 1 August 2008.)
©LSSA 25
Geldenhuys & Joubert v Van Wyk and another; Van Wyk v Geldenhuys & Joubert and another
2005 (2) SA 512 (SCA);
Padongelukkefonds v Prinsloo 1999 (3) SA 565 (SCA);
Moloi & Others v RAF 2001 (3) SA 546 (SCA);
But Mbatha v MMF [1997] (2) ALL SA 483 (A): regulation of 2 years prescription period for adult is
intra vires.
Jethro N.O v Road Accident Fund (10534/2006) [2015] ZAWCHC 101 (29 July 2015): Although the
court in Moloi’s case dealt specifically with the position of a claimant who had been a minor at the
date of a collision, the ratio applies equally to the patient, being a person ‘under curatorship or …
prevented by superior force … from interrupting the running of prescription and she is thus in the
same position as a minor. Where the patient remains in a permanent vegetative state, she therefore
similarly enjoys the protection afforded by Moloi and completion of the statutory prescriptive period
remains delayed even in a “hit-and-run” claim.
4.3 SPECIAL REQUIREMENTS FOR HIT-AND-RUN CLAIMS THAT HAD TO BE

COMPLIED WITH UNDER THE PRECEDING LEGISLATION
4.3.1 NEGLIGENCE OR OTHER WRONGFUL ACT

This is in the Act itself anyway as a requirement for any claim, and regardless of the deletion
thereof in the 2008 Regulations, it remains a prerequisite for a successful hit-and-run claim as
well under the current legislation.v
4.3.2 REASONABLE STEPS TO IDENTIFY

Regulation 2(1) (b) – the third party took all reasonable steps to establish the identity of the
owner or the driver of the motor vehicle concerned.
Evidence had to be furnished that the claimant took all reasonable steps to identify the owner and/or
driver of the unidentified motor vehicle.
4.3.3 AFFIDAVIT TO THE POLICE – DECLARED UNCONSTITUTIONAL

Regulation 2(1)(c) - the third party submitted, if reasonably possible, within 14 days after being in
a position to do so an affidavit to the police in which particulars of the occurrence concerned were
fully set out.
On 6 March 2007, Kondile AJ, on behalf of the Constitutional Court in Engelbrecht v RAF and
Minister of Transport 2007 (6) SA 96 (CC), referred to in Mntambo v RAF 2008 (1) SA 313 (W), ruled
that regulation 2(1)(c) is inconsistent with Section 34 of the Constitution and that “the provision must
be struck down or severed from the other provisions in regulation 2(1)”. Kondile AJ decided that the
order of invalidity was not to be retrospective and therefore to have no effect on cases which had been
finalised before the judgement.
Whilst this judgement has had harsh consequences to the RAF it is worthwhile reading as the
mass of prior reported cases that had been decided on this controversial sub-regulation are encapsu-
lated and the judgement is solidly reasoned.
4.3.4 PHYSICAL CONTACT – DECLARED ULTRA VIRES

Regulation 2(1)(d) - the motor vehicle concerned (including anything on, in or attached to it)
came into physical contact with the injured or deceased person concerned or with any other
person, vehicle or object which caused or contributed to the bodily injury or death concerned.
See Bezuidenhout v RAF 2003 (6) SA 61 (SCA) where physical contact is no longer a requirement
as Regulation 2(1)(d) requiring physical contact with the unidentified vehicle falls outside the object
and purpose of the Act and is therefore ultra vires.
©LSSA 26
4.4 CERTIFICATE de PROBABILIS CAUSA

Regulation 2(5)
An independent advocate or attorney with not less than 10 years standing had to certify in writing
that plaintiff has a reasonable prospect of success before a Court is permitted to hear any evidence
in a “hit and run” case. The person who furnished the certificate was not allowed to represent the
parties. The information regarding the merits had to be obtained from both sides in order to give
proper consideration on the prospects.
4.5 INTERROGATION
Regulation 2(6)
The claimant is under an obligation to submit himself to an interrogation at the request of the Fund.
The claimant is entitled to have his legal representative present at the interrogation.
4.6 GENERAL
All the provisions regarding liability, limited liability, exclusion of liability, information and proce-
dures apply to hit-and-run claims in the same fashion that they apply to claims where the owner or
driver is identified.
4.7 ABANDONMENT OF CERTAIN ADDITIONAL REQUIREMENTS

The additional requirements of Regulation 2 of the Regulations under the preceding legislation
regarding the taking of all reasonable steps to identify the owner or driver, and the furnishing of the
certificate probabilis causa, are no longer applicable.
4.8 PRESCRIPTION OF HIT-AND-RUN CLAIMS UNDER THE PRECEDING ACT

Prescription with regards to hit-and-run claims differs from those claims where the owner and/or the
the RAF within a period of two years from the date the cause of action arose, as prescribed in Regu-
lation 2(1) and 2(2).
As found in Mahambo v RAF 2005 (6) SA 475 (T): Regulation 2(3) of the preceding regulations is
not unconstitutional. As such one may accept that the current 2-year prescription period is also not
unconstitutional.
The plaintiff’s attorney must then serve a summons on the RAF within a period of 5 years from the
date the cause of action arose to prevent final prescription of the plaintiff’s claim. Remember that no
one is excluded from the prescription periods and the RAF has no inherent power to grant condona-
tion for any late lodgement of the claim form or late service of the summons. If you therefore do not
comply with the time periods, your client’s claim will become finally prescribed and once again, you,
as plaintiff’s attorney, can be held liable on the basis of professional negligence.
Prescription of hit-and-run claims remain the same after the amendments of 1 August 2008.
4.9 LOCUS STANDI

Locus standi has not changed and continues to evolve after the amendments of 1 August 2008. Please
refer to the Chapter in this manual dealing with locus standi.
4.10 THE APPORTIONMENT OF DAMAGES ACT

The application of this Act remains the same before and after the amendments of 1 August 2008.
Please refer to the Chapter in this manual dealing with the Apportionment of Damages Act 34 of 1956.
“Where any person suffers damage which is caused partly by his own fault and partly by the fault of
any other person, a claim in respect of that damage ………… shall be reduced by the court to such
©LSSA 27
extent as the court may deem just and equitable having regard to the degree in which the claimant was
at fault in relation to the damage.”
Section 1(a) of Act 34 of 1956 empowers the court to reduce damages if the person who suffers
damages was partly at fault (liable, to blame, and culpable) for the damages suffered. The damages
are reduced to the extent of the fault. The court decides each person’s degree of fault (liability, blame,
culpability), as a percentage.
4.11 JOINDERS
Joinders have, in the preceding and current Act, played a significant role in MVA litigation. The joinder
of parties is discussed more generally below in the short Chapter relating to joinders.
A significant change since 1 August 2008, is the fact that under the preceding Act a driver or owner
of a motor vehicle, and / or the driver’s employer vicariously liable, could be joined as a joint wrong-
doer in those cases where the RAF’s liability was limited or in some cases, excluded. This means that
the driver or owner of a motor vehicle and / or the driver’s employer vicariously liable could be held
responsible for all damages that the RAF was not liable for. After the amendments of 1 August 2008
this is not possible anymore, as the common law claim against any driver or owner of a motor vehicle
had been abolished in s 21(1).
Any other joint wrongdoer could also be joined or sued directly together with the RAF as another
defendant on the papers.
4.12 ASSESSMENT OF DAMAGES UNDER THE PRECEDING LEGISLATION

The assessment of a plaintiff’s damages took place in the same way as would currently be the case.
After the assessment of the amount was done, it was however necessary to ascertain whether the
final amount was not limited in terms of s 18(1).
Future loss of earnings or future loss of support was not limited either, unless the claim fell within
the ambit of s 18(1). General damages were payable in all cases where personal injury was suffered
and such general damages were not limited at all but were assessed by referring to case law. No sepa-
rate assessment had to be done in order to prove the liability of the RAF for such general damages
either.
4.13 COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT 130 OF

1993 (“COIDA”): IT’S APPLICATION TO THE PRECEDING ACT
4.13.1 SECTION 35 COIDA

On 1 March 1994, the Workmen’s Compensation Act no 30 of 1941 was repealed by the Compensa-
tion for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”). The Workmen’s Compensation
Commissioner is now called the Compensation Commissioner and compensation for such injuries and
diseases is paid by the Compensation Fund.
In terms of Section 35 of COIDA an employee cannot sue his employer and is only entitled to
claim compensation as provided for and in terms of COIDA.
Section 35 of COIDA bars an employee or his dependant from suing his or her employer or a person
deemed to be the employer in terms of the COID Act Section 56(1)(b), (c), (d) and (e). This is a statutory
provision, which negates the employee’s common law right. This has the effect that the wrongdoer, if
it is also the employer, may not be held liable by the injured. The RAF may take that same special plea
and can also not be held liable by the injured.
The only recourse that this injured has would be an “injury on duty” claim against the Compensa-
tion Commissioner i.t.o. COIDA.
The effect of section 35 of COIDA remains in force where an injured is either a passenger or a pedes-
trian being injured by his employer.
©LSSA 28
4.13.2 THE COMMISSIONER CAN CLAIM BACK FROM THE RAF: S 36 OF THE COIDA.
The Commissioner does not stand in the position of the employee when he institutes such a claim.
He has a statutory and independent right to bring such a claim, although restricted by Section 36 of
the COIDA, which provides that the Commissioner cannot recover a greater amount than the employee
himself could have recovered, should the Act not have existed. The Commissioner cannot be regarded
as a joint wrongdoer in terms of the provisions of the Apportionment of Damages Act.
Section 36 compels a Court, when awarding compensation to a Claimant, to take into consideration
such payments as the Commissioner is likely to make, or has made to the Plaintiff worker.
The term, “Compensation Commissioner” includes “the employer individually liable”, who makes
no payment of premium to the Commissioner, but registers with the Commissioner as an employer
individually liable and is directly responsible to an employee. Such employer usually indemnifies
himself against such a risk by insuring with an insurance company therefore.
This also applied where claims against the RAF were limited in terms of s 18(1), the RAF Act in s
18(2) provides that where loss or damage contemplated in S 17 is suffered as a result of bodily injury
to or the death of an employee of the driver or owner of a motor vehicle, and the Third Party is entitled
to compensation under the Compensation Act in respect of such injury or death, then the liability of
the Fund in respect of such bodily injury or death of any one such employee, is limited in total to the
sum representing the difference between the amount which the Plaintiff could have claimed from the
Fund and any lesser amount to which the Plaintiff is entitled by way of compensation under COIDA.
Thus S 18(2) deals with the situation where an employee of the driver or owner of the offending
vehicle is injured or killed in circumstances rendering the Third Party entitled to compensation on the
basis that the injured person must have been an employee of the driver or owner of the guilty (insured)
vehicle and he must have been on duty at the time of his injury.
Under the current legislation S 18(1) that contained the limitations were deleted on 1 August 2008
and any reference to such limitation had been deleted from the rest of Section 18.
The general principle applicable to all claims however still remain that if COIDA benefits are paid
to a claimant for personal injury or death as a result of a motor vehicle accident, the RAF may deduct
whatever was paid in terms of COIDA and thus the RAF is only liable for the difference between the
COIDA benefit actually paid and the proven common law damages.
4.14 APPORTIONMENT
Under the preceding legislation and the current legislation in determining the Plaintiff employee’s
full common law damages (irrespective of the amount claimed by him), any apportionment against
his claim had to be applied against those full damages before any COIDA benefit are subtracted. It is
calculated in the same way than before the RAF amendments of 1 August 2008.
Refer to the chapter on COIDA in this regard.
5. the Road Accident Fund Act 1996, Act No. 56 of 1996 AFTER
The amendments of 1 august 2008
5.1 FORMATION OF THE ROAD ACCIDENT FUND (THE “raf ”)

The Road Accident Fund remain a juristic person, which acquired the assets, liabilities, rights and
obligations of the Multilateral Motor Vehicle Accidents Fund when the RAF Act came into existence
on 1 May 1997 as established in s 2(1) of the act.
Establishment of Fund
Section 2(1) There is hereby established a juristic person to be known as the Road Accident Fund.
Section 2(2)(a) Subject to Section 28(1), the Multilateral Motor Vehicle Accidents Fund established by
the agreement concluded between the Contracting Parties on 14 February 1989, shall cease to exist,
and all money credited to that fund immediately before the commencement of this Act shall vest in the
Fund, all assets, liabilities, rights and obligations, existing as well as accruing, of the first mentioned
©LSSA 29
fund shall devolve upon the Fund, and any reference in any law or document to the said Multilateral
Motor Vehicle Accidents Fund shall, unless clearly inappropriate, be construed as a reference to the
Fund.
5.2 DEFINITIONs
Section 1 of the RAF Act contains definitions, which had considerable practical application. Bear in
mind particularly the definitions of “conveyance”, “motor vehicle” and “reward”.
“Reward” is not relevant in the current legislation as Section 18(1) of the preceding legislation
referring to “passengers for reward” has been deleted.
5.3 LIABILITY OF THE RAF
5.3.1 SECTION 17(1)

The Fund . . . shall –
(a) subject to this Act, in the case of a claim for compensation under this Section arising from the
driving of a motor vehicle where the identity of the owner or the driver thereof has been established;
(b) subject to any regulation made under Section 26, in the case of a claim for compensation under
this Section arising from the driving of a motor vehicle where the identity of neither the owner nor the
driver thereof has been established, be obliged to compensate any person (the third party) for any loss
or damage which the third party has suffered as a result of any bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or arising from the driving of a motor
vehicle by any person at any place within the Republic, if the injury or death is due to the negligence
or other wrong ful act of the driver or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as employee.
Section 17 establishes the liability of the RAF in cases of personal injury resulting from motor vehicle
collisions. It has to be read together with Section 21(1), where the liability of any owner or driver or
the employer of the driver, (vicariously liable) is abolished. The heading of the section clearly indicates
that the common law claims against these persons or entities are abolished. This abolition met with
the approval of the Constitutional Court in Law Society of South Africa and Others v Minister for
Transport and Another referred to above.)
5.3.2 SECTION 21(1): ABOLITION OF CERTAIN COMMON LAW CLAIMS

Abolition of certain common law claims
(1) No claim for compensation in respect of loss or damage resulting from bodily injury to or the death
of any person caused by or arising from the driving of a motor vehicle shall lie–
(a) against the owner or driver of a motor vehicle; or
(b) against the employer of the driver.
(2) Subsection (1) does not apply–

(a) if the Fund or an agent is unable to pay any compensation; or
(b) to an action for compensation in respect of loss or damage resulting from emotional shock sustained
by a person, other than a third party, when that person witnessed or observed or was informed of the
bodily injury or the death of another person as a result of the driving of a motor vehicle.
[Section 21 substituted by section 9 of Act No. 19 of 2005 with effect from1 August 2008.]
A third party may therefore not claim compensation in respect of that loss or damage from the owner
or from the person who drove the vehicle, or if that person drove the vehicle as an employee in the
performance of his or her duties, from his or her employer. The owner/driver may NOT be sued EVER,
under the common law, for any damages exceeding the reduced damages claimable from the RAF
under the current legislation.
©LSSA 30
The only exception is that the liability of the RAF to pay damages for emotional shock to a person who
either sees, hears or witness injuries/death to some other person has been excluded by the amend-
ment incorporated in Section 19 (g). Section 21(2)(b) allows a common law claim for such damages as
awarded in the cases of Bester, v Commercial Union 1973 (1) SA 769 (AD), Barnard v Santam 1999
(1) SA 202 (AD) and RAF v Sauls 2002 (2) SA 55 (SCA).
GENERAL DAMAGES FOR MINOR INJURIES EXCLUDED

The proviso aimed at excluding claims against the RAF for general damages for minor injuries has
been introduced. The RAF is only liable to compensate a third party for non-pecuniary loss (general
damages) in respect of “A SERIOUS INJURY” as contemplated in Section 17(1A).
5.4 ESSENTIAL COMPONENTS IN THE CURRENT LEGISLATION
5.4.1 LIABILITY IS FAULT BASED

The third party must prove negligence or another unlawful act on the part of the driver of another
motor vehicle, or the owner of a motor vehicle to be successful.
5.4.2 ONLY FOR BODILY INJURIES OR DEATH

The plaintiff must have suffered a physical injury or a financial loss as a result of an injury to a
dependant or death of a breadwinner
• The plaintiff cannot claim for broken spectacles or damaged false teeth that he had before the colli-
sion, or for luggage in the motor vehicle (damage to property also known as a material damages
claim).
• Naturally, if he broke his own teeth in the accident, then the Fund would be liable for the cost of
dentures in the future.
BODILY INJURY EMBRACES MENTAL INJURY

Bester v Commercial Union 1973 (1) SA 769 (A)
Deon Bester who was 11 years old, was running across the street about two paces in front of his 6 year
old brother who was knocked over and suffered fatal injuries. Deon sustained serious shock, which
affected him psychologically and gave rise to an anxiety neurosis, necessitating medical treatment. It
was held on appeal that there is no reason in our law why somebody, who, as the result of the negli-
gent act of another, has suffered shock or psychiatric injury with consequent indisposition, should not
be entitled to compensation, provided the possible consequences of the negligent act should have been
foreseen by the reasonable person who should find himself in the place of the wrong-doer. This does not
refer to insignificant emotional shock of short duration which has no substantial effect on the health
of the person and in respect of which compensation would not ordinarily be recoverable.
Barnard v Santam 1997 (4) SA 1032 (T)
Here it was found that emotional shock following a telephone call advising that the plaintiff’s son was
involved in an accident could found a claim against the Fund. The brain and nervous system are part
of the human body, and nervous shock or psychiatric trauma constitutes bodily injury.
RAF v Sauls 2002 (2) SA 55 (SCA)
Plaintiff who was traumatised as a result of her mistakenly believing her fiancé was seriously injured
by a vehicle passing too close to him is entitled to compensation.
Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC)
In this case first appellant was involved in a motor-vehicle accident in which she alleged that she had
sustained a psychiatric injury which caused her to be ‘so demotivated that she could not arrange for
the rental of certain apartments that she held as investments’. She proceeded to claim as damages her
lost rental income. The trial court found she had not proved a psychiatric injury and dismissed the
claim. First appellant then appealed to the full bench. It surveyed the law, which was to the effect that
a person could claim the damages which resulted from an identifiable psychiatric injury, provided the
©LSSA 31
requirements for delictual liability were present. In issue was whether first appellant had proven that
she had sustained a psychiatric injury or whether she was suffering from uncompensable grief. The
court held that this question had to be decided on the basis of psychiatric evidence which had to be
clear and cogently reasoned and preceded by a rule 36(9)(b) summary. Ultimately it upheld the trial
court’s finding that there had been no such injury.
5.4.3 MUST HAVE BEEN CAUSED BY OR ARISING OUT OF THE DRIVING OF A MOTOR
VEHICLE
The test is: “If the injury or death would have resulted, irrespective of whether the driving had occurred,
then such injury or death cannot be said to have arisen out of the driving.” This is a factual question
and the principles of causation are applicable with special emphasis on the sine qua non test and
novus actus interveniens, i.e. a new intervening act.
In Norris v RAF [2001] 4 All SA 321 (A) the collision was part of the process of an armed robbery.
The plaintiff as a result of the severe trauma to which he was exposed, suffered post-traumatic stress
disorder. The Court decided that it was artificial to break the incident up into separate parts. The harm
suffered by the plaintiff was found to be indivisible, and the collision, with the traumatic events that
went with it, was found to be a material cause of the disorder.
WHAT IS A “MOTOR VEHICLE” FOR PURPOSES OF THIS ACT?

One must first refer to the definition of “motor vehicle” in s 1 (xi) which includes a “motor car” as per
s 1 (x).
(x) “motor car” means a motor vehicle designed or adapted for the conveyance of not more than 10
persons, including the driver; (x)
(xi) “motor vehicle” means any vehicle designed or adapted for propulsion or haulage on a road by
means of fuel, gas or electricity, including a trailer, a caravan, an agricultural or any other imple-
ment designed or adapted to be drawn by such motor vehicle; (xi)
In order to determine whether a vehicle is a “motor vehicle” as defined in the RAF Act there must be
a factual enquiry taking the case law into consideration.
When this aspect is considered, one must be mindful of the fact that even though case law may
seem to confirm that the vehicle that injured your client is in fact a “motor vehicle” as defined by this
act, you still have to apply the test to the specific vehicle in your client’s case. If the vehicle referred
to in the case law is not identical in all aspects to the vehicle in your client’s case, it could be that the
outcome of the test may differ. There are for instance 2 cases where different makes of forklifts have
been found not to be motor vehicles, but another different make of forklift may well be adjudged to be
a motor vehicle for purposes of the RAF Act, as amended.
In Chauke v Santam 1997 (1) SA 178 (A), the Court states:
“The correct approach to the interpretation of the legislative phrase quoted above is to take it as a
whole and to apply to it an objective, common sense meaning. The word ‘designed’ in the present
context conveys the notion of the ordinary, everyday and general purpose for which the vehicle in
question was conceived and constructed and how the reasonable person would see its ordinary, and
not some fanciful, use on the road. If the ordinary, reasonable person would perceive that the driving
of the vehicle in question on a road used by pedestrians and other vehicles would be extraordinarily
difficult and hazardous unless special precautions or adaptation were effected, the vehicle would
not be regarded as a ‘motor vehicle’ for the purposes of the Act. If so adapted such vehicle would fall
within the ambit of the definition not by virtue of being intended for use on a road, but because it
had been adapted for such use”
Mutual & Federal Insurance Co. Ltd v Day 2001 (3) SA 775 (SCA)
D had been injured in a motor vehicle accident involving a forklift. The issue in question was whether
the forklift was a “motor vehicle” as defined in the Act. The trial court held in D’s favour that it was,
and this decision was upheld by the Full Bench. The third party insurer then lodged an appeal to the
Supreme Court of Appeal. The appeal was upheld. It was held that the mere fact that the road traffic
©LSSA 32
regulations permit a forklift to be driven on public roads does not mean that every forklift qualifies as
a “motor vehicle” for the purposes of third party legislation. A vehicle cannot be said to be “designed
or adapted for propulsion . . . on a road”. If its use on a road would be regarded as extraordinary and
hazardous. The forklift in question had a rear wheel steering system which made steering a difficult
task. It was found, on the facts, that the forklift had never been designed for general use on public
roads.
Factual questions to be answered to ascertain objectively whether a vehicle is a “motor vehicle”

(a) Would the vehicle normally be expected to be seen on the road by the normal ordinary rational
driver?
(b) Does the vehicle have headlights?
(c) Does it have brake lights?
(d) Does it have direction indicators?
(e) What is the maximum speed limit of the vehicle?
Other factual questions would be:

(a) Does the driver of the vehicle have an unobstructed view, e.g. forklifts? (Chauke’s case).
(b) Does the vehicle steer with the front wheels or back wheels? (Chauke’s case).
(c) Is the vehicle fitted with a speedometer?
(d) Does the vehicle have a hooter?
(e) What is the size of the tyres and does the size differ between the front and back wheels?
Other case law:

Matsiba v Santam Versekeringsmaatskappy Bpk 1997 (4) SA 832 (SCA);
Santam Limited v Mundy and Others (CPD), Case No: 4427/95:
The plaintiff was struck by a wheel, which came off a midget oval track-racing vehicle. The Court
found that the racing car had no handbrake, hooter, headlights, indicators, windscreen, etc. It was
therefore not a motor vehicle as defined in the Act. The plaintiff argued that all the items could be
fitted to the car in a short period of time. The Court dismissed this. The Court held that the car had
been so constructed and designed that it could not be said that “its” ordinary and general purpose
was propulsion on a line of communication between two places which would be regarded as a regular
and usual access between places, for use by pedestrians, riders and vehicles.
Mtamane v RAF 2002 (4) SA 599 (N):
The fact that a vehicle is capable of being driven on road not sole criterion for deciding whether vehicle
designed for propulsion on road - vehicle also required to be reasonably suitable for use on road.
Mobile crane falling within definition of “motor vehicle”
RAF v Mbendera and two others [2004] 4 ALL SA 25 (SCA):
The question to be determined in this appeal was whether a Caterpillar 769 truck was a motor
vehicle for the purposes of the RAF Act. According to the manufacturers description the truck was
an off-highway diesel power haul truck designed for use in the mining and construction industry.
It is very large, being 5 metres wide, 4 metres high and weighing in the order of 68 tons. It was too
heavy and too wide for use on typical roads. It is designed for use on specially prepared haul roads
on which it can travel at approximately 75 km/h. There is a large network of such roads, especially for
opencast mines and these roads also carry other vehicle and pedestrian traffic. The truck was fitted
with various safety features indicative of design and suitability for use on roads that carry traffic. It
had direction indicators, rear and side view mirrors, brake lights, reverse lights, parking lights and a
hooter. It was common cause that it was neither designed nor suitable for use on ordinary roads since
it was simply too large.
The Court accepted that it must adopt a common sense approach in determining whether a vehicle is
a motor vehicle for purposes of the Act. That a vehicle is not safe for use on a public road cannot be a
determinative criterion as to whether it is a motor vehicle for the purposes of the Act, since the truck
in question was designed and suitable for use on haul roads and the RAF Act applies throughout the
Republic and not just to vehicles used on public roads. The truck in question looks like a motor vehicle
and its purpose is to travel on roads to haul loads. It is designed and suitable for that purpose and is
therefore a motor vehicle for purposes of the RAF Act.
©LSSA 33
RAF v Vogel 2004 (5) SA 1 (SCA): Held - a mobile Hobart ground power unit providing electric power
to stationary aircraft at airports is not a “motor vehicle”.
RAF v Van Den Berg 2006 (2) SA 250 (SCA): The general use of vehicle is a relevant consideration.
Pneumatic tyre roller qualifying as a “motor vehicle”.
Bell v RAF 2007 (6) SA 48 (SCA): It was decided that a flat-bed transporter was objectively designed
for propulsion on the airport road. It was not the intention of the Legislature to limit “road” to a
“public road”.
Berry and Another v SPE Security Patrol Experts and Another 2011 (4) SA 520 (GNP): An “E-Z-GO
Shuttle 6” golf car that is available in either gas or electric models, has seating for up to 6 adults and
is designed with heavy duty leaf springs and hydraulic shocks for comfort and support, is a motor
vehicle as defined in the RAF Act when an objective “common sense” test is applied.
Van Der Merwe v Padongelukkefonds 2014 JDR 0658 (FB): “Quad bike” (four wheel motorcycle)
driver is jointly the cause of the collision – (RAF therefore admits in this specific case that this specific
make and model of quad must be a motor vehicle for purposes of a claim against the RAF.)
Under the current legislation it may in some cases well be to the advantage of the claimant to prove
that a vehicle is nót a “motor vehicle” for purposes of the RAF Act. The result would be that none of
the restrictions of the RAF Act would apply to the claim, as the claim against the wrongdoer would
be normal delictual common law claim that would include general damages with no prerequisite of
“serious injury” as is the case in the RAF Act. This could for instance be so when the wrongdoer is
wealthy, or had been acting in the course and scope of his duties where the entity that he worked for
at the time can also beheld vicariously liable.
CAUSED BY OR ARISING OUT OF

The phrases “caused by” and “arising out of” overlap but are not synonymous. “Arising out of” is
wider and refers to the case where the injury, though not directly caused by the driving, is causally
linked with the driving. “Caused by” refer to the direct cause of injury.
Cases where it was held that the injuries have arisen out of the driving of a motor vehicle:
Jacobs v Auto Protection 1964 (1) SA 690 (W);
Ngedle v Marine & Trade 1969 (4) SA 19 (W);
General Accident v Xhego 1992 (1) SA 580 (A);
Norris v RAF [2001] 4 ALL SA 321 (A);
Minister of Safety and Security v RAF and Another 2001 (4) SA 979 (N).
Minister of Safety and Security v Road Accident Fund and Another 2001 (4) SA 979 (N): The court
considered the meaning and application of the words ‘caused by or arising out of the driving of a
motor vehicle” as used in s 8(1) (act 84 of 1986).
The facts were briefly that a driver, upon inspecting the fuel tank of his broken down truck parked
on the side of the road allowed diesel to escape onto the road surface. The Plaintiff’s vehicle skidded
on the diesel and collided with another vehicle causing death and injury to the occupants thereof.
Held that the driver of the truck intended to rectify the problem and to continue driving and that the
result was the fuel spillage, which caused the plaintiff’s vehicle to skid, causing the damage.
Further that there was a close enough link between the driving of the broken-down truck and the
death and injuries suffered. Even if driving of the truck was not the direct cause of the death and
injuries sustained, the Court found that they had arisen out of the driving of the truck.
S 40 (act 93 of 1989): the wording in this previous act is the same as that of s 17(1)(b) in the current
act and reads “caused by or arising from the driving.”
Cases where it was held that the injuries have NOT arisen out of the driving of a motor vehicle:
Philander v Alliance Assurance Co Ltd 1963 (1) SA 561 (C);
Pretoria City Council v Auto Protection Co 1963 (3) SA 136 (T);
Wells v Shield Insurance Company 1965 (2) SA 865 (C).
DRIVING
Essentially the ordinary meaning of driving a motor vehicle means the urging and directing of the
course of the vehicle while it is in motion and will by necessity include all other acts reasonably or
necessarily associated therewith, e.g. braking, hooting, etc. (See Petersen v Santam 1961 (1) SA 205
©LSSA 34
(C); B v Road Accident Fund (41110/2013) [2016] ZAGPPHC 543 (8 July 2016).
HB Klopper, Tydskrif vir Hedendaagse Romeins-Hollandse Reg, ‘Accidental starting of a motor vehicle
and section 20(1) of the Road Accident Fund Act of 1996 ‘, August 2009 THRHR 514
“Driving has a circumscribed technical meaning and is constituted by the intentional starting of a
vehicle in order to drive it, setting a vehicle into motion, exercising control over the vehicle while it is in
motion by using its controls including direction indicators and hooter and then bringing such vehicle
to a standstill and all related and required conduct to achieve this ..”
The ordinary meaning is extended by the presumptions in ss 20(1), (2) and (3) of the RAF Act and has
never been amended.
Section 20(1) of the RAF Act - person in control of vehicle is deemed to be the driver if the vehicle is
propelled by mechanical, animal or human power or by gravity.
The above:
i. Envisages a vehicle in motion;
ii. Does not relate to stationery vehicles;
iii. Involves a person steering a defective vehicle, which is being towed;
iv. See Schlebusch v President 1963 (2) PH J 23 (T) and Flynn v Union & National 1974 (4) 283 (NC).
v. Oliphant v Road Accident Fund 2008 4 All SA 239 (SCA).
Section 20(2) of the RAF Act – a person who leaves a vehicle at one place is deemed to be the driver
thereof, if the vehicle moves by gravity to another place – and causes injury whilst so moving and
until it comes to rest at another place.
The above:
i. Envisages a vehicle, which is stationary as well;
ii. See Van der Poel v AA 1980 (3) SA 341 (T);
iii. Churchill v Standard General Insurance Co Ltd 1977 (1) SA 506 (A);
iv. But see the Wells case (supra) and Pretoria City Council v Auto Protection (supra);
v. Envisages the driver of a towing truck being the driver of the towed truck at the same time;
vi. September v RAF 2007 (1) SA 159 (SE).
Section 20(3) of the RAF Act - whenever any motor vehicle has been placed or left at any place it is
presumed, until the contrary is proved, that the vehicle was left there by the owner of the vehicle.
5.4.4 THE DRIVER OF THE VEHICLE MAY HAVE BEEN ANY PERSON WHOSOEVER:
• need not be the owner;
• or with owner’s consent;
• liability is unaffected even if driver was unauthorised or even if he is a thief.
5.4.5 INJURY OR DEATH MUST HAVE BEEN DUE TO THE NEGLIGENCE OR OTHER
UNLAWFUL ACT OF DRIVER, OWNER OR OWNER’S SERVANT IN THE
EXECUTION OF HIS DUTIES
• fault or blame has to be proven on the part of the driver or owner or owner’s servant;
• damages can be caused even if nothing is wrong with the manner in which the vehicle is driven;
• allowing an unskilled person to drive;
• failure to maintain vehicle could result in liability;
• failure to provide adequate fire-fighting equipment: (Ngedle v Marine & Trade Insurance Co Ltd
1969 (4) SA 19 (W)); a bus conductor causes bus to pull away before passenger alights (Pillai and
Another v New India Assurance Co Ltd 1961 (2) SA 70 (N)).
©LSSA 35
Negligence
“The injury or death must be due to the negligence (or other wrongful/ unlawful act.)”
Reasonable man test and forseeability

Negligence is the failure to exercise the degree of care and skill the reasonable man would have exer-
cised in the circumstances. In applying the reasonable man test, it must be determined whether a
reasonable man in the position of a driver:
(a) Would have foreseen the reasonable possibility of his conduct injuring other and causing him a
loss, and;
(b) Would have taken reasonable steps to guard against the occurrence, but;
(c) Failed to do so.
Should all three requirements be met, the insured driver would be negligent.
Reasonable Man
He is said to be the “notional epitome of reasonable prudence”. The reasonable man is a legal fiction
through which the courts make an objective assessment.
Sudden Emergency - RAF v Grobler 2007 (6) SA 230 (SCA):
When a person is confronted with a sudden emergency not of his own doing, it is wrong to examine
meticulously the options taken by him to avoid the accident, in the light of after-acquired knowledge,
and to hold that because he took the wrong option, he was negligent. The test is whether the conduct
of the respondent fell short of what a reasonable person would have done in the same circumstances.
Collision between a motor vehicle and motor cyclist - to avoid a collision, the motor cyclist swerved
to his incorrect lane of travel. If the motor cyclist committed an error of judgement, the question
is whether a reasonable man in the circumstances could have done the same. No contributory
negligence proven on the part of the motor cyclist.
Humphreys v The State (424/12) [2013] ZASCA 20 (22 March 2013): Test for dolus eventualis restated;
only negligence is proven even where there is recklessness in the extreme but where the driver had not
reconciled himself with the occurrence of the collision or the death of his passengers either. In short,
he foresaw the possibility of the collision, but he thought it would not happen; he took a risk which
he thought would not materialise.
Unlawful (wrongful) act

An unlawful (or wrongful) act is an act or omission, other than the actual act of driving, involving the
persons mentioned in Section 17.
The case of Protea Assurance v Matinise 1978 (1) SA 963 (A) is illustrative in this regard. The Court
held that allowing a person who is visibly under the influence of liquor to travel upon a flatbed lorry
with no sides, constitutes negligence on the part of the driver, although no fault could be found with
the manner in which the vehicle was driven at the time, nor was it travelling fast.
OTHER EXAMPLES:
Santam v Kemp 1971 (3) SA 305 (A). Mechanism becoming detached and injuring third party.
Santam British Insurance Company v Mkhize 1965 (1) SA 206 (N). Duty of owner to maintain vehicle
in a reasonable condition
Maatla v Road Accident Fund (11690/11) [2015] ZAGPPHC 129 (6 March 2015). The owner (the driv-
er’s employer), of the motor vehicle knew that the vehicle was not roadworthy as the driver reported it
to him. The RAF must be held liable.
Abrahams v Road Accident Fund (15863/2013) [2016] ZAWCHC 99 (12 August 2016): RAF’s special
pleas dismissed. In a single vehicle collision where a tyre burst, the owner is liable to a sub-contractor
for proper maintenance of vehicle. Owner gave consent to an employee to make use of the employee’s
son’s services to assist with deliveries, using the owner’s vehicle. At the time of the collision the son
was exercising his duties as a sub-contractor for the ultimate benefit and advancement of the busi-
ness of the insured owner.
Mogoelelwa v Road Accident Fund (A332/2013) [2016] ZAGPPHC 455 (26 May 2016). Driver is blinded
by oncoming vehicle’s headlights which were on bright and then collided with a cow and finally with a
tree. Court a quo dismisses the driver’s claim but a full court holds the RAF liable on appeal.
©LSSA 36
5.5 LIABILITY EXCLUDED IN CERTAIN CASES IN CURRENT LEGISLATION
5.5.1 S 19(g): EXCLUDES A CLAIM FOR “SECONDARY” EMOTIONAL SHOCK

SUFFERED BY A PERSON NÓT DIRECTLY INVOLVED IN ACCIDENT
Subsection 19(g) has been added to exclude a claim for emotional shock suffered by a person who saw,
witnessed or heard of or were informed about the injury or death of some other person. This must be
read with section 21(2)(b), that allows the claimant to exercise his right to institute the common law
claim against a wrongdoer for damages sustained as a result of emotional shock injuries.
A third party may never claim compensation in respect of that loss or damage from the owner or
from the person who drove the vehicle, or if that person drove the vehicle as an employee in the perfor-
mance of his or her duties, from his or her employer. The owner or driver may (subject to the excep-
tions in s 21(2) (NOT be sued EVER, under the common law, for any damages, not even for damages
exceeding the reduced damages claimable from the RAF under the current legislation.
The only exception is that the liability of the RAF to pay damages for emotional shock to a person
who either sees, hears or witness injuries/death to some other person has been excluded by the amend-
ment incorporated in Section 19(g). Section 21(2)(b) allows a common law claim for such damages as
awarded in the cases of Bester, v Commercial Union 1973 (1) SA 769 (AD), Barnard v Santam 1999
(1) SA 202 (AD) and RAF v Sauls 2002 (2) SA 55 (SCA).
5.5.2 EXCEPTIONS TO THIS EXCLUSION: S(21)(2) IT DOES NOT APPLY TO “PRIMARY

EMOTIONAL SHOCK” INJURIES.
“Primary” and “secondary” emotional shock injuries
The Act does not refer to emotional shock injuries as “primary” or “secondary” but in cases such as
Swartbooi v Road Accident Fund 2013 (1) SA 30 (WCC) a distinction is made between a “primary
victim” who in this case was directly involved in the collision, suffered injuries and died as a result,
and a “secondary victim” who was not directly involved in the collision, but then suffers a resulting
detectable psychiatric injury where a person close to him or her dies as a result of an accident.
If a “primary” victim is injured, survives and suffers inter alia from an emotional shock injury,
such an injury is referred to as a “primary” emotional shock injury. A “secondary” emotional shock
injury will be suffered by “…a person, other than a third party, when that person witnessed or observed
or was informed of the bodily injury or the death of another person as a result of the driving of a motor
vehicle.” as set out in s 21(2)(b).
Fourie and Another v Road Accident Fund 2014 (2) SA 88 (GNP): The exclusion in section 19(g) of
an emotional shock claim against the Road Accident Fund is not applicable when the claimant was
directly involved in the accident. The exclusion of liability for ‘secondary emotional shock’ i.e. shock
suffered by a person ‘who witnessed or observed or was informed of the bodily injury or the death of
another person as a result of the driving of a motor vehicle’ is aimed at persons not directly involved
in accident in question. It is not applicable to persons who were themselves injured in accident.The
purpose of this exclusion is to bar claims for ‘secondary’ emotional shock, i.e. by persons who were
not injured in the accident, and not by persons who were directly involved and injured in the accident.
Accordingly the exclusion would not apply where the plaintiffs were spouses injured in an accident
in which two of their children were killed, for in such a case it would be impossible to distinguish the
psychological trauma and shock resulting from the accident itself from the emotional shock induced
by the deaths of the children.
5.5.3 LIABILITY EXCLUDED WHERE WRONGDOER WOULD NOT HAVE BEEN LIABLE
Section 19(a) “for which neither the driver nor the owner of the vehicle concerned would have
been liable but for section 21”
See: Mphosi v Central Board for Co-Operative Insurance 1974 (4) SA 633 (A).
©LSSA 37
The RAF steps into the shoes of the wrongdoer. If the wrongdoer is not liable then the RAF also does
not incur liability.
In RAF v Monjane [2007] 4 All SA 987 (SCA) the was RAF held not to be liable for damages suffered
by the plaintiff passenger in the vehicle driven by his employer, whose negligence was the sole cause
of the collision, based on the provisions of Section 19(a) of the RAF Act read with Section 35(1) of
the COID Act.
Dhladhla v Road Accident Fund (2013/09477) [2014] ZAGPJHC 212 (5 September 2014): the
Monjane principle applied.
5.5.4 ONLY CERTAIN PERSONS ARE ALLOWED TO ASSIST WITH THE CLAIM
Section 19(c) if the claim concerned has not been instituted or prosecuted by the third party or on
behalf of the third party by:
(i) any person entitled to practice as an attorney within the Republic; or
(ii) any person who is in the service, or who is a representative of the state or government or a provin-
cial, territorial or local authority
A third party may prosecute his claim personally. An attorney may assist a third party.
5.5.5 MANDATE: AGREEMENT WITH NON-ATTORNEY TO ASSIST WITH THE CLAIM:

LIABILTY EXCLUDED
Section 19(d) where the third party has entered into an agreement with any person other than an
attorney or a state employee in accordance with which the claimant has undertaken to pay to such
person after settlement of the claim a portion of the compensation of the claim or any amount in
respect of an investigation or of a service rendered in respect of the handling of the claim otherwise
than an instruction from the attorney or a state employee.
• Be careful of using touts/assessors/consultants who sell claims to attorneys. Often these claims
are ready for lodgement when the attorney becomes involved in the matter.
• Touting is against the rules of the Law Societies. See Law Society v Sonntag 2012 (1) SA 372
(SCA) where the attorney was struck off the roll for inter alia touting and sharing of fees with
non-attorneys.
• Certain of these “assessors” want a percentage of the capital of the claim. An attorney who agrees
to this is opening himself up to professional negligence claims.
In RAF v Abdool-Carrim 2008 (3) SA 579 (SCA) it was however held that a “supplier” as contem-
plated in Section 17(5) did not have to be assisted by an attorney.
Smith and Another v Road Accident Fund (28469/2015) [2015] ZAGPPHC 822 (8 December 2015).
Recovery of money by a non-attorney on behalf of the claimant in terms of an undertaking issued
under s 17(4)(a) is not a delictual claim but refers to the administrative recovery process after settle-
ment or a court order and is therefore not prohibited by the Act.
5.5.6 REFUSAL / FAILURE TO SUBMIT TO MEDICAL EXAMINATION

Section 19(e) If the third party refuses to subject himself to a medical examination or fails to furnish
the Fund with medical reports at the RAF’s request.
Union and South West Africa Insurance Co. v Fantiso 1981 (3) SA 293 (A). The claimant is entitled
to have his own medical and/or legal representative at the examination.
Feros v Rondalia Assurance Corporation 1970 (4) SA 393 (E);
Goldberg v Union and South West Africa Insurance Co. Ltd 1980 (1) SA 160 (E).
©LSSA 38
5.5.7 NON-DISCLOSURE OF EVIDENCE TO THE RAF

Section 19(f) If the third party refuses to submit an affidavit of how the accident happened or fails
to furnish the Fund with all statements and documents relating to the accident or fails to furnish
in writing such further particulars as the Fund may require. Not only is the claim excluded, but if
the third party’s affidavit is not submitted to the RAF before the prescription period, the claim will
become prescribed as well.
Moskovits v Commercial Union Assurance Co. of S.A. Ltd 1992 (4) SA 192 (W);
President Versekeringsmaatskappy Bpk v Lategan 1986 (3) SA 692 (A). If the RAF wants to avail
itself of any exemption from liability then it bears the onus of proof.
Springbok Timber and Hardware Co (Pty) Ltd v National Employer Mutual & General Insurance
Co. Ltd 1970 (1) SA 346 (A). Always act ethically in terms of the Law Society’s Rules. If a plaintiff
asks you to lie in his claim rather advise him to get another attorney.
5.6 RIGHT OF RECOURSE
5.6.1 SECTION 22
Submission of information to Fund . . . and third party
“(1)(a) When as a result of the driving of a motor vehicle, any person other than the driver of that motor
has been killed or injured, the owner and the driver, if the driver is not the owner, of the motor vehicle
shall, if reasonably possible within 14 days after the occurrence, furnish the Fund on the prescribed
form with particulars of the occurrence together with the prescribed statements, and the Fund shall
furnish such information to the agent who in terms of section 8 is responsible for any claim arising
from the occurrence.”
This section requires the owner and the driver of a motor vehicle involved in an accident where
personal injury or death has taken place to, if reasonably possible, within 14 days after the accident
to furnish the Fund on the prescribed form (Form 3) with details of the occurrence and also to furnish
statements as requested irrespective of who is to blame.
The RAF must also furnish the third party with copies of information and statements
(2) The Fund shall within a reasonable period after the third party has complied with the requirements
contemplated in section 19( f)(i) furnish the third party or his or her agent with a copy of the informa-
tion and statements which the owner or driver furnished in terms of subsection (1), together with all
statements which were or are obtained from witnesses to the accident.”
Statements obtained by the RAF after the commencement of litigation are privileged. See Tshikomba
v Mutual & Federal 1996 (3) SA 936 (A).
5.6.2 SECTION 25
Right of recourse of the RAF
Where a driver was under the influence of intoxicating liquor or drugs to such a degree that his or
her condition was the sole cause of the accident or the driver did not have a valid driver’s licence and
some other person suffers bodily injuries as a result of the negligence of the driver, the RAF is obliged
to compensate the victim subject to the provisions of Section 17(1). The RAF will be entitled without
taking cession of the right of action, to recover from the driver. Similarly where the owner allows a
person to drive knowing that the person is under the influence of intoxicating liquor or does not have
a proper driver’s licence, the RAF will have to pay out the victim but will be entitled to recover the
amount paid out from the owner.
©LSSA 39
5.7 COSTS: ONLY AFTER ISSUE AND SERVICE OF PROCESS OF THE RAF
There is no provision that upon acceptance of an amount offered as compensation in terms of s 17(1)
a third party is entitled to the costs of institution of the claim.
In order to recover the party and party costs from the RAF a plaintiff will have to institute an
action and prevail upon the Court to exercise its discretion and award costs to the plaintiff. All reason-
able and necessary costs incurred will be allowed. It remains a factual question to be decided by the
Taxing Master. If a matter is settled between the claimant and the RAF before going to trial, the costs
issue must be addressed in the deed of settlement.
In the unreported judgement of Department of Health and Development Limpopo v RAF under
case no. 16177/08 delivered 3 September 2008 by Du Plessis J of the TPD it was decided that as the
“Supplier” was not a “third party”, as envisaged in section 17(1), the supplier plaintiff did not enjoy the
entitlement of a third party to costs in a matter settled before summons in the absence of an agree-
ment between the parties.
In Santam Ltd v Ethwar 1999 (2) SA 244 (SCA) the Court was asked to decide when prescription
starts to run in respect of legal costs. The plaintiff had accepted the offer on capital but costs had not
been agreed. Three years later the plaintiff’s attorneys submitted a bill and placed the matter down
for taxation. The Court held that prescription only started to run once the amount of the legal costs
had been fixed by agreement between the parties or after taxation of the bill in terms of the Prescrip-
tion Act.
Meer v Taxing Master 1967 (4) SA 652 (N);
Hastings v Taxing Master 1962 (3) SA 789 (N);
Mzamo NNO v Taxing Master 1978 (3) SA 238 (E);
Road Accident Fund v Mashala (A474/2012) [2014] ZAGPPHC 554 (25 July 2014): RAF tendered
50% apportionment on merits by way of notice of offer of settlement in terms of Rule 34(1) and Rule
34(5) which was not accepted by plaintiff. The matter proceeded to court on merits. The court orders
50% apportionment and RAF to pay costs. The RAF appeals against the costs order. Appeal granted –
plaintiff to pay costs of action on merits as the notice of offer of settlement in terms of Rule 34(1) and
Rule 34(5), if accepted, it would have ended the merits dispute in the same way the court eventually
ordered it.
5.8 INTEREST / OFFER OF SETTLEMENT SECTION 17(3) OF THE RAF ACT

In terms of section 17(3)a) no interest is payable on the amount of compensation that a Court awards
to a third party unless 14 days have elapsed from the date of the Court Order. If you therefore settle a
claim with the RAF, make sure that it is made an order of court, failing which your client will not be
entitled to any interest if the RAF is slow to pay.
A Court, when making an award of costs, may take into consideration any written offer of settle-
ment, including a written offer without prejudice in the course of settlement negotiations made before
summons was served (17(3)(b).
From 1 March 2016 the prescribed rate of interest in terms of the Prescribed Rate of Interest Act,
55 of 1975 (“PRIA”) is 10,25% per annum: (Government Notice No. 226 of 4 March 2016 in GG 39785).
Tshabalala v President Versekeringsmaatskappy Beperk 1987 (4) SA 72 (T);
Jili v SA Eagle Ins Co Ltd 1995 (3) SA 269 (N).
Section 17(3)(b) relates to the question of whether the plaintiff is entitled to party and party costs if
the Court awards less than an earlier offer by the RAF. The Court may consider such an offer when
adjudication the costs issue. When considering such an earlier offer, the Court would then generally
exercise its discretion where the order in the claim is for an amount equal to or less than the earlier
offer from the RAF. One could expect the court to then only award costs to the Plaintiff up to the date
of that offer, and then order the Plaintiff to pay the Defendant’s (RAF) costs from the date of the offer
to date of the Court’s order.
©LSSA 40
5.9 UNDERTAKINGS FOR PAYMENT OF FUTURE MEDICAL AND HOSPITAL

EXPENSES: SECTION 17(4)(a) AND FOR FUTURE LOSS OF INCOME AND
FUTURE LOSS OF SUPPORT: SECTION 17(4)(b)
THERE ARE TWO TYPES OF UNDERTAKINGS:
5.9.1 UNDERTAKINGS FOR PAYMENT OF FUTURE MEDICAL AND HOSPITAL

EXPENSES SECTION 17(4)(a)
Where a claim for compensation includes a claim for:
• Hospital treatment;
• Nursing home treatment;
• Treatment or rendering of a service;
• The supplying of goods to a Claimant, the Fund is entitled to furnish a Claimant with an under-
taking to compensate him for such costs, after they have been incurred, and on proof thereof.
These undertakings are of unlimited value.
See Marine and Trade v Katz 1979 (4) SA 961 (A).

These provisions only apply if the Fund wishes to evoke them, and the Claimant cannot insist on such
an undertaking, nor can a Court mero motu, direct same.
See Dladla v Minister of Defence 1988 (3) SA 743 (W): where a Court held that a self- insurer (under
the 1972 Act) is entitled to elect to pay instalments by way of such an undertaking.
• can be used at the election of the defendant to pay for future medical expenses;
• the liability for the future medical expense must have been incurred by the Third Party, and only
then will the RAF effect payment or the RAF must be approached to guarantee payment to the
supplier of service;
• future medical treatment must be fair, reasonable and necessary and must be rendered as a
sequelae of the injuries sustained in the accident;
• a refund will be in the amount as paid for when the treatment is given.
Labuschagne v Road Accident Fund (39872/2012) [2014] ZAGPPHC 271 (15 May 2014):
In terms of a report of an occupational therapist, which formed part of the record in the main case,
it had been recommended that the plaintiff attend Pilates training sessions using a rehabilitative
approach. A s 17(4)(a) undertaking was issued to the plaintiff by the RAF for “the costs of the future
accommodation of any person in a hospital or nursing home or treatment of or rendering of a service
or supplying of goods to him or her,”
Consequent to the said undertaking and the recommendation of the occupational therapist, the
plaintiff went for and received treatment from Kristen Capazorio, a pilates’ instructor. Capazorio, who
gave evidence on behalf of the plaintiff, is a certified Pilates’ instructor. Her qualifications are: a
degree in BA in Human Movement and BASI - an international certification in Pilates. She belongs to
an organisation: the South African Pilates Association which certifies people giving pilates.
The RAF refused to pay the plaintiff for the pilates on the basis that Capazorio is not registered
with the Health Professional Council of South Africa (HPCSA). The contention is that if the service
provider does not belong to the HPCSA he or she will not be able to do a proper diagnosis and as such
the service rendered is not covered by the Act.
Kubishi J finds that that the scope of ‘services to be provided’ in terms of s 17(4)(a) of the Act is
wide enough to include the services of the Pilates’ instructor who rendered the services required by
the plaintiff.
Can the RAF apportion a section 17(4)(a) undertaking? Yes. (Under the MMF Act it was an
“article 43(a)” undertaking).
©LSSA 41
The Appellate Division in Mutual & Federal Insurance Co Ltd v Ndebele 1996 (3) SA 553 (SCA) held
that the Fund was entitled to issue an apportionment Article 43(a) undertaking in terms of the Act.
This must be correct or otherwise the plaintiff could recover more than his common law damages.
In Brink v Guardian Nasionale Versekering Bpk. 1998 (1) SA 178 (OPD) the Court held that the
Article 43(a) undertaking was wide enough to cover the costs of a farm helper to assist the plaintiff
in the future.
This undertaking deals with future medical expenses in whatever form and includes costs of caregivers
or a curator.
The plaintiff’s attorney is only obliged to accept such an undertaking if the wording of the under-
taking is strictly in accordance with the wording of the Act. The undertaking may however contain a
reduced offer in terms of the Apportionment of Damages Act.
The plaintiff is not obliged to accept an undertaking if the undertaking is in the form of a contract
and not worded according to the Act. Here the ordinary rules of contractual liability of consensus
apply. The plaintiff is entitled to have the wording of an undertaking adjudicated upon by the Court
to test its validity and lead expert evidence.
This often happens when the Fund wishes to exclude certain future treatment from the under-
taking.
NB! A Court has no discretion to order an undertaking which differs in content to the one tendered,
and it is not entitled to specify what should be included or provided for in the undertaking.
5.9.2 SECTION 17(4)(b) UNDERTAKING:

• Can be used at the election of the defendant to pay for future loss of earnings;
• In respect of future loss of earnings, payment will be for the amount of the income as lost when
claimed in the future;
• There must be consensus between the parties on the contents of the undertaking, which must
reflect the instalments to be paid by the RAF.
• Apart from the calculation of the periodical payment, the total of the undertaking would usually
have been unlimited, but payments would usually be suspended on the predicted retirement date
of the defendant, or if it was based on the death and loss of support from a deceased breadwinner,
payments to the dependant would cease on the date when the right to be maintained comes to an
end.
Be wary of an offer incorporating a s 17(4)(b) undertaking. This undertaking is to compensate the

plaintiff for future loss of income. The plaintiff’s attorney is never obliged to accept such an under-
taking where there is no agreement on the instalments and it seldom, if ever, works properly in prac-
tice.
In the matter of Motor Vehicle Accidents Fund v Andreano 1993 (3) SA 215 (TPD) the Article 43(b)
undertaking which is equivalent to the current s 17(4)(b) undertaking, is discussed and the Court
states as follows:
“Section 21(1C)(a) of the compulsory Motor Vehicle Insurance Act 56 of 1972 does not require the
trial court, in an action for damages under the Act, to determine the amount of the costs referred to
therein.”
(The reference to Section 21(1C))(a) is of course a reference to an undertaking which is now included
in section 17(4)(a), by way of future medical treatment).
“They are payable after they have been incurred and therefore fixed amounts, at that stage subject
to their being reasonable. In terms of Section 21 (1c)(b) (refers to an Article 43(b)) on the other hand,
the trial court must determine and fix the details about the payment of the instalments in respect
of future loss of income or support for incorporation into the insurers undertaking. An undertaking
tendered by an insurer who does not fix the amount of such instalments but leaves it open for future
determination does not meet the requirements of Section 21(1C)(b) of the Act.”
©LSSA 42
It is therefore essential that the parties either by settlement agrees on the future loss of income alter-
natively must litigate the matter, go to Court and have the Court ascertain what the individual’s future
loss of income will be.
Coetzee v Guardian National Insurance Co. Ltd. 1993 (3) SA 388 (WLD). The head notes of the
Coetzee case summarises the position perfectly: “The Court, in an action for damages in terms of the
Multilateral motor Vehicle Accidents Fund Act 93 of 1989, has no power to order that compensation
in respect of future loss of earnings be paid in instalments determined by the Court in the absence
of an agreement between the parties as to those instalments. The provisions of Article 43(b) of the
Agreement establishing the Multilateral Motor Vehicle Accidents Fund contained in the Schedule of
the Act do not confer such a power on the Court. In the absence of such an agreement as to the instal-
ments, the Court has to make a lump sum award in the traditional common-law form.”
Paterson v RAF 2013 (2) SA 455 (ECP): Section 36 of COIDA cannot be used as a condition in an
undertaking. The court decided that it is clear that at best for the RAF Section 36 above would be
relevant where an employee had concurrent claims for compensation and damages. The trial Court
would then consider compensation already received by the employee from the Compensation Commis-
sioner. The important fact to note is that it is the trial Court that is compelled to have regard to the
compensation already paid and not the employee (applicant). It is thus not necessary for a certificate
which is for the benefit of the patient (applicant) to include a reference to what the trial Court must
consider.
NOTE that under the current legislation only special damages duly limited for medical expenses and
loss of earnings will be recoverable for “non-serious injuries”.
Section 17(4)(a)(ii) gives the RAF the choice to pay either the third party or the provider of the service
or treatment direct. BUT irrespective of whether the RAF elects to pay the third party or the provider
directly the amount will be in accordance with the tariffs for health services provided by public health
establishments contemplated in the National Health Act as stipulated in subsection (4B) of Section 17.
The third party and/or medical aid will be out of pocket for the shortfall.
Section 17(4)(b) of the preceding legislation has for practical purposes proved to be useless because of
the words “by instalments in arrear as agreed upon resulting in a lot of cases having to go to court
due to the parties not being able to agree upon the parameters of calculation. It has been retained and
expanded after the amendments.
The addition of “by way of a lump sum or” to this section relating to an undertaking to pay future
loss of earnings or future loss of support does not seem to be making a meaningful difference in prac-
tice. Section 17(4)(c) of the current legislation limits claims for future loss of earnings or future loss of
support to a proportionate figure based on a maximum annual loss of R160 000. In terms of section
17(4A)(a) the figure of R160 000 is to be adjusted quarterly to counter inflation. It had been increased
on 31/07/2016 to R248 710.00 in GG 40175 at the date of publication of this manual, but it would by
now have been increased even further.
©LSSA 43
The amount of the limitation has increased as follows:
31/07/2008 -- R 160 000.00 31/01/2011 to R 182 857.00 31/10/2013 to R 213 675.00
(as published in the act) 30/04/2011 to R 185 289.00 31/01/2014 to R 215 320.00
31/10/2008 to R 166 667.00 31/07/2011 to R 189 017.00 30/04/2014 to R 219 820.00
31/01/2009 to R 167 071.00 31/10/2011 to R 191 773.00 31/07/2014 to R 224 120.00
30/04/2009 to R 169 078.00 31/01/2012 to R 194 043.00 31/10/2014 to R 227 400.00
31/07/2009 to R 172 806.00 30/04/2012 to R 196 636.00 31/01/2015 to R 227 810.00
31/10/2009 to R 175 887.00 31/07/2012 to R 199 716.00 30/04/2015 to R 228 439.00
31/01/2010 to R 176 535.00 31/10/2012 to R 201 337.00 31/07/2015 to R 234 366.00
30/04/2010 to R 178 642.00 31/01/2013 to R 204 904.00 31/10/2015 to R 237 850.00
31/07/2010 to R 180 750.00 30/04/2013 to R 207 528.00 31/01/2016 to R 238 670.00
31/10/2010 to R 182 047.00 31/07/2013 to R 210 192.00 30/04/2016 to R 244 405.00
31/07/2016 to R 248 710.00
And further after the publication of this manual.
Section 17(4A)(b) provides that the amounts adjusted in terms of subsection 17(4A)(a) shall be
the amounts set out in the last notice published in the Government Gazette immediately prior to
the date on which the cause of action arose.
Jonosky v Road Accident Fund (2010/01220) [2013] ZAGPJHC 149 (14 June 2013): Claassen J decided
that a future loss of earnings calculation must include an annual actuarially projected increase for
inflation to make provision for the future annual “cap” in terms of section 17(4)(c), and that the “cap”
would be the last quarterly increased amount published before the date of the accident. However, the
cases of Sil and essentially Sweatman referred to below overruled this approach.
Sil & others v Road Accident Fund 2013 (3) SA 402 (GSJ) paras 13 to 15, Sutherland J found that the
purpose of the cap is to limit the sum to be paid. It is not intended to interfere in the calculation of the
loss. The artificially set maxima exist to resolve the challenges to the RAF in funding demands made
on it, not to prescribe a new methodology of calculating loss. He too found that contingencies had to
be taken into account in determining the actual loss. In projecting a future actual loss, the exercise
contemplates the chances of not achieving the projected rate of earnings by factoring in predictable
risks. Those risks are expressed as the given contingencies. There is no other place in the calculation
process where, sensibly, the contingencies could be usefully intruded into a calculation of loss, that is
to say the net loss or, more appropriately, the actual loss.
RAF v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015) overruled Jonosky’s case, where it
was ordered that the correct approach is to determine the present value of the actual loss suffered, as
actuarially calculated, taking into account all contingencies, including mortality, and then compare
it with the annual loss (the limit or cap) as determined on the date of the accident. But nowhere does
the Act suggest that the amount in the last notice published before the date of the accident must be
adjusted each year to take into account the ravages of inflation. The quarterly adjustments will take
care of problems with inflation for future claimants, but the limit for a particular claimant’s loss is
set at the date of the accident. A reading of s 17, even having regard to its purpose, does not lend
itself to the interpretation that there is a different cap for each year after the accident. The case of Sil
& others v Road Accident Fund was referred to with approval.
Section 17(4B)(a) – the amounts payable by the RAF, regardless of the actual costs, in respect of a
section 17(4)a) undertaking to pay future expenses, or a suppliers claim against the RAF directly (as
contemplated in section 17(5) or a claim for an interim payment (as contemplated in section 17(6))
are not to exceed a National Health Act tariff to be prescribed after consultation with the Minister of
Health.
On 25 November 2010 the Constitutional Court had no hesitation in finding that the UPFS (“Uniform
Patient Fee Schedule”) tariff was wholly inadequate and unsuited for paying compensation for medical
treatment of road accident victims in the private health care sector. The evidence showed that virtu-
ally no competent medical practitioner in the private sector with the requisite degree of experience
©LSSA 44
would consistently treat victims at UPFS rates. This simply meant that all road accident victims who
cannot afford private medical treatment will have no option but to submit to treatment at public
health establishments. The court was satisfied that the UPFS tariff was incapable of achieving the
purpose which the Minister was supposed to achieve. The court accordingly struck down Regulation
5(1), as being inconsistent with the Constitution, and the Minister would be obliged to make a fresh
determination. The court was not prepared to suspend the order of constitutional invalidity.
Section 17(4B)(b) – the tariff for emergency medical treatment is to be negotiated between the RAF and
the health care providers AND shall be reasonable taking into consideration the cost of the treatment
AND the RAF’s ability to pay. The tariff for emergency medical expenses was first published in GN
R. 711 in Government Gazette nr. 31249 on 21 July 2008 and the latest amendment is found in BN
107 published in Government Gazette 38803 of 22 May 2015. The RAF’s emergency medical tariff is
similar to the National Health Reference Price List.
Clients will often enquire whether they can obtain a cash payment (which is lower) rather
than the undertaking (where the Fund only pays after the liability for the expense has been
incurred). With the section 17(4)(a) undertaking the RAF will not offer a cash payment and the
client has no choice but to accept this undertaking.
With the section 17(4)(b) undertaking the RAF may be willing to negotiate a cash settlement.
In this situation ensure that you have it in writing that client accepted such offer after you
explained the consequences thereof, as you may later be faced with a professional negligence
claim by your client for under settling. Practitioners taking instructions from guardians on
behalf of minors, particularly with head injuries, must exercise the utmost caution. If there
is the slightest doubt obtain medico-legal reports to preclude brain damage or persuade the
guardian that the offer is too low.
It is advisable to apply for the appointment of a curator ad litem if the guardian is not acting
in the minor’s best interests.
5.9.3 INTERIM PAYMENT

Advance payments are still governed by:
• Section 17(6) of the RAF Act
• Rule 34(A) of the High Court Act 59 of 1959
SECTION 17(6)
The Fund may make an advance payment to a Third Party, out of the amount to be awarded to
such a Third Party in respect of:
• Medical Costs;
• Loss of Income;
• Loss of Support.
By virtue of s 17(4)(c) the amount of such award must be based on a proportionate annual loss of
not more than R 160 000 for loss of earnings. This amount is increased quarterly and on 31/07/2016
stands on R 248 710.00
This does not give the Third Party a right to insist upon an interim payment. The provisions of
this section must be read in conjunction with High Court Rule 34(A). This dictates that merits had
to be conceded by the Defendant (RAF) or partly conceded before a court may order such an advance
payment.
Rule 34 A provides that:

• a plaintiff may apply to Court for an interim payment in respect of medical costs and loss of
income;
• the application may only be brought after an Appearance to Defend has been filed;
• the applicant shall file an affidavit mentioning the amount of damages claimed and the grounds
for the application and furnish documentary proof on which the applicant relies;
©LSSA 45
• a court must be satisfied that the defendant has admitted liability in writing or that the plaintiff
has obtained judgement against the defendant for damages still to be determined;
• no order for an interim payment will be made unless “it appears to the Court that the defendant is
insured in respect of the plaintiff’s claim, or that he has the means at his disposal to enable him
to make such a payment”;
• a court may order the defendant to make an interim payment of “such amount it may think just,
which amount shall not exceed a reasonable portion of the damages which in the opinion of the
Court is likely to be recovered by the plaintiff, taking into account any contributory negligence,
set-off or counterclaim”; notwithstanding the refusal of such an Application, further applications
for interim payment can be on good cause shown;
• the fact that such an order has been made may not be pleaded nor may that fact be disclosed to a
trial court at the main hearing of the claim relating to quantum;
• after an interim payment has been ordered, the main action may not be discontinued or with-
drawn, without the consent of the Court.
Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA);
Karpakis v Mutual and Federal 1991 (3) SA 489 (O);
Nel v Federated Insurance Limited 1991 (2) SA 422 (T);
Van Wyk v Santam 1997 (2) SA 544 (O).
In practice, if the Fund refuses to settle the merits formally and refuses to make any interim payment
then the plaintiff must:
• Serve summons in the High Court;
• Apply to separate the issues of liability and quantum in terms of Rule 33 (4);
• Obtain an order in the Plaintiff’s favour on liability;
• Bring a formal application to Court in terms of Rule 34A for an interim payment.
5.10 PROCEDURE TO LODGE A CLAIM

Section 24 in the current legislation requires a RAF 1 form to be lodged for special damages only
and a RAF 4 form, the serious injury assessment report, if the claimant is of the opinion that he/
she will qualify for general damages as well.
COMPENSATION
A claim for compensation must be set out in the prescribed manner on the prescribed Form 1, which
is an annexure to the regulations to the RAF Act.
The medical report which is part of Form 1 must be completed in all its particulars and supporting
vouchers and statements must accompany the claim form.
The medical report section of the claim form should be completed by the medical practitioner (or
superintendent of the provincial hospital) who first treated the deceased or injured person.
Zwane v Commercial Union 1975 (4) SA 492 (WLD);
Shield Insurance v Booysen 1979 (3) SA 953 (AD);
Guardian National Insurance Co v Van der Westhuizen 1990 (2) SA 204 (CPD);
Moskowitz v Commercial Union 1992 (4) SA 192 (WLD);
MMF v Radebe 1996 (2) SA 145 (AD).
Busuku v Road Accident Fund [2016] 3 All SA 498 (ECM). S 24(1) & Regulation 7 does not allow
for RAF1 Form substitution by hospital notes. Regulation 7 (1) read with section 24(1)(a) of the Act
prescribe the submission of the claim form on form RAF 1 which requirement is peremptory — a
medical report on form RAF 1 left blank and incomplete is tantamount to no medical report having
been submitted. The issue of substantial compliance only arises in regard to content of form. It does
not arise and cannot arise in absence of claim form. Held: Submission of a blank medical report on
form RAF1 had no legal effect, resulting in prescription of claim.
©LSSA 46
If the medical practitioner or superintendent concerned fails to complete the medical report on request
and if there is a danger of prescription, then the medical report may be completed by another medical
practitioner who has fully satisfied himself regarding the cause of the death or the nature and treat-
ment of the injuries in respect of which the claim is made.
Where a person is killed outright and dies at the scene of the accident then no medical report needs
to be completed but the inquest record must be attached or in the case of the prosecution of the person
whom allegedly caused the deceased’s death the relevant charge sheet should be attached.
If the deceased dies in hospital or after receiving medical treatment then the Form 1 medical report
must be completed.
The third party has to substantially comply with the requirements of the section in order to affect
service of a valid claim.
Guardian National v Van der Westhuizen 1990 (2) SA 204 (C).

In Nkisimane & Others v Santam Insurance 1978 (2) SA 43 (A) the Court stated that the object of the
relevant section was to provide sufficient information to decide whether to resist or settle the claim
before being sued.
“Substantial compliance” – there only needs to be sufficient information in the claim form,
together with the supplementary documentation lodged with the RAF, for the RAF to realise that the
claimant is seeking compensation. See SA Eagle Ins Co v Pretorius [1998] 1 All SA 131 (A).
A death certificate on its own without the accompanying inquest record or medical report or charge
sheet is not substantial compliance with the requirements.
The Form 1 has to be sent by registered post or delivered by hand to any of the RAF’s offices. Take
note of regulation 6(1) of the RAF regulations, 2008. In effect the regulation dictates that claims under
the current legislation must be lodged at the office of the RAF where the accident took place or where
the third party lives. This regulation was however declared invalid by Acting Judge Fabricius during
the application in Law Society of South Africa and Others v Minister for Transport and Another
(CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400 (CC); 2011 (2) BCLR 150 (CC) (25 November 2010). The
declaration of invalidity was not challenged by the RAF in the Constitutional Court.
The date of posting by registered post is the date of delivery:

Protea Assurance v Soul 1991 (3) SA 43 (E);
Commercial Union Assurance v Clarke 1972 (3) SA 508 (AD).

The Fund is obliged in respect of a claim delivered by hand to acknowledge receipt at the time of
delivery and in writing to acknowledge the date of such receipt. The lodgement of the claim is the
demand which the third party is obliged to make.
The RAF has 120 days from the date of lodgement to investigate the claim. The 120-day period
from lodgement of the claim form is calculated according to the civil method of calculation. The third
party has to wait for the 120-day period to expire before SERVING a summons, unless the RAF repu-
diates the claim earlier.
The civil method of computation of time applies to the RAF Act but the “court day” (excluding
Saturday, Sunday and public holiday) has been introduced in the definitions to the RAF regulations,
2008 and must be applied when calculating the time periods referred to in the said regulations.
Further comments will be made when dealing with prescription of a “regulation” (hit and run) claim.
Regulation 6(2)(a) of the RAF regulations, 2008 purports to give the RAF the right to question a
third party at a place chosen by the RAF at any time after the claim is lodged or to obtain a further
sworn statement from the third party dealing with the circumstances of the occurrence, irrespective
of whether the owner or driver of the offending vehicle has been identified or not.
The “at any time” must be intended to refer to the period before the service of the summons because
of the wording of regulation 6(2)(b) which provides that where a third party is asked to be questioned
or to make a further sworn statement the third party will have to comply prior to the service of the
summons. In effect therefore any request made by the RAF for questioning before the expiry of the 120
days after the lodging the RAF 1 third party claim form, or for that matter arguably before the service
of the summons, will prevent the third party from going ahead with the service of the summons.
©LSSA 47
5.10.2 Section 24(5)
This section provides that a claim shall be deemed to be valid in law in all respects if the Fund does
not within 60 days from date on which a claim was sent by registered post or delivered by hand
objected to the validity thereof.
The mere fact that the RAF objects to a claim does not in itself render the claim invalid. The
claimant will issue summons, and the RAF has to raise non-compliance by way of special plea, which
the Court must adjudicate on. Klopper in “Law of Third Party Compensation” submits that section
24(5) only applies to formal defects referred to in section 24 only and not in any other sections such
as sections19(e) or 19 (f). Section 24 (5) does not apply to non-compliance with regulations.
In Krischke v RAF 2004 (4) SA 358 (W) the attempt to amend the plaintiff’s replication to aver that
because the defendant did not object to the validity in terms of section 24(5) within 60 days it could
not raise prescription, was disallowed.
If the Fund does object to the validity of the claim, then prescription is not interrupted until the
claim’s validity has been corrected or a new substantive lodgement has been effected on the RAF.
5.10.3. SECTION 24(6) - NO SUMMONS BEFORE 120 DAYS HAVE LAPSED

No claim is enforceable by legal proceedings commenced by a summons served on the Fund before the
expiry of a period of 120 days from the date on which the claim was lodged,
and
Before all the requirements of the Fund as set out in Section 19(f) of the RAF Act have been complied
with. However, should the Fund repudiate in writing liability before the expiry of this period, the
summons may be served immediately thereafter.
6. PRESCRIPTION OF CLAIMS
6.1 INTRODUCTION
Remember that a claim for Personal Injuries arising out of a motor vehicle accident, which is the main
topic under consideration, is only one of the types of Personal Injury Claims.
The other main groups of personal injury claims are:
• Assault;
• Claims based on public liability;
• Medical malpractice claims.
It often occurs, when a practitioner is dealing with a motor vehicle accident claim that other claims
may originate from the motor vehicle accident. As an example, one has “A” who is injured in a motor
vehicle accident. “A” is conveyed to a hospital where an operation is performed negligently causing
further harm to the already injured party. If the negligence of the doctor or hospital is clear then it
would be prudent for the practitioner to proceed with action not only against the RAF but also against
the negligent doctor or hospital based on a medical malpractice claim. The RAF is not liable for the
consequences of incorrect medical treatment. The dates of prescription would be different for the
various types of personal injury claims applicable to an injured.
Williams N.O. v Lesotho National Insurance Co (Pty) Ltd 1997 (4) SA 772 (O).
Another example is where your client sustains an injury to his nose and face, the negligent party then
gets out of his vehicle and assaults your client by punching him in the face and breaking his nose
which had not been broken in the motor vehicle accident. The RAF cannot be held liable for all your
client’s damages and you will therefore have to proceed not only with a claim against the RAF but
also against the assaulting party.
Your client who has been injured in a motor vehicle accident is about to be discharged and whilst
walking in the hospital, slips in a puddle of water and once again injures himself. Again, the claim
©LSSA 48
will be against the RAF for injuries sustained in the motor vehicle accident and against the hospital
based on public liability. Remember, the RAF is not always responsible for all your client’s injuries.
You must weigh up the facts and establish against whom the claim lays, if not solely against the RAF.
Prescription is a personal injury plaintiff’s attorney’s worst nightmare. This is usually because
the attorney does not know the provisions relating to prescription and / or does not have a reli-
able diarising system. Most professional negligence claims against the plaintiff’s attorneys who do
personal injury work are as a result of prescribed claims.
Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 541 (1
July 2015). Duty on attorneys to immediately inform client when a claim became prescribed.
Prescription against the negligent attorneys only starts to run once they have informed their
client that the claim against the RAF has become prescribed.
The Attorneys Insurance Indemnity Fund provides a free computerised diary system called
Prescription Alert.
Prescription Alert records particulars of all time- barred matters registered by practitioners in
order to provide them with early notification of the impending approach of prescription dates in
each matter. The details are:
Tel : (012) 622 2830 Fax : (086) 407 9104 website: www.aiif.co.za
THE GOLDEN RULES ARE:

* In non-fatal injury cases the claim arises and prescription starts to run on the date of the
collision.
* In fatal injury cases the claims of the dependants arise on the date the breadwinner dies.
Thomas v Liverpool and London and Glove Insurance Co of S.A. 1968 (4) SA 1419 (C);
Evins v Shield Insurance Co. Ltd 1980 (2) SA 814 (A).
6.2 CLAIMS AGAINST RAF
6.2.1 SECTION 23 OF THE RAF ACT

Deals with prescription of MVA claims.
6.2.2 SECTION 23 - THREE YEARS TO LODGE

Section 23(1) reads as follows:
“Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and
(3), the right to claim compensation under section 17 from the Fund or an agent in respect of loss or
damage arising from the driving of a motor vehicle in the case where the identity of either the driver
or the owner thereof has been established, shall become prescribed upon the expire of a period of
three years from the date upon which the cause of action arose.”
RAF PRESCRIPTION PERIODS ARE NÓT UNCONSTITUTIONAL:
Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) – The Constitutional Court found
that Section 23(1) of the RAF Act is not unconstitutional.
NB! Neither the Prescription Act nor the common law is applicable. The act regulates prescription on
MVA matters to the exclusion of all other rules of prescription.
Terblanche v SA Eagle Insurance Co Ltd. 1983 (2) SA 501 (N);
©LSSA 49
Erasmus v Protea Assuransiemaatskappy Bpk. 1982 (2) SA 64 (N).
Method of Calculation
The 3-year period is calculated in accordance with the ordinary civil method. “The first day is
included and the last day is excluded.”
In terms of the Act, effective lodgement on the Fund occurs if the document is delivered by hand or
sent by registered post. Example: if the accident occurred on the 15th of June 1999, the plaintiff is a
major and the owner and/or driver of the negligent vehicle is identified, then the claim must be lodged
by hand or by registered mail by midnight on the 14th June 2002.
Commercial Union Assurance Company of South Africa Limited v Clark 1972 (3) SA 508 (AD);
Konstantinou v Allianz Insurance Limited & Others 1992 (2) SA 116 (N);
Lucas v Sentraboer 1995 (1) SA 334 (W);
Protea Assurance Company Limited v Soul 1991 (3) SA 43 (E).
Ralph v Road Accident Fund (2014/03112) [2016] ZAGPJHC 94 (5 May 2016). The injured uses the
internal claims settlement process without the assistance of an attorney and is assisted by employees
of the RAF. Plaintiff contacted them telephonically and in person, to no avail. One employee advised
him that the RAF would make an offer to him after he had been examined by the RAF’s nominated
medical doctors. None of this materialised. The RAF however then pleads prescription due to the
RAF1 not being lodged in time. The legal duty created by the RAF themselves by making a representa-
tion that they would take care of the plaintiff’s claim and owed to the plaintiff was not extinguished
by the prescription period provided for in Section 23. Special Plea of prescription dismissed.
6.2.3 SECTION 23(2) - PRESCRIPTION DOES NOT RUN AGAINST

a. A minor
With effect from 1 July 2007, Section 17 of the Children’s Act No 38 of 2005 provides that: “a child
whether male or female becomes a major upon reaching the age of 18 years”. Prescription and locus
standi are affected. There is no reference to the provisions being retrospective and this would be
against the interests of the minor.
Cause of action arising before 1 July 2007

The running of prescription will be suspended and will commence to run from the date on which a
“minor” turns 21.
A discussion on the effect of Section 17 of the Children’s Act No 38 of 2005 the decision of the Court
a quo in MEC for Education KZN v Shange (529/11){2012(5) SA 313 (SCA)(1 June 2012). See also
Shange v MEC for Education Kwa-Zulu Natal (15860/2008){2011} ZAKZDHC 28 (17 June 2011)
which is illustrative.
Cause of action arising after 1 July 2007

In the case of a minor, prescription is interrupted/suspended until the minor becomes a major, in other
words, attains the age of 18. As soon as he becomes 18 years old, prescription starts running against
him and the claimant then has three years in which to lodge the claim against the RAF calculated
from the date of attaining majority. The claimant will have 5 years to issue summons to finally inter-
rupt prescription, calculated from the date on which the claimant attained the age of majority.
However the practitioner must be cautious as there has been a further interpretation suggested
that where the minor was 18 or older on 1 July 2007 prescription of the claim starts to run on 1 July
2007 and the date of the accident is irrelevant.
Normally, a claim for a minor will be brought on behalf of the minor by his guardian, which is the
mother or father in terms of the Children’s Act. Remember that the claim for the minor still consists
of all heads of damage, being past medical expenses, future medical expenses; past loss of income;
©LSSA 50
future loss of income and general damages.

In effect therefore, the minor is assisted by his guardian to claim his future medical expenses,
which he/she will incur, his future loss of income and general damages. The claim for the past medical
expenses is the guardian’s personal claim. The guardian is the responsible person to pay those
expenses on behalf of his child and therefore has the right to claim the amount expended from the
RAF. As the parent is not a minor, the parent’s claim for the past hospital and medical expenses shall
prescribe on the expiry of a period of three years from the date on which the claim arose if the claim
is not lodged and within a period of five years from the date on which the claim arose if summons is
not served.
RAF v Scholtz 2003 (5) SA 362 (SCA): A minor born on 24 March 1976 was injured in an accident on
3 June 1994. The claim was lodged on 29 February 2000 and summons was served on 20 July 2000.
The claim was lodged within 3 years, but it was argued that the 5 year period for the service of the
summons started running from the date of the collision and the claim had prescribed. It was held that
the running of both of the prescriptive periods of 3 years for lodgement and 5 years for service of the
summons are suspended during minority and only commence to run from the age of 21.
The effect of the Children’s Act on locus standi and HIT & RUN claims will be dealt with under the
respective headings.
b. Any person detained as a patient in terms of applicable mental health legislation

Keep in mind that this is applicable until such time as a curator-ad-litem is appointed for the mentally
incapacitated individual. As soon as the curator-ad-litem has been appointed, he steps into the shoes
of the injured party and prescription starts to run on the date of his appointment. Prescription does
not run against permanently unconscious or non-compos mentis individuals. Again, appoint a curator
ad litem and rather do so before the prescription date!
RAF v Mdeyide 2008 (1) SA 535 (CC): section 13(1)(a) of the Prescription Act applying to a person
who is unable to manage his own affairs is similar to the common law and protects persons under
disability from the running of prescription by delaying its completion until at least a year has elapsed
after the disability in question has ceased to exist as provided for in section 13(1)(i). However, there
should have been an application for the appointment of a curator-ad-litem so the matter was referred
back to the High Court for the necessary enquiry to be made under uniform Rule 57.
c. A person under curatorship

This usually relates to individuals to whom a curator bonis has been appointed to look after their
person and property. See Van Rhyn NO v AA Onderlinge Assuransie Assosiasie Bpk 1986 (3) SA 460 (O).
RAF v Smith NO [1998] 4 ALL SA (SCA); 1999 (1) SA 92 (SCA): It was held that prescription was
suspended in terms of the Prescription Act against insane persons, regardless whether they have been
detained as mental patients or not.
Xaba v Road Accident Fund (A844/2014) [2016] ZAGPPHC 320 (13 May 2016): The claim of a major
injured person is declared by the court a quo, as well as a full court on appeal, as having prescribed
despite a curator appointed for the injured almost five years after the date of the collision. The curator
is therefore appointed after the date of prescription as well. The Magistrates’ Court was used to
appoint the curator, and such a court has no jurisdiction in terms of sections 33 read with 46(2)(b)
of the Magistrates’ Courts Act, to make a finding where the status of a person in respect of mental
capacity is sought to be affected. Summons was issued more than seven years after the event. No
proof of insanity that existed before the date of prescription was provided and therefore the claim has
become prescribed.
6.2.4 SECTION 23(3) - FIVE YEARS TO SERVE SUMMONS

This section provides that no valid claim, which has been lodged within three years, shall prescribe
before the expiry of a period of five years from the date on which the claim arose.
©LSSA 51
IN THE CURRENT LEGISLATION REFERENCE IS MADE TO SECTION 17(4)(a) IN ADDITION TO
SECTION 24. IN SO FAR AS A CLAIM CAN BE “LODGED” FOR FUTURE MEDICAL EXPENSES, A
5 YEAR PRECRIPTION PERIOD IS APPLICABLE.
METHOD OF CALCULATION: The 5-year period: ordinary civil method, the first day is included and
the last day is excluded.
TG Manyasha v Minister of Law and Order [1997] 1 ALL SA 729 (E);
Ndlala v Road Accident Fund (34859/2011) [2014] ZAGPPHC 854 (24 October 2014): Where the
RAF itself assists the Plaintiff with the claim and there is no attorney involved, a legal duty of care
rests upon the RAF’s employees to inform the Plaintiff of the fact that summons has to be issued
and served before expiry of the 5-year period. Prescription only commenced to run when the Plaintiff
became aware of the breach of the duty. The RAF’s special plea of prescription is dismissed.
6.3 DEPENDANTS’ CLAIMS

A dependant’s right to claim loss of support from the Fund becomes prescribed upon the expiry of a
period of 3 years from the date on which the breadwinner passed away and 5 years from the date of
death of the breadwinner, subject to s 23(2).
6.4 PRESCRIPTION MUST BE PLEADED

• A court cannot of its own accord take notice of prescription. The defendant must raise it in its plea
usually in the form of a special plea.
• The defendant can raise prescription at any other stage of the proceedings provided the Court
grants leave.
6.5 NO EXTENSION OR CONDONATION OF PRESCRIPTION IS POSSIBLE

Since proclamation 102 of 1991 no condonation or waiver of the statutory right to invoke prescription
is possible or permissible.
Swanepoel v City of Johannesburg City Council; President insurance Co Ltd v Kruger 1994 (3)
SA 789 (A).
6.6 PRESCRIPTION: OTHER FORMS OF PERSONAL INJURY
6.6.1 CLAIMS AGAINST PRIVATE INDIVIDUALS, PRIVATE COMPANIES AND ALL

OTHER NON-STATE OR NON- QUASI-STATE INSTITUTIONS
Here the Prescription Act 68 of 1969, as amended, is applicable and should be applied. Ordinarily, for
delictual claims, summons must be served on the wrongdoer before the expiry of a period of three
years from the date on which the claim arose.
Prescription only starts running when the creditor has knowledge of the identity of the debtor and of
the facts from which the debt arises: Provided that a creditor shall be deemed to have knowledge if he could
have acquired it by exercising reasonable care. In the case of a minor, his claim will become prescribed one
year after the year in which he becomes a major.
Claim against a private individual based on sexual abuse and assault that happened 39 years ago did not
prescribe.
Van Zijl v Hoogenhout [2004] 4 All SA 427 (SCA). In a damages claim based on sexual offences
committed 39 years ago, the plaintiff can’t reasonably have been expected to have had knowledge
of the wrong before she acquired actual knowledge and insight into the fact that the person bearing
responsibility for her being sexually abused and assaulted during her childhood, was not herself but
actually the abuser. Prescription for her claim for damages against the abuser only starts to run at the
date of this realisation. She was therefore not negligent in her delay to institute a claim.
©LSSA 52

Prescription only starts to run when the injured, who was a minor when her mother instructed
the attorney to settle her claim, realises later in her adult life that the claim was settled too low.
Macleod v Kweyiya (365/12) [2013] ZASCA 28. On 30 January 1988, at four years old, the respondent
sustained injuries and was rendered a paraplegic in a motor vehicle accident between two motor
vehicles. In May 1997, the claim was settled on her mother’s instructions by the attorney, and on his
advice, at an amount of R99 500, which when added to the R25 000 amounted to R124 500. At the
time of the settlement the respondent was approximately 13 years old, and almost 14 years old at the
time the accounting was made to her mother. On 29 April 2005, she reached the majority age of 21
years. After a dispute between herself and her mother, she became aware of the terms of the settle-
ment agreement on 19 April 2006. On 8 April 2009, when she was almost 25 years old and 11 years
after the appellant had accounted to her mother, she sued the attorney for negligently, in breach of
contract and duty of care under-settling her claim. The court held that prescription only began to run
on 19 April 2006. The respondent does not need to explain the delays until 18 April 2009, as such
period was within the three-year prescription period that started to run on 19 April 2006.
6.6.3 CLAIMS AGAINST THE STATE OR SEMI-STATE ENTITIES

The plaintiff’s attorney must always be aware that if the plaintiff’s claim lies against any State
body or semi-State body, that there may be an Act which governs the existence of that State body
and which may also affect the period in which the plaintiff must proceed with a claim against the
State institution. In this regard the plaintiff’s attorney should have regard to the Institution Of Legal
Proceedings Against Certain Organs Of State Act 40 of 2002 as amended. Claims against the South
African National Police, the South African National Defence Force and State or Provincial Hospitals
also resort hereunder.
The plaintiff’s attorney should always go and look at the empowering Act, which governs a specific
State institution, e.g. National Roads are looked after by the South African National Roads Agency
which is governed in terms of the South African National Roads Agency Limited And National Roads
Act 1998.
The Admiralty Jurisdiction Regulation Act have certain prescription periods, etc.
Some of the limitation of prescriptions provisions has been considered by the Constitutional Court to
be unconstitutional and in this regard you are referred to the following case law:
Mohlomi v Minister of Defence 1996 (12) BCLR 1559 (CC);
Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573 (CC).
The Mohlomi case was discussed in the January 1997 issue of De Rebus.
In terms of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 the
prescriptive periods against national or provincial departments or municipalities have been extended
to coincide with the provisions of the Prescription Act 68 of 1969.
A SIX MONTHS PERIOD TO GIVE NOTICE TO THE ORGAN OF THE STATE OF THE DELICTUAL
CLAIM
Section 3 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 also
introduced a 6 month notice period from the date on which the debt became due. In such a notice the
claimant must briefly set out-
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.
Should the debtor fail to serve such a notice in accordance with the provisions of the act, the claimant
would first have to obtain condonation from the debtor (the organ of state) failing which the claimant
would have to bring an application to court for condonation of the fact that the notice had been given
late. This period also runs against minors.
In any event the summons would have to be served on the organ of state before the expiry of 3
years.
©LSSA 53
6.7 THE FINALITY OF ABANDONMENT OF PART OF THE CLAIM
• You can abandon a portion of your claim to bring it within the jurisdiction of the Magistrates’
Court.
• Section 38 of the Magistrates’ Court Act makes any abandonment to fall into the Magistrates’
Court jurisdiction final. “Once abandoned always abandoned”. You cannot claim the abandoned
portion in any other Court with jurisdiction. Removing the claim to the High Court in terms of
Section 5(1) will also not help you.
• You can launch a substantive application to set aside the abandonment but you will have to prove
that:
(a) the abandonment was inherently prejudicial; and
(b) that such prejudice arose at the time of the abandonment and not subsequently.
It is especially (b) which will create difficulties for the Plaintiff’s attorney.
In general see White v G.A. Fichardt Ltd. 1926 OPD 181 and Metedad v NEG 1992 (3) SA 538 (W).
• Always remember that where there is an apportionment the amount to be deducted is from the
total claim inclusive of the amount that has been abandoned. E.g. Claim is worth R120 000.
R20 000 is abandoned to bring the action in the Magistrates’ Court. There is a 50% apportionment.
The judgement will be for R60 000 and not R50 000, because the apportionment is applied to the
R120 000.
• Practitioners who do not know the rules of the Magistrates’ and High Court will soon find them-
selves in hot water and face professional negligence claims. Santam v Brown 1973 (2) SA 326 (C).
You have an obligation to advise your client of the costs of litigation. Remember you work on instruc-
tions from your client, so make time to consult with him or her and record your instructions. Attorneys
should always make file notes at the end of telephone conversations and consultations. A prudent
attorney should also ideally confirm the contents of a telephone conversation or consultation in
writing. The advantage of file notes is that it provide a good record when billing a client for fees. An
added advantage is that in one’s absence, any colleague can deal with the matter. File notes also
serve as a proof of mandate when there is a dispute. (Risk Alert, 2/2002)
Did you know that the minor’s right to claim against the Fund where the motor vehicle causing
the loss is identified only prescribes three years after the minor becomes a major for the purpose of
lodging the claim and five years after he becomes a major to serve the summons?
6.8 IMPACT OF CURRENT LEGISLATION - SERIOUS INJURY AND AMA GUIDES /

“MAXIMUM MEDICAL IMPROVEMENT (MMI)”
In order to prevent a claim from prescribing the RAF 1 Third Party Claim Form together with the
medical report prescribed in Section 24(2)(a) has to be lodged with the RAF within 3 years, or within 2
years for claims made under Section 17(1)(a) and (b) respectively. (the “Hit-and-Run” claims). However,
following on the proviso to Section 17(1) regarding the necessity of having a serious injury to recover
damages from the RAF for non-pecuniary loss, Regulation 3(1)(a) of the Regulations requires the
third party claiming non-pecuniary loss (general damages) to be assessed by a medical practitioner.
Regulation 3(1)(b) stipulates that the medical practitioner has to use the AMA Guides (6th edition) to
assess the degree of impairment. In terms of Regulation 3(3)(a) the medical practitioner who does the
assessment must complete the RAF 4 Serious Assessment Report Form.
However, under Regulation 3(3)(b)(i) the RAF 4 must, in effect, be submitted before the prescription
deadline for the ordinary lodgement of the claim has passed. BUT, Regulation 3(3)(b)(ii) provides that
where “maximal medical improvement” AND where the claims are to prescribe before “such improve-
ment is reached” the claimant must undergo an assessment AND lodge the claim AND the RAF 4
before the expiry of the “relevant” period. The sub regulation should be interpreted to mean that even
if the contemplated time frame to properly apply the “maximal medical improvement” criteria has
not been reached, a third party should ensure that the RAF 1 with the prescribed medical report and
©LSSA 54
the RAF 4 are lodged timeously to interrupt prescription. In the Glossary of the AMA Guides at page
612 Maximum Medical Improvement is defined as “the point at which a condition has stabilized and
is unlikely to change (improve or worsen) substantially in the next year with or without treatment.”
Note that Regulation 3(3)(b)(ii) refers to “maximal” medical treatment but that the word “maximal”
is synonymous to “maximum”.
QUESTION – how does the definition of “day” in the 2008 Regulations affect the “2 year”
prescription period?
6.9 WHEN TO SUBMIT THE RAF 4: Van Zyl v Road Accident Fund (34299/2009)
[2012] ZAGPJHC 118 (11 June 2012)
The plaintiff was injured in a MVA on 2 August 2008. The period of three years specified for lodgement
of a claim expired on 1 August 2011. The plaintiff’s claim was lodged on 8 January 2009. However the
RAF 4 form was only served on 6 February 2012 (according to para [2] in the judgement.) However,
paragraphs [19] and [79] refers to the date when the RAF4 was delivered to the RAF as 12 February
2012. It does not make a difference to the outcome though.
The defendant filed a special plea which states: ‘[t]he RAF 4 form may be submitted after the
submission of the claim but before the expiry of the periods for lodgement of the claim as prescribed
in the RAF Act’ and that the plaintiff’s claim for general damages ‘prescribed on 1 August due to the
fact that the RAF 4 was not submitted within 3 years from date of accident.
The question before the court was whether or not the claim lodged on 8 January 2009 constitutes a
claim in respect of general damages or does such claim only arise once the ‘serious injury assessment
report’ has been lodged. The defendant argues that, without submission of ‘a serious injury assess-
ment report’, no claim in respect of non-patrimonial loss can or does exist.
Satchwell J held that the claim envisaged by the Act is neither correspondent with nor one and
the same as the serious injury assessment report. They are two documents prepared for different
purposes. The claim notifies the RAF of the identity of the claimant, the motor vehicle accident, the
identification of the insured motor vehicle, the injuries and the loss caused thereby and the compu-
tation of the compensation claimed. The report provides support in substantiation of the claim, it is
evidence of the claim, it is not the claim itself.
The Judge further found that s 23 in the Act deals with prescription, and the Regulations merely
repeats it. Regulation 3 also does not deal with prescription either.
The RAF started taking this judgement on appeal to the Supreme Court of Appeal, but eventually
abandoned the appeal.
It follows that the claimant may lodge the RAF4 serious injury assessment report at any time after
MMI within the five year period, and that it does nót have to be the be lodged together with the RAF1
claim form before the expiry of the initial three year, (or in the case of a Hit-and-Run claim, the two
year period).
7. HIT-AND-RUN CLAIMS – THE REGULATIONS
7.1 INTRODUCTION
Provision is made for the RAF to handle those claims, which arise from the driving of a motor vehicle,
where the identities of neither the owner nor the driver can be established. Hit-and-run claims are
dealt with in terms of S17(1)(b) read together with Regulation 2 which regulates prescription for these
claims.
The wording is specific and requires that neither the identity of the owner nor the driver can be
established. It often occurs that the plaintiff attorney will be given a registration number by witnesses
and/or the plaintiff himself. The attorney should perform a licence check for a duplicate registration
document from the relevant licensing authority to establish whether the identity of the owner can be
established.
©LSSA 55
Remember that purely to identify the registration number of the vehicle does not classify the
vehicle as being identified. The majority decision in the matter of S.A. Eagle v Pretorius 1998 (2)
SA 656 (SCA) decided that the identification of the owner was only an aspect of compliance with
the procedural requirements for claiming compensation. Thus, if the Plaintiff supplied a registration
number then the claimant had identified the owner or the driver. It will always be a factual question
whether the owner or the driver has been identified. The claim will become prescribed and you may
face a claim for professional negligence.
7.2 PRESCRIPTION
Prescription with regards to hit-and-run claims differs from those claims where the owner and/or the
the RAF within a period of two years from the date the cause of action arose, irrespective of whether
the claimant is a minor, under curatorship or detained in terms of health legislation in respect of
claims arising from 1 May 1997.
Mahambo v RAF 2005 (6) SA 475 (T): Regulation 2(3) is not unconstitutional. (The 2-year prescrip-
tion period for hit-and-run claims is now contained in Regulation 2(1) and (2) after the amendments
of 1 August 2008.)
Geldenhuys & Joubert v Van Wyk and another; Van Wyk v Geldenhuys & Joubert and another
2005 (2) SA 512 (SCA).
Padongelukkefonds v Prinsloo 1999 (3) SA 565 (SCA);
Moloi & Others v RAF 2001 (3) SA 546 (SCA);
But Mbatha v MMF [1997] (2) ALL SA 483 (A): regulation of 2 years prescription period for adult is
intra vires;
Jethro N.O v Road Accident Fund (10534-2006) [2015] ZAWCHC 101 (29 July 2015). An injured in
a persistent vegetative state who was a passenger in a motor vehicle involved in a collision on 20
February 1994 with an unidentified motor vehicle. The Multilateral Motor Vehicle Accident Fund Act
93 of 1989 was applicable to the claim.
- The driver of the vehicle in which the injured was conveyed was negligent – a R25000 limited
claim settlement as a result of the negligence of the driver of the vehicle in which the injured was
conveyed was accepted by the curator ad litem on behalf of the injured. A claim was instituted
against the erstwhile attorneys (Schreuders Attorneys) based on professional negligence for not
pursuing the “unidentified” claim. This claim was settled after a court found the attorneys had
indeed been negligent for not instituting the claim against the RAF.
- Amongst other issues the following were decided:
- The plaintiff (the initial curator ad litem) who settled the limited claim against the RAF was not
clothed with any authority to deal with the unlimited claim against the defendant. His signature of
the discharge form on the settlement of the limited claim against the RAF does not have the effect
of precluding the plaintiff from succeeding in the present action;
- Failure to lodge the unlimited claim within the two-year period with the MMF (later succeeded by
the RAF) as prescribed by regulation 3(2): In Moloi and Others v Road Accident Fund 2001 (3) SA
546 (SCA) the Supreme Court of Appeal considered regulation 3(2)(a) in light of ss 13 and 16 of
the Prescription Act. It held at paras [14] – [17] that the regulation was invalid as being contrary
to s 16 of that Act. [51] Although the court dealt specifically with the position of a claimant who
had been a minor at the date of a collision, the ratio applies equally to the patient, being a person
‘under curatorship or … prevented by superior force … from interrupting the running of prescrip-
tion ….’ as envisaged by s 13(1)(a) and she is thus in the same position as a minor. Given the
assumption that, for purposes of these proceedings, the patient remains in a permanent vegetative
state, she therefore similarly enjoys the protection afforded by Moloi and completion of the statu-
tory prescriptive period remains delayed.
- The injured’s mother admitted in an affidavit dated 24 April 2003 that the claim had prescribed,
©LSSA 56
but an incorrect concession of law made by a party’s legal representative is not binding on the
party concerned. A concession which affects the patient, made by a person without any authority
to bind her (the patient’s mother) has no effect.
- The patient’s mother (as the applicant in the application for the plaintiff’s appointment as curator
ad litem for this purpose, or in her personal capacity or in her capacity as curator bonis) never had
the authority to waive or abandon the injured’s claim for general damages against the RAF, which
is part of her present unlimited claim, by instituting the action against Schreuders Attorneys
.- The current plaintiff (the current curator ad litem Jethro) was not clothed with any authority to
deal with the unlimited claim against the defendant until, at the earliest 22 February 2006, when
his powers were extended accordingly by the order made on that date. Furthermore, since that
date, the steps that were taken against the defendant rather evidence conduct inconsistent with a
waiver or abandonment of the unlimited claim against it. The settlement of the action against the
Attorneys on 29 June 2011 post-dated litis contestatio in the present action (the plaintiff’s repli-
cation to the defendant’s special plea was filed on 17 August 2007) and was concluded without
admission of liability.
- The defendant was not a party to this settlement, and there is insufficient information before the
court as to the circumstances in which it was concluded. The Judge’s view is that it would also
be going too far to find that settlement of the Schreuders’ case put paid to the plaintiff’s general
damages claim (or indeed the unlimited claim) against the defendant. Accordingly this issue is
determined in the plaintiff’s favour.
- The curator ad litem never had authority in terms of the court order to pursue the “unidentified”
(“hit-and-run”) claim against the RAF before settling the “limited passenger’s claim”, the injured
may now claim unlimited damages and general damages from the RAF based on the negligence of
the “unidentified” (“hit-and-run”) driver from the RAF.
NOTE: MAKE SURE THE CLAIM IS LODGED IN TIME: “HIT-AND-RUN” CLAIM CAN BECOME
“IDENTIFIED”
Regardless of the fact that it is not a requirement to take steps to try and ascertain the identity of
a diver or owner in “hit-and-run” claims, the plaintiff’s attorney must still try to identify either the
owner or the driver. After doing a registration search that the vehicle to which the registration number
belongs is clearly not in accordance with the description given by the plaintiff then the attorney
should still consider the claim to be dealt with as a hit-and-run. Remember one can always later
consider the vehicle to be identified but if you do not lodge a valid claim on the RAF within a period
of two years from the date the cause of action arose then your client’s claim has become prescribed.
7.3 QUESTIONING / SWORN STATEMENT

Regulation 6(2) entitles the RAF to question the third party or obtain a further sworn statement
between the time the claim is lodged and the summons is served for unidentified and identified
claims. If the RAF elects to invoke its rights the summons cannot be served until the third party has
complied.
7.4 IDENTIFIED CLAIM BECOMES A HIT-AND- RUN CLAIM

It does occur that an identified claim can become a hit-and-run claim. Where a claim has been lodged
as an identified claim, and it transpires that identity of the owner and/or driver has not been estab-
lished it would not be necessary for the claimant to re-lodge the claim. This is because the RAF is
empowered to deal with identified as well as unidentified claims. Although the RAF will proceed to
deal with the claim, it will now do so in terms of the provisions governing hit-and-run claims. If the
plaintiff’s attorney therefore lodged the claim after two years from the date of cause of action, then
the claim would ex post facto have prescribed. It is therefore important that the plaintiff’s attorney at
an early stage identifies the risk of an identified claim becoming unidentified and ensures that the
claim is lodged timeously. This will be a factual question after investigating the merits.
©LSSA 57
PITHEY v ROAD ACCIDENT FUND 2014 (4) SA 112 (SCA):
Pithey indicated in her claim form — submitted for compensation to the Road Accident Fund that
she was advancing a claim in terms of s 17(1)(a) (identified vehicle) whereas it was evident from her
supplementary documentation that it was, in fact, a claim in terms of s 17(1)(b) (unidentified vehicle)
of the Act. The Fund repudiated liability, rejecting the claim as invalid. In an action for damages, the
high court agreed with the Fund— the full bench upholding this judgement on appeal. In a further
appeal to the Supreme Court of Appeal.
Held: While there was a fundamental distinction between a claim under s 17(1)(a) and one under
s 17(1)(b), it could not be taken to mean that, even when the Fund was in possession of information
which a claimant was statutorily obliged to supply, and which, when read in tandem with the claim
form, which in the circumstances of the case the claimant clearly intended, revealed that the claim
really related to an unidentified vehicle, it was entitled to repudiate the claim on the basis that
no valid claim had been made. Nor ought the Fund to benefit from its own failure to clarify, with
minimal time, effort and expense, whatever confusion the claim form and attached documentation
had revealed. It was not a case where no information had been supplied to the Fund in relation to the
claim in terms of s 17(1)(b). At worst she had supplied conflicting information which could have been
undone with relative ease. Appeal upheld with costs.
NOTE: This claim arose on 29 November 2004 and in terms of the preceding legislation’s claim
Form 1 the claimant had to indicate whether it was a 17(1)(a) (identified vehicle) claim or a claim in
terms of s 17(1)(b) (unidentified vehicle). The current legislation’s claim form does not require this
distinction to be drawn on the RAF 1. The case however still illustrates that the claimant must make
sure that all possible negligent parties, be they drivers and or owners, must be referred to in the
supporting affidavits. It is prudent to indicate in the covering letter and the affidavits that the claim
is lodged based on the fault of such identified, alternatively unidentified driver or owner. Should there
be a possible unidentified driver or owner involved, the claim has to be lodged before the expiry of 2
years after it arose in order to prevent the hit-and-run claim to become prescribed.
7.5 HIT-AND-RUN CLAIMS BECOME AN IDENTIFIED CLAIM

It is also possible that a hit-and-run claim can become an identified claim and this usually happens
in circumstances where the RAF appoints assessors to investigate the merits. Often the assessor will
find the negligent party and the claim will simply proceed as though the driver or owner has been
identified from the start. In SA Eagle v Pretorius [1998] 1 ALL SA 131 (A) the Court found that where
a claimant had submitted a registration number of a vehicle but had not submitted the name of either
the owner or driver the plaintiff had complied with the requirements of the Act and had identified the
owner or driver. The Court therefore took the view that substantial compliance with the provisions of
the Act had been met.
Summons may not be served on the Fund before 120 days have expired calculated from the date
of despatch by registered post (the date stamp on the registered post slip is the date of lodging), or
delivery by hand of the claim to the Fund, unless the Fund has repudiated the claim (Section 24(6)(a)).
The plaintiff’s attorney must then serve a summons on the RAF within a period of 5 years from the
date the cause of action arose to prevent final prescription of the plaintiff’s claim. Remember that no
one is excluded from the prescription periods and the RAF has no inherent power to grant condona-
tion for any late lodgement of the claim form or late service of the summons. If you therefore do not
comply with the time periods, your client’s claim will become finally prescribed and once again, you,
as plaintiff’s attorney, can be held liable on the basis of professional negligence.
7.6 LODGEMENT OF THE RAF4 “SERIOUS INJURY ASSESSMENT REPORT” FORM

The RAF4 “Serious injury assessment report” form must in the case of unidentified claims, be lodged with
the RAF within 5 years from the date of accident. Although regulation 3(3)(b)(i) reads that the RAF 4 must
be submitted before the prescription deadline for the ordinary lodgement of the claim. The position was
clarified Van Zyl v Road Accident Fund (34299/2009) [2012] ZAGPJHC 118 (11 June 2012) as explained
in 4.9 above. The RAF4 does not have to be submitted before the prescription date for lodging the claim
with the RAF but must be submitted before expiry of the date when summons must be served on the RAF.
Regulation 3(3)(b)(i) also reads that it may be submitted separately from the RAF1 claim form.
©LSSA 58
7.7 HIT-AND-RUN CHECKLIST

Is the matter a hit-and-run claim or not, i.e. has the owner or the driver been identified? If neither the
owner nor the driver can be identified the claim falls to be dealt with as a hit and run claim in terms
of Sections 17(1)(b) and 26 read with the Regulations.
• Prescription: 2 years to lodge for all claims in terms of Regulation 2(1), with no suspension for
legal incapacity- Regulation 2(2), (such as minority), from the date on which the cause of action
arises and summons must be served within 5 years from the date the cause of action arises.
• Photographs of the scene and sketch plan must be drafted by the plaintiff, alternatively, an
assessor who conducts an assessment at the scene with the plaintiff, the plaintiff pointing out the
important facts.
• Hospital records and ambulance records should be submitted to the RAF.
• Information on the police docket must be submitted.
• All and any witness statements must be submitted.
• The plaintiff’s claim against his short term insurance and their settlement of his claim must be
submitted.
• Consider the necessity of appointing an assessor or an MVA reconstruction expert.
• Set out in affidavit form the steps taken by the plaintiff to identify the owner or the driver.
• Submit a copy of the letter from the police indicating that no docket was opened and no criminal
prosecution is proceeding to the RAF.
• Interrogation to be attended if requested by the RAF.
• Prepare for trial thoroughly.
8. LOCUS STANDI
8.1 INTRODUCTION
Common law and certain statutes which specifically affect a person’s right to claim damages suffered
dictates whether or not the person has locus standi or legal capacity to litigate.
8.2 COMMON LAW

In general terms the test is whether the individual has legal capacity to distinguish between right and
wrong and to be able to act in accordance with that distinction. The individual must have the neces-
sary intellect to understand the litigation process. For this reason minors and mentally handicapped
individuals do not have locus standi and it is for this reason that prescription does not run against
them. The exception in hit and run claims has been legislated to avoid undue prejudice to the RAF.
The general rule is that every natural person with full legal capacity has capacity to litigate.
Persons without full legal capacity need the assistance of someone with authority to litigate on their
behalf. Only the person who suffers the loss has the right to claim and if that person is, for example
a minor, he or she will have to be assisted.
8.3 LEGISLATION
An act of Parliament can strip an individual of locus standi.
8.3.1 MARRIAGE IN COMMUNITY OF PROPERTY

The Matrimonial Property Act No 88 of 1984, which came into force on 1 November 1984 provides:
Under Section 17(1) that a spouse married in community of property shall not, without the written
consent of the other spouse, institute legal proceedings ..except legal proceedings .. for the recovery
of damages other than damages for patrimonial loss, by reason of the commission of a delict against
him;
Under Section 17(2) that a Defendant may not challenge the validity of the proceedings on the
©LSSA 59
ground that no such consent was given, and the only sanction is in respect of costs;
Under Section 15(3) that neither spouse shall, without the consent of the other, receive any money
due to the other spouse, or the joint estate, by way of damages for loss of income as contemplated in
Section 15(3)(b)(1);
S A Mutual Fire v Bali 1970 (2) SA 696 (A).

The marital power of the husband is abolished in terms of Section 11 of that Act;
Section 14 provides that the wife, in a marriage in community of property, is a co- administrator of
the joint estate;
A distinction must be drawn between the locus standi of a woman married in community of prop-
erty and without exclusion of the marital power prior to the commencement of the Matrimonial Prop-
erty Act i.e. prior to 1 November 1984, and that of a woman married in Community of Property after
commencement of the said Act. (Marriages in Community of Property of the New Order).
In summary therefore, the position in regard to marriages in Community of Property under the
Old Order is as follows:
• a wife is entitled to sue in her own name, without the assistance or consent of her husband, for
compensation in respect of personal injury sustained by her;
• the wife can thus sue, unassisted not only for general damages but also for special damages
(See Santam v Roux 1978 (2) SA 856 (A));
• the husband retains his common law power to sue on his wife’s behalf for her general and special
damages;
• He does not require his wife’s consent to do so, although he does need her consent in writing to
receive the compensation once it has been awarded;
• In terms of Section 18(b) of the Matrimonial Property Act, a wife has the capacity to institute
action against her husband for general damages in respect of bodily injuries suffered by her and
attributable either wholly or in part to his fault;
• With regards to special damages against her spouse these are not recoverable in terms of the
Common law and therefore also not recoverable from the RAF.
With regards to marriages in Community of Property under the new Order, the position is as
follows:
• A wife is entitled to sue in her name and without the assistance or consent of her husband for
general damages;
• A wife may sue for special damages but her husband’s consent will be required;
• A husband may sue for his wife’s special damages either as co-administrator of the joint estate or
by virtue of his duty of support but his wife’s consent is required;
• A wife married in Community of Property under the new order also has the capacity to sue her
husband for general damages in respect of bodily injuries suffered by her and attributable to him
by way of his fault, wholly or in part.
8.3.2 WOMAN MARRIED OUT OF COMMUNITY OF PROPERTY

The question as to who has locus standi in a marriage out of community is to be decided according to
who has suffered the damages;
If the wife is injured, then she would claim and sue for general damages and loss of earnings. Her
husband is entitled to claim personally for any damages he has suffered if he has made payment in
terms of his maintenance obligations to his wife, for example, of medical expenses;
If the medical expenses were however paid by the wife, then she will claim those expenses in her
own name. In those rare case where, prior to 1 November 1984, spouses entered into an Ante Nuptial
Contract, excluding community of property and profit and loss, but retaining the husband’s marital
power, then Sections 1 and 2 of the Matrimonial Affairs Act will apply and the wife’s locus standi is
as discussed above.
©LSSA 60
8.3.3 THE BLACK WOMAN

If such a woman was married according to civil rights prior to 2 December 1988 (the date of commence-
ment of the Marriage and Matrimonial Property Law Amendment Act No 3 of 1988), then her marriage
is automatically out of Community of Property with retention of the husband’s marital power.
See Section 22(6) of the Black Administration Act No 38 of 1927 as interpreted by Ex parte Minister
of Native Affairs in Molefe v Molefe 1946 AD 315.
It should be noted that the parties could introduce Community of Property by joint declaration at
any time within one month prior to the marriage ceremony, provided that there was no subsisting
customary union between the husband and another woman (Section 22 (6) read with Section 22 (7)
of Act No 38 of 1927).
To exclude the husband’s marital power, however, the parties would have to enter into an Ante
Nuptial Contract to that effect.
Before 2 December 1988, the abolition of the marital power and the introduction of a system of
concurrent administration of the joint estate in terms of Chapters 2 and 3 (Sections 11 to 17) of the
Matrimonial Property Act, did not apply to marriages between Blacks.
Because the husband retains the marital power over his wife in such a marriage, the wife’s locus
standi is therefore as discussed above. The same applies if the marriage is in Community of Property
by joint declaration of the parties, unless the parties have excluded the husband’s marital power in an
Ante-Nuptial Contract to that effect.
Section 22 (6) of the Black Administration Act and Section 25 (1) of the Matrimonial Property Act were
deleted by the Marriage and Matrimonial Property Law Amendment Act No 3 of 1988. The effect of
this Act is that Black Civil Marriages are placed on the same footing as White, Coloured and Asian
marriages regarding the patrimonial consequences.
A marriage between Black people concluded after 2 December 1988 is therefore automatically in
community of property and Chapters 2 and 3 of the Matrimonial Property Act (which relate to the
abolition of the Marital Power and the Application of Concurrent Powers of Administration apply).
The amending legislation does not operate retrospectively and consequently does not affect Black
Marriages concluded prior to its enactment.
Black people are, however, given the same opportunity afforded to White, Coloured and Asian
people under Sections 21 and 25 of the Matrimonial Property Act, to change the Matrimonial Property
regime applicable to their marriages (in terms of Section 3 and 4 of the amending Act).
According to Section 11 (3) of the Black Administration Act No 38 of 1927, if a Black Woman
is married by customary union, she is regarded as a minor and her customary union husband is
regarded as her guardian.
Tebeila NO v Santam 1991 (2) SA 640 (C).

She therefore had no locus standi to sign the claim form without the assistance of her customary
union husband.
Bolo v Royal Insurance Company 1969 (3) SA 102 (E).

If she does not live with her customary union husband, then she is entitled without his assistance, to
sign the claim form and institute action.
Under the provisions of Section 31 of the Black Amendment Act No 76 of 1963, if a customary union
Black wife has a loss of support claim by virtue of the death of her “husband”, she is entitled in her
personal capacity, and in her representative capacity, to institute action, provided that she has filed a
certificate issued by the Commissioner prior to the commencement of action, wherein the customary
union is confirmed.
Makgae v Sentraboer 1981 (4) SA 239 (T);
Hlela v Commercial Union 1990 (2) SA 503 (N);
©LSSA 61
K v Road Accident Fund (37392/12) [2014] ZAGPPHC 855 (17 October 2014): The applicant bears the
onus of proving that there was a customary marriage entered into between herself and the deceased.
The essential requirements of a valid customary marriage are: (i) consent of the bride; (ii) consent of
the bride’s father or guardian; (iii) payment of lobola; and (iv) the handing over of the bride to the
groom’s family. Payment of lobola is merely one of the essential requirements. However, that alone
would not render a relationship a valid customary marriage in the absence of the other essential
requirements. A portion of the lobola was paid with the intention of the balance to be paid later.
The handing over of the bride ceremony was never held. In view of the fact that one of the essential
requirements for a customary marriage was not conducted, no valid marriage was concluded between
the deceased and the plaintiff. Consequently, the plaintiff is not entitled to any compensation.
8.3.4 RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998

This Act came into operation on 15 November 2000 and ensures that marriages conducted according
to the various norms, customs & usages of the aboriginal people of our country have legal recognition
and have the same legal status as civil marriages contracted in terms of the Marriage Act no 25 of
1961. The customary union wife is no longer regarded a perpetual minor. Her age will be determined
by the Age of Majority Act, 1972. If she is 18 years old she will be a major.
Section 6 provides that the woman to a customary union will have equal status with her husband
and she can therefore enter into contracts and litigate but subject to the matrimonial property system
governing the marriage.
Section 4(3) of the Act provides that an already existing customary marriage not yet registered, has
to be registered within a period of 12 months from the date of commencement of the Act. A customary
union entered into after the commencement of the Act has to be registered within 3 months after
conclusion of the marriage - failure to register it will not affect its validity. It will affect the ability to
prove the marriage.
8.3.5 MINORS
A minor is a person under the age of 18 years. He or she has no locus standi and must be represented
or assisted by his or her legal guardian.
In terms of the Children’s Act 38 of 2005 either the mother or the father is the guardian. If the
father is an unmarried father, he must first acquire full parental responsibilities and rights i.t.o.
section 21 (38/2005).
The guardian must claim in his/her personal capacity all medical expenses in terms of the mainte-
nance obligations to such a minor, during the child’s minority, as a result of the injuries suffered by
the child in a collision.
The guardian claims all other damages in his representative capacity.
Guardian National v Van Gool 1992 (4) SA 61 (A);
Ncubu v NEG 1988 (2) SA 190 (N).
Salumu obo Medi v Road Accident Fund (12895-2014) [2016] ZAGPJHC 150 (13 June 2016). Minor
of 9 years old. Mother is an asylum seeker and child’s surname incorrectly recorded by Home Affairs
on permit. Best evidence that she is the mother is the evidence of the mother. Mother has locus standi
to institute the claim on behalf of her son.
One can sue either (a) in the name of the guardian who will then be cited in a representative capacity
or (b) in the minor’s name (if seven years or older) duly assisted by the guardian.
The minor is the party to the litigation in both cases. The guardian only acts in a representative
capacity. The guardian will not be liable for costs awarded against a minor.
Remember a minor has locus standi if:

• he has been tacitly emancipated;
• is married (Santam v Roux supra);
• has been declared by a court to be emancipated.
©LSSA 62
Where children born out of wedlock are injured, it is the mother who will lodge and institute the
claim – even if she should subsequently marry a man who is not the father of the child. The biological
unmarried father, should he acquire parental responsibilities and rights in terms of section 21 of the
Children’s Act 38 of 2005, may also lodge and institute the claim.
Nokoyo v AA Mutual Insurance Association Ltd 1976 (2) SA 153 (EC).
A stepfather is not obliged to maintain his stepchild and thus cannot act as his guardian - only the
true guardian can assist such a child or claim on his behalf.
An adopted child is regarded as the true child of his adopted parents and either of his adoptive
parents can therefore claim on his behalf.
Under common law the guardianship of an “extramarital” child is vested in the mother. At common
law the natural father of an illegitimate child has no guardianship rights over the child. This has
changed since the biological unmarried father of a minor child can acquire parental responsibilities
and rights in terms of section 21 of the Children’s Act 38 of 2005, and therefore may also lodge and
institute a claim on behalf of a minor.
Section [a38y2005s19] 19 of the Children’s Act 38 of 2005 deals with parental responsibilities and
rights of mothers and states that the biological mother of a child, whether married or unmarried, has
full parental responsibilities and rights in respect of the child. If the biological mother of a child is
an unmarried child who does not have guardianship in respect of the child; and the biological father
of the child does not have guardianship in respect of the child, the guardian of the child’s biological
mother is also the guardian of the child.
PREJUDICIAL SETTLEMENT ON BEHALF OF A MINOR CAN BE RESCINDED.

Set-off not allowed between debt owed to minor and debt by minor’s guardian personally owed
to the minor’s debtor.
Road Accident Fund v Myhill NO. 2013 (5) SA 399 (SCA); [2013] 4 All SA 9 (SCA): Claims on behalf
of two minor children had been settled too low years ago as they were both seriously injured. The
settlements by their mother on their behalf were substantially prejudicial to them and are rescinded
by the court to enable their Curator ad litem to claim proper compensation. In the initial settlements
the RAF also applied a set-off between the amounts settled on behalf of the minors based on a 30%
apportionment of negligence against their mother. The court finds that set-off in a claim against a
debtor on behalf of minors and any amounts owed personally to the debtor by the guardian acting on
the minors’ behalf is not part of our law and is not allowed.
Mothobi and Road Accident Fund and Another (A32/14) [2014] ZAGPPHC 602 (14 August 2014) –
prejudicial settlement by parent when the minor was 16 years old rescinded.
Mphelela obo Z v Road Accident Fund (56873/12) [2014] ZAGPPHC 282 (1 April 2014) - prejudi-
cial settlement concluded and signed by attorney before receiving actuarial report indicating that
damages are much greater, rescinded.
PAYMENT OF DAMAGES IN CLAIM ON BEHALF OF A MINOR MAY HAVE TO BE PAID TO A TRUST

Dube NO v Road Accident Fund 2014 (1) SA 577 (GSJ)
Payment of a minor’s damages on behalf of a minor must serve the best interests of the minor in
relation to the payment and subsequent administration of the funds. If payment should be made to a
trust, court must make an order after seeing the trust deed or a draft instrument, and the order must
prevent amendment thereof. 2014 (1) SA 577 (GSJ)
Although a child’s guardians have the power and the obligation to manage the child’s financial
affairs, a court cannot simply order that substantial funds be paid to a guardian without first inves-
tigating the circumstances under which such funds are likely to be administered. It is the court’s
function, in cases where relatively significant sums of money are awarded to minors, to enquire into
the circumstances relating to the person/s to whom payment is sought to be released for the purpose
of satisfying itself that the order serves the best interests of the minor in relation to the payment and
subsequent administration of the funds. This includes assessing the motivations, qualifications, and
ability of a guardian to properly administer the funds to be paid in the event that it is sought that the
payment be made to such guardian. (Paragraphs [18] – [19] at 581A – D.)
©LSSA 63
If an award of damages to a minor child is to be administered by a trust, an order should not be
made in the absence of the trust instrument itself or a final draft of the proposed instrument. If the
final terms of the trust instrument are not circumscribed by the order, there is scope for subsequent
amendment of the trust instrument by the parties thereto, thereby defeating the object of the order.
The approved trust deed should furthermore provide that the deed may not be amended or added to,
save by way of a further order of court. Any trust instrument executed for the purposes of adminis-
tering a minor’s money should have the features set out in paras [25] – [26] at 582A/B – 583E of this
judgement.
PAYMENT OF DAMAGES FOR A MAJOR WITH NEUROPSYCHOLOGICAL PROBLEMS CAUSED BY

THE ACCIDENT CAN BE PAID INTO A TRUST
Mbewe v Road Accident Fund (2014-00687) [2016] ZAGPJHC 140 (2 June 2016). The RAF is ordered
to pay for creation of trust for an adult plaintiff who has cognitive problems. Even though the crea-
tion of a trust is not addressed in Plaintiff’s Particulars of Claim, the creation of a trust falls under
“Further and-or Alternative Relief” in the prayers.
8.3.6 IS A CLAIM INVALID FOR LACK OF LOCUS STANDI?

The answer is no. Lack of locus standi does not invalidate the claim. The Fund will however refuse to
make payment until locus standi has been established.
8.3.7 HOW TO PROVE A CUSTOMARY UNION

In terms of Section 31 of Black Laws Amendment Act 76 of 1963 a claim for loss of support of a
surviving partner in a black customary union was recognised. One must however prove the existence
of the union by supplying a certificate issued by a Commissioner appointed in terms of Section 2(2) of
the Black Administration Act 38 of 1927. The Commissioner is appointed by the Minister of Regional
and Land Affairs or the Secretary for Plural Relations and Development or the Chief Commissioner.
The best bet is to obtain the certificate from the Department of Home Affairs who has officials
authorised to issue the Section 31 Certificate.
8.3.8 MOTHER’S LOCUS STANDI OF CHILD BORN OUT OF WEDLOCK WITH NO

BIRTH CERTIFICATE
Usually the Fund will accept affidavits from the maternal grandparents and other family members to
the effect that the mother claiming is also the biological mother.
Where an action has been instituted for loss of support by a child born out of wedlock resulting
from the death of the biological father and no birth certificate is available then the Fund will usually
accept affidavits from the maternal and paternal grandparents that the child was the deceased’s
biological child.
8.3.9 A FOSTER PARENT’S LOCUS STANDI

In terms of the Children’s Act 38 of 2005 a foster parent is only awarded parental responsibilities and
rights in respect of a child as ordered by the Children’s Court. The Act further outlines a foster parent’s
powers in Section 188(2).
The foster parent could only have locus standi to claim in his or her own name for loss incurred by
him or her as a result of the execution of the parental responsibilities and rights of the child assigned
to him/her by the Children’s Court (i.e. past hospital and medical expenses). In terms of Section 6(3)
of the Divorce Act 70 van 1979 states that a High Court and Regional Court, when dealing with the
divorce, may deal with guardianship.
Section 24(1) of the Children’s Act: Only a High Court can be approached by another party with
an interest in the care, well-being and development of a child who may apply to the High Court for an
order granting guardianship of the child to the applicant. In the Regional courts, this cannot be done.
The Children’s court may therefore also handle all other aspects, but not guardianship.
©LSSA 64
A foster parent therefore does not have locus standi to claim on behalf of the child. If the natural
parent cannot be found you will have to appoint a curator.
8.3.10 LOCUS STANDI OF A DIVORCED WOMAN WITH A MAINTENANCE ORDER

In terms of common law the reciprocal duty between spouses to maintain which is created by wedlock
ceases on divorce. The logical argument is therefore that when a woman’s ex-husband dies as a result
of a motor vehicle accident she should have no locus standi to claim from the Fund.
The Supreme Court of Appeal has taken a different view. In Santam Limited v Henery 1999 (3)
SA 421 (SCA); [1999] 2 All SA 312 (A), the Court found that the claimant suffered a pure economic loss
and one must look at the boni mores and make a value judgement involving considerations of policy.
The Court found that society demanded that it was in its interest that the claim for loss of support
of a divorced woman should be protected and that there exists no reason why a divorced woman’s
claim must not be entertained and distinguished from the claims of her dependants and hence she
does have a claim for loss of support against the Fund based on the maintenance order in her favour.
An ex-wife with no maintenance order has no locus standi.
8.3.11 LOCUS STANDI OF A PARTNER IN A GAY OR LESBIAN RELATIONSHIP

Langemaat v Minister of Safety and Security and others [1998] 2 ALL SA 259 (T): the Court had to
decide if the partners were dependant on each other. The Court found that a dependant was anyone:
• who relied upon another for maintenance;
• in a relationship that created a duty to support.
The first question is factual. Looking at society and taking into account the development of society
must answer the second question.
The Court found:
• the relationship was serious and was characterised by stability and permanence and no less
deserving of respect and protection than the relationship of a heterosexual married couple;
• the constitution compelled the judiciary to develop the Common law to promote the spirit support
and objects of the Bill of Rights contained in Section 39(2) of the Constitution;
• the parties where dependent on each other.
8.3.12 DOES A SURVIVING SPOUSE’S LOSS OF SUPPORT CLAIM TERMINATE UPON

REMARRIAGE?
Ongevallekommissaris v Santam 1999 (1) SA 251 (SCA). A surviving spouse’s loss of support claim
does not lapse on remarriage. The new marriage only affects the computation of her claim. If her new
husband earns less than the deceased husband she would have a claim for the difference in her loss
of support.
8.3.13 LOSS OF SUPPORT CLAIMS EXTENDS BEYOND CIVIL MARRIAGES
Paixao and Another v Road Accident Fund 2012 (6) SA 377 (SCA); [2012] 4 All SA 262 (SCA). In
a permanent heterosexual life partnership the reciprocal duty of support was established by tacit
agreement, the common law was extended to afford protection to dependants.
Mahapeloa v Road Accident Fund (17212/13) [2014] ZAGPJHC 432 (12 December 2014): The plain-
tiff alleges that she was the deceased’s permanent life partner; that he owed her a legal duty to
support her and that she is, therefore, entitled to lodge a claim against the RAF. Plaintiff relies on
a tacit agreement between herself and the deceased creating a legal obligation between the parties.
The conduct of the parties must be such that it justifies an inference that there was consensus
between them. There are not enough facts to prove the existence of a permanent life partnership.
Claim dismissed.
©LSSA 65
Du Plessis v RAF 2004 (1) SA 359 (SCA): The plaintiff and deceased were partners in a same-sex
union. It was held that the plaintiff was entitled to claim for loss of support and funeral expenses.
They had lived together continuously for 11 years. Exclusion of common law as envisaged in Sections
9 and 10 of the Constitution and it was not reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom as provided for in Section 35 of the Constitu-
tion to distinguish same sex-partners.
Amod and Others v MMF 1999 (4) SA 1319 (SCA): Authority for the recognition of the duty of
support in Muslim Marriages.
Women’s Legal Centre Trust v The President et al (case no 22481/2014) High Court: Western Cape
Division, Cape Town. The Women’s Legal Centre is asking the court to compel government to pass
legislation (the Muslim Marriages Bill) that would give Muslim marriages legal status. The matter is
set down for September 2016 and the outcome would only be known after this manual is published.
Osman v Road Accident Fund (16780/13) [2015] ZAGPPHC 517 (3 July 2015): As in African culture
and tradition there is a moral and social duty in Muslim and Hindu cultures as well, which are family
orientated in the sense of the extended family to look after one’s elders. Elderly parents often reside
with one or other child who supports them and caters for their wellbeing. Old age homes are almost
non-existent in these cultures. The social mores of such societies dictate that parents and the elderly
are cared for and where this is not done there is a social stigma associated with it. There is thus a
duty of support on a (now deceased) child to support his mother who never worked.
8.4 THE INSOLVENT

Under Section 23 (8) of the Insolvency Act No 24 of 1936, an insolvent can claim damages which
he suffered in his name, whether before or after the sequestration of his estate, for defamation and
personal injury.
Santam v Kruger 1978 (3) SA 656 (A).
8.5 THE EXECUTOR

If the deceased was treated at a hospital after an accident and prior to dying as a result of the injuries
sustained, then only the executor of the deceased estate has locus standi to claim the past medical
expenses incurred as well as the funeral expenses.
If the claim was for loss of support and the surviving spouse now dies then the executor of her
estate would continue with the claim and compensation will be awarded to the estate up to the date
of death.
If an individual was claiming special and general damages and then dies one must distinguish the
claim on 2 grounds:
Litis Contestatio reached (close of pleadings)

The special and general damages will be paid to the estate up to date of death.
Litis Contestatio (close of pleadings) not reached

General damages relates to personal suffering. General damages are paid to console and not to resti-
tute. Therefore, no general damages are payable to the estate and only special damages can be recov-
ered.
In both cases above claims for future medical expenses and any personal claim for future loss of
earnings fall away.
8.6 MENTALLY DISTURBED PERSONS

Such a person is unable to appreciate the nature of legal proceedings due to a mental deficit and does
not have locus standi.
A curator ad litem must be appointed to litigate on his or her behalf nomine officio.
©LSSA 66
The person alleging incapacity will have to prove it to rebut the presumption of sanity. If it is
proved then the proceedings are delayed until a curator is appointed.
If a mentally disturbed individual also cannot manage his or her own affairs then a curator bonis
to the individual’s property and person must be appointed.
8.7 DIPLOMATS
In terms of the Diplomatic Immunities and Privileges Act certain individuals are immune from civil
and criminal jurisdiction of South African Courts. But in terms of Section 6(1) of the Act that immu-
nity does not extend to civil actions arising from an accident in the Republic caused by a vehicle,
vessel or aircraft.
NB! Before suing any diplomat do your homework. You can incur criminal liability/ penalties if you
sue a person entitled to immunity (Section 19).
8.8 JUDGES
If you wish to sue a Judge who was driving a motor vehicle either for the material damage or for a
personal injury claim then you must apply for leave from the Senior / Judge President of the division
concerned. The application is informal with notice to the Judge concerned.
9. THE APPORTIONMENT OF DAMAGES ACT 34 OF 1956
9.1 THE MAIN FEATURES OF THE ACT

Section 1(1)(a) of the Apportionment of Damages Act provides that where a claimant suffers damage
which is caused partially by his own fault and partially by the fault of the person from whom he seeks
to claim such damages, the damages recoverable shall be reduced by a Court to such an extent as the
Court may deem just and equitable, having regard to the degree in which the Claimant was at fault in
relation to the damages.
Section 2(1) creates the notion of “joint wrongdoers” and provides that where a plaintiff alleges
that two or more persons are jointly or severally liable in delict to him for the same damages, that
such persons, who are referred to as “joint wrongdoers”, may be sued in the same action. NB: This Act
does not apply to innocent victims such as passengers, dependants, and children who are under
7 years of age (doli incapax).
Section 2(8)(a) of the Act provides that if judgement is given in an action in favour of the plaintiff
against two or more joint wrongdoers, a Court may:
• order that such joint wrongdoers pay the damages awarded jointly and severally, the one paying
the other to be absolved, or
• if it is satisfied that all the joint wrongdoers have been joined in the action, apportion the damages,
and give separate judgements against each of the defendants in proportion to their respective
degrees of fault in relation to the plaintiff’s damages.
Section 2(2), Section 2(4)(b) and Section 2(6)(a) envisages the situation wherein innocent plaintiff “A”
sues one joint wrongdoer “B”, who in turn seeks a contribution under Section 2(6)(a) from the other
wrongdoer, not sued in the action, namely, “C”.
Section 2(6)(a) provides that if judgement is given against one joint wrongdoer for the full amount
of the plaintiff’s damages, the said joint wrongdoer may, if the judgement debt has been paid in full,
recover from any other joint wrongdoer, a contribution, proportionate to such other joint wrongdoer’s
blame, in relation to the damages paid to the plaintiff, subject to the necessary notice being given.
Under Section 2(2), any joint wrongdoer who is sued by a plaintiff may give notice of the action
before close of pleadings, (as between the Plaintiff and the one joint wrongdoer) to any other joint
wrongdoer, not sued in the action, and the latter may thereupon intervene as a defendant in the action.
Section 2(4)(b) provides that failure to give such notice will preclude a wrongdoer sued in an action
©LSSA 67
from instituting proceedings against the wrongdoer not sued, for a contribution, unless the leave of
the Court is obtained.
EXAMPLES: THE APPLICATION OF THE APPORTIONMENT OF DAMAGES ACT AND DUTIES OF

PARTIES INVOLVED:
RAF v Landman 2003 (1) SA 610 (C): duty of a motorist towards children;
Mthetwa v RAF (08/15751) [2010] ZAGPJHC 138 (23 September 2010): duty of a pedestrian when
crossing at a robot-controlled intersection with the robot in her favour – she may assume that the
oncoming vehicle will stop at the red robot;
Mchepu v Road Accident Fund (66306/2012) [2014] ZAGPPHC 433 (30 May 2014): duty of a pedes-
trian when crossing a road at night;
Biddlecombe v Road Accident Fund (797/10) [2011] ZASCA 225 (November 2011): Motor cyclist
collides with 12 Ton truck in robot-controlled intersection that turns across oncoming traffic, equal
apportionment of negligence;
Gatley v Road Accident Fund (3481/12) [2014] ZAGPPHC 53 (27 February 2014): Motor cyclist
collides with a door of a motor vehicle being opened in traffic. A passenger alighted from the
insured vehicle in traffic, where the insured driver was in direct control of the insured vehicle
and the opened in traffic. The engine of the insured vehicle was running. The opening of the door
by the passenger is an act which was initiated by the insured driver, and was wrongful. There-
fore the opening of the door by the passenger has a causal connection between the driving itself
which resulted in the plaintiff sustaining injuries. Negligence of the insured driver has been
established and the injuries sustained by the plaintiff arose out of the driving of a motor vehicle.
The motor cyclist (plaintiff) unlawfully transgressed section 309(6)(a) of the National Road
Traffic Regulations, 2000 by driving between the lanes. Section 309(6)(a) reads as follows:
“Persons, other than traffic officers in the performance of their duties, driving motor
cycles on a public road, shall drive in single file except in the course of overtaking another
motor cycle, and two or more persons driving motor cycles shall not overtake another
vehicle at the same time: provided that where a public road is divided into traffic lanes,
each such lane shall, for the purpose of this paragraph, be regarded as a public road.”
The court apportioned negligence to lie 50% on the part of the insured driver whose passenger alighted,
and 50% on the part of the motor cyclist.
Pienaar v Road Accident Fund (2011- 43693) [2015] ZAGPJHC 205 (11 September 2015): Duty on
driver in the left of two lanes to check both rear view and side mirrors before turning right. Sole negli-
gence attributed to this driver where a motor cyclist in the right hand lane collides with her vehicle
from behind when she turns right without having checked the side mirror.
Liebenberg v Road Accident Fund (39831-2013) [2015] ZAGPPHC 197 (27 February 2015). A driver
turning across the lane of oncoming traffic is negligent if a collision occurs, but the driver of the
oncoming vehicle may also be negligent depending on what evasive steps he could or should have
taken.
Ngcongo v Road Accident Fund (10516/2013) [2014] ZAGPPHC 883 (7 November 2014) & Phete v
Road Accident Fund (RAF189/2014) [2015] ZANWHC 34 (29 July 2015): Bicycle rider (cyclist) riding
on the correct side of road hit from behind by an unknown motor vehicle is not negligent.
HOW IS AN APPORTIONMENT APPLIED TO FUTURE LOSS OF EARNINGS THAT IS CAPPED?

Nel v Road Accident Fund 2016 (2) SA 517 (GP). Future loss of earnings. If an apportionment is
applicable the apportionment must first be applied to the full amount loss of earnings. Thereafter the
cap is applied to the amount that remains.
A joint wrongdoer not sued by a plaintiff may in practice be brought before that Court in the same
©LSSA 68
action in one of two ways - either he intervenes voluntarily, or he is joined at the instance of the
defendant/s.
A joint wrongdoer not originally sued, who accedes to a request to intervene, must bring an appli-
cation to Court on notice to all third parties, which, if successful, renders him a “Defendant” in the
action.
On the other hand, a joint wrongdoer, joined at the instigation of an existing defendant, becomes
a “third party”.
Joinder in terms of Rule 13 and Rule 28A of the Uniform Rules of the High Court and the Magistrates’
Court respectively is not by application through motion proceedings, but such a third party is auto-
matically joined after a Third Party Notice is served on him together with the relevant particulars of
claim and copies of all pleadings filed to date; Under these Rules a Third Party may be joined:
• At the instigation of the defendant who claims to be entitled to a contribution from such Third
Party or who seeks an indemnification in respect of such relief claimed by the plaintiff from such
a defendant, or
• at the instigation of the defendant if the question of issue between them is substan-
tially the same as those involved between the plaintiff and the defendant.
If judgement is given in favour of the plaintiff against two or more wrongdoers, a Court may either
order such joint wrongdoers to pay the damages jointly and severally or apportion the damages, and
give judgements against the wrongdoers in proportion to their degree of fault.
See Rule 13 of the Uniform Rules of the High Court; s 28A of the Magistrates’ Court Act
See s 2(8) and Windrum v Neunborn 1968 (4) SA 286 (T);
See also Viljoen and Another v Cloete 1978 (3) SA 23 (O).
In regard to the applicability of this Act to MVA Actions:

Becker v Kellerman 1971 (2) SA 172 (D);
Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v van den Berg

en ‘n Ander 1976 (1) SA 602 (A);
Van Wyk and Others v Netherland Insurance Company of South Africa Limited 1971 (2)
SA 264 (W).
9.2 HIGH COURT

In the High Court a joint wrongdoer not sued by a plaintiff may in practice be brought before that
Court in the same action in one of two ways - either he intervenes voluntarily, or he is joined at the
instance of the defendant/s.
A joint wrongdoer not originally sued, who accedes to a request to intervene, must bring an appli-
cation to Court on notice to all third parties, which, if successful, renders him a “Defendant” in the
action.
On the other hand, a joint wrongdoer, joined at the instigation of an existing defendant, becomes
a “third party”.
Joinder in terms of Rule 13 is not by application through motion proceedings, but such a third party
is automatically joined after a Third Party Notice is served on him together with the relevant particu-
lars of claim and copies of all pleadings filed to date; Under Rule 13 (1) a Third Party may be joined:
• At the instigation of the defendant who claims to be entitled to a contribution from such Third
Party or who seeks an indemnification in respect of such relief claimed by the plaintiff from such
a defendant, or
• at the instigation of the defendant if the question of issue between them is substantially the same
as those involved between the plaintiff and the defendant.
If judgement is given in favour of the plaintiff against two or more wrongdoers, a Court may either
order such joint wrongdoers to pay the damages jointly and severally or apportion the damages, and
give judgements against the wrongdoers in proportion to their degree of fault.
©LSSA 69
9.3 MAGISTRATES’ COURT
The problem used to be somewhat unsatisfactorily entertained in the Magistrates’ Court since the
Rules contained no provision corresponding with Supreme Court Rule 13 nor was there a Rule sanc-
tioning the use of a conditional counter claim before the amendments to the rules of 15 October 2010.
The defendant necessarily therefore had to employ the provisions of Section 28(2) of the Magis-
trates’ Court Act in terms of which he was obliged to bring an application consisting of a Notice of
Motion supported by affidavits covering all the necessary allegations in order to affect such a joinder.
This problem had been solved by the amendments to the rules of 15 October 2010 and the crea-
tion of Rule 28A that deals with intervention, joinder, and consolidation of actions and operates very
similar to the High Court rule 13.
Khumalo v Wilkens 1972 (4) SA 470 (W).

Once a joinder has been affected in the Magistrates’ Court in terms of Rule 28A, a Magistrate should
then be requested to:
• implement the provisions of Section 2(8)(a) of the Apportionment of Damages Act, or
• apply Section 2(6)(a) of the same Act - Conditional Order.
British Oak Insurance Company v Gopali and Another 1955 (4) SA 344 (D);
Hughes v Transvaal Associated Hide and Skin Merchants (Pty) Limited and Another 1955 (2)
SA 176 (T).
9.4 APPORTIONMENT OF DAMAGES WHERE MORE THAN ONE PERSON IS LIABLE

The RAF compensates people who have been injured, or pays lost support to dependants whose bread-
winners have been killed in motor vehicle collisions.
The RAF’s liability to pay compensation is based on fault. This means that the injured person or
the deceased breadwinner’s dependants claiming compensation for personal injury or lost support
must prove that someone other than him or herself or the deceased caused the damages seeking to
be redressed.
9.5 WHAT OPTIONS DOES THE RAF HAVE IF THE INJURED PERSON OR THE
DECEASED OR ANOTHER PARTY IS PARTLY TO BLAME FOR THE DAMAGES?
Consider the following examples:
EXAMPLE 1
Mr Lourens and Mrs Johanna Viljoen were injured in a motor vehicle collision on Saturday,
24th of October 2008. Mrs Viljoen was a front-seat passenger in a Volkswagen Golf, HYJ
678 GP. Mr Viljoen was driving.
The Volkswagen Golf collided with a Fiat Uno, F5T234 NW, driven by Mrs Magda Hanekom
(the insured driver). Mr Viljoen was driving the Golf from west to east in Empire Road,
Parktown. Johannesburg. At the traffic lights at the intersection of Jan Smuts Avenue and
Empire Road, he drove into the intersection, the traffic light was green in his favour, and
he stopped in the intersection intending to turn right in a southerly direction in Jan Smuts
Avenue. He had to stop to give vehicles travelling from east to west in Empire Road the
right of way.
Eventually, the traffic light turned orange and then red for vehicles travelling in Empire
Road. A green arrow started flashing allowing right turning vehicles from Empire Road
into Jan Smuts Avenue to proceed. Mr Viljoen started turning right. The insured driver,
driving her motor vehicle from east to west in Empire Road, did not stop her vehicle at the
red traffic light for vehicles travelling in a westerly or easterly direction in Empire Road.
©LSSA 70
The front of the Fiat Uno collided with the left hand side of the Golf when Mr Viljoen
turned right.
Mr Viljoen’s evidence is that the Fiat Uno was travelling very fast. It did not look as if
the driver of the Fiat Uno was slowing her vehicle down as she approached the traffic light
(which was red for her). He concedes that he thought she was not going to be able to stop,
despite this, he started turning right and the collision occurred.
Mr Viljoen sues the RAF for damages (compensation for personal injury). His particulars
of claim allege that the insured driver’s negligence was the sole cause of the collision.
Based on his evidence, the court decides that Mr Viljoen’s negligent driving was 20% and
the insured driver’s negligent driving was 80% to blame for the collision.
Mr Viljoen’s proven damages are R250 000 (two hundred and fifty thousand rand).
Mrs Viljoen also sues the RAF alleging that the insured driver’s negligence was the sole
cause of the collision. Her face was lacerated. This could have been prevented if Mrs
Viljoen had been wearing her seat belt.
Mrs Viljoen’s proven damages are R125 000 (one hundred and twenty five thousand
rand).
Discussion of Example 1
In example 1, Viljoen (the Plaintiff), sues the RAF for compensation for personal injury
(damages). His particulars of claim allege that the insured driver’s negligence was the
sole cause of the collision. However, the court finds that the negligent driving of both the
plaintiff and the defendant’s insured driver caused the motor vehicle collision, the injuries
suffered and consequently, the damages.
Section 1(a) of the Apportionment of Damages Act 34 of 1956 (“Act 34 of 1956”) reads
that:
“Where any person suffers damage which is caused partly by his own fault and partly by
the fault of any other person, a claim in respect of that damage ………… shall be reduced
by the court to such extent as the court may deem just and equitable having regard to the
degree in which the claimant was at fault in relation to the damage.”
Section 1(a) of Act 34 of 1956 empowers the court to reduce damages if the person
who suffers damages was partly at fault (liable, to blame, and culpable) for the damages
suffered.
The damages are reduced to the extent of the fault. The court decides each person’s
degree of fault (liability, blame, culpability), as a percentage.
HOW DOES THE RAF GET THE BENEFIT OF SECTION 1(a) OF ACT 34 OF 1956?
Viljoen is a party before the court as the plaintiff in the action. The defendant can get the benefit of a
reduction of Viljoen’s damages by pleading contributory negligence in its plea.
This plea denies that the insured driver (Hanekom), was negligent as alleged by the plaintiff. If the
court finds that she is, the defendant pleads that the plaintiff was also negligent and sets out allega-
tions of the plaintiff’s negligence. The plea does not indicate the extent of the plaintiff’s negligence
because this is in the court’s discretion to decide.
The prayer in the plea asks that the plaintiff’s claim be dismissed; alternatively, that his damages
be reduced to the extent of his fault. (The plaintiff is nót joined as a third party because he is already
a party to the action.)
In example 1(a), the court found the Plaintiff’s degree of fault to be 20%. His proven damages of
R250 000,00 are reduced by 20%. The defendant will pay him R200 000 (two hundred thousand rand):
Proven damages R250 000.00
Less apportionment (-20%) R50 000.00
Total R200 000.00
In example 1, the plaintiff and the insured driver are joint wrongdoers. The definition of joint wrong-
doers relevant to this example is in Section 2(1B) of Act 34 of 1956:
©LSSA 71
“[I]f it is alleged that the plaintiff has suffered damage as a result of any injury to ………
any person and that such injury was caused partly by the fault of any other person, such
injured person …………… and such other person shall for the purposes of this section be
regarded as joint wrongdoers. “
What if Mrs Viljoen also claims from the RAF?

In the pleading Mrs Viljoen is cited as the plaintiff. The defendant is the RAF. There are 2 “insured
drivers” in the alternative in her claim, i.e. Magda Hanekom or Mr Viljoen. As long as one of them is at
least 1% negligent, the RAF must pay Mrs. Viljoen’s full proven claim, subject of course to the current
legislation’s caps or limitations, especially general damages and future loss of earnings.
This means that both Mr Viljoen and Magda Hanekom, as the insured drivers who possibly caused
or contributed negligently to Mrs Viljoen’s injuries and damages, are fully covered by the current RAF
Act and cannot be sued by the claimant, and therefore cannot be joined by the RAF as third parties
either.
IMPORTANT NOTE: Only under the preceding legislation before the amendments of 1
August 2008 would a joinder of an owner or driver have been possible. Under the current
legislation one can never join an owner or driver or the employer of the driver in a third
party claim because the common law claim against them had been abolished in terms of
section 21(1) of the act.
9.6 WHAT ABOUT OTHER “TYPES” OF JOINT WRONGDOERS? CAN THEY BE

JOINED BY THE RAF?
However, if the joint wrongdoer (under the current legislation) is nót a driver or owner of a motor
vehicle, this means that the RAF Act has no bearing on any possible claim or redress against that
joint wrongdoer. The common law claim against such a person or entity is intact. The plaintiff may
still sue such wrongdoer i.t.o. the common law and the RAF may also therefore join such a person or
entity to the action for a contribution to the claimant’s damages in line with their pro-rata percentage
of negligence, if the plaintiff did not sue that person or entity as a defendant.
Such joint wrongdoers may be employees of the state at any level, i.e. municipal employees who
had to service the roads and drains next to roads, or employees of public government hospitals, as
well as any private person executing any wrongful act that is not related to the driving of a motor
vehicle.
Kadi v Road Accident Fund and Others (14080/2007) [2014] ZAGPPHC 677 (5 September 2014):
Executive Council for Health, North West Province, and negligent Doctor are the 2nd and 3rd defend-
ants. The claim arose in 2004 and deceased was a passenger when injured. His mother who is a qual-
ified nurse witnessed the doctor’s negligence and her son’s subsequent death. She was disillusioned
with her profession and resigned. She further suffered severe traumatisation and depression. She
could not return to her job as a nurse. RAF settles the limited claim R25 000 special damages before
Mvumvu’s case (above). 2nd and 3rd defendants held to be jointly and severally liable for general
damages in the amount of R150 000, as well as R3 076 020.37 in respect of loss of earnings/earning
capacity and R65 000 in respect of future psychological and psychiatric treatment in consequence of
the death of her son.
Don’t forget: If somebody drives a vehicle that cannot be defined as a “motor vehicle” as required
by the RAF Act, and such person contributes to the injuries through the driving of that vehicle, such
conduct is nót subject to the RAF Act and that person as a joint wrongdoer may be cited as defendant,
or, if the plaintiff does not sue him, that person may later be joined by the RAF as a joint wrongdoer.
The defendant can get a contribution from a joint wrongdoer not sued by the plaintiff in one of
two ways:
The defendant can join the wrongdoer (not sued by the plaintiff) in terms of rule 13 of the High
Court rules and Rule 28A of the Magistrates’ Court Rules.
A joint wrongdoer (not sued by the plaintiff) can intervene in the proceedings after he or she
receives a notice ito section 2(b) of Act 34 of 1956.
©LSSA 72
Rule 13 and 28A joinder:

Rule 13(1) and 28A - Where a party in any action claims:
(a) as against any other person not a party to the action (in this rule called a “third party”) that such
party is entitled, in respect of any relief claimed against him, to a contribution from such third
party,
(b) such party may issue a notice, hereinafter referred to as a third party notice, which notice shall be
served by the sheriff.
Rules 13(3)(a) and 28A(3)(a) provides that before the close of pleadings, the third party notice and all
pleadings filed to the date of the third party notice shall be served on the third party. The Registrar of
the court issuing the third party notice and the other party to the action receives a copy of the third
party notice without copies of the pleadings.
After close of pleadings, a third party notice can only be served with leave of the court (Rule 13(3)
(b)), 28A(3)(b).
The third party notice is required to state the relief or remedy claimed against the third party, but
it cannot claim a judgement in money. All that can be sought is a declaratory order apportioning fault
between the defendant’s insured driver and the third party. The defendant is liable to the plaintiff
to liquidate the judgement against it, and it can then recover the third party’s proportion i.t.o. the
declaratory order.
Before an existing party (plaintiff or defendant) to an action serves a third party notice claiming a
contribution from that party, the party (intending to join another as a third party) must serve a notice
in terms of Section 2(2) of Act 34 of 1956 on the third party.
Section 2(2) of Act 34 of 1956 reads:

“(2) Notice of any action may at any time before the close of pleadings in that action be given -
(a) by the plaintiff,
(b) by any joint wrongdoer who is sued in that action, to any joint wrongdoer who is not sued in that
action, and such joint wrongdoer may thereupon intervene as a defendant in that action.”
Section 2(2) must be read with Section 4(b) of the same Act:
“(4)(b If no [section 2(2)(a) or(b)] notice is given to a joint wrongdoer who is not sued by the plaintiff,
no proceedings for a contribution shall be instituted against him .. by any joint wrongdoer
except with leave of the court on good cause shown as to why notice was not given to him ...”
Intervening in the proceedings:

If the joint wrongdoer (not sued by the plaintiff) receives a notice of the intention to join another as a
third party it must serve a notice in terms of Section 2(2)(b) of Act 34 of 1956, and has not been joined
as a party in terms of rule 13 of the High Court rules or Rule 28A of the Magistrates’ Court Rules, he
or she could intervene voluntarily in the proceedings by applying to court to do so.
If the application is successful, the joint wrongdoer is a defendant in the action.
This provision complements rule 12 of the High Court rules:

“Any person liable to be joined as a defendant in any action may, on notice to all parties, at any stage
of the proceedings apply for leave to intervene as a .., defendant”.
IN THE MAGISTRATES’ COURT

The Magistrates’ Court after the amendments to the rules of 15 October 2010 and the creation of Rule
28A that deals with intervention, joinder, and consolidation of actions operates very similar to the
High Court rule 13.
Rule 28(1) of the Magistrates’ Court rules enables a joint wrongdoer (not sued by the plaintiff) to
voluntarily intervene in the proceedings if he receives a section 2(2)(b) notice and no further steps are
taken to add him as a party to the proceedings.
The rule reads:

“(1) The court may, on application by a person desiring to intervene in any proceedings and having an
interest therein, grant leave to such person to intervene on such terms as may be just”.
©LSSA 73
Is Mrs Viljoen liable?
The facts in 1 indicate that Mrs Viljoen’s major injuries -lacerations to her face - would have been less
severe if she was wearing her seat belt at the time of the collision.
Therefore, her damages can be reduced by the extent of her fault because of section 1(a) of Act 34
of 1956. The RAF (defendant) can plead (in its plea) that Mrs Viljoen’s failure to wear her seat belt is
contributory negligence. Her damages will be reduced to the extent that her failure to wear a seat belt
exacerbated her injuries. [This has nothing to do with the joint negligence of the insured driver and
Mr Viljoen.].
9.7 CONDITIONAL COUNTERCLAIM UNDER THE CURRENT LEGISLATION
EXAMPLE 2
On Friday morning, the 15th October 1999, Jessica Singh was a front seat passenger in a
Honda Ballade, FGH 375 GP, driven by Ayesha Mia. Singh’s three year old daughter, Lea,
was sitting on her lap. A Mercedes Benz truck, JHK 371 GP, driven by Jan Swinepoxes (the
insured driver), collided with the rear of Mia’s vehicle. The insured driver’s negligence was
the sole cause of the collision.
Lea sustained severe head injuries in the collision. The impact of the collision flung her
forward and her forehead hit the dashboard of the vehicle. If Lea had been restrained in a
car seat, the severity of her injuries would have been reduced. No one else was injured in
the collision.
Singh, a widow, sues the RAF for compensation for Lea’s personal injury. She sues in
her personal capacity for past hospital and medical expenses and in her representative
capacity for future medical expenses, future loss of earnings and general damages.
Discussion of Example 2 under the current legislation

Note that the joint wrongdoer, Jessica Singh, is not an owner or driver of the motor vehicle
involved and that her wrongful act is unrelated to the driving of the motor vehicle: it was
her failure to secure Lea in a car seat.
Singh (plaintiff) sues the RAF (defendant) for compensation for Lea’s personal injury. Lea,
a three year old and a minor has no legal capacity and locus stand to institute proceed-
ings in her own name.
Singh will be a party to the action in two capacities:

Personal capacity: Singh will have a claim for reimbursement for hospital or medical
expenses incurred on Lea’s behalf. In other words, the claim for past hospital and medical
expenses will be in Singh’s personal capacity.
Representative capacity: Singh sues on Lea’s behalf for future medical expenses, future
loss of earnings and general damages.
Although the insured driver’s negligent driving was the only cause of the collision, Singh’s
contributory negligence, her failure to secure Lea in a car seat, was partly to blame for
Lea’s injuries and the resultant damages.
Singh’s damages in her personal capacity can be reduced to the extent of Singh’s liability
if the defendant pleads contributory negligence in its plea. The Court has the discretion to
determine the extent of her liability.
In her claim in her representative capacity, the defendant is entitled to a contribution
from Singh into Section 1(1)(a) of Act 34 of 1956. In order to obtain its contribution, the
defendant can bring a conditional counterclaim against Singh. In the conditional coun-
terclaim, the defendant denies the insured driver’s negligent driving caused or contrib-
uted to Lea’s injuries. It will allege that these injuries were caused solely by the plaintiff’s
negligence and the defendant will give the grounds of negligence.
The counterclaim is conditional on the court finding that the insured driver’s negligence
caused or contributed to Lea’s injuries. If the court finds that the insured driver was liable
©LSSA 74
for the damages, the court must apply its mind to determine the extent of the plaintiff’s
fault, if any. The court will then apportion negligence between the parties.
Alternatively, the defendant could give the plaintiff notice into section 2(2) of Act 34 of
1956.
It would be inappropriate to join the plaintiff to the proceedings in terms of rule 13

of the High Court Rules or rule 28(A) of the Magistrates’ Court Rules because the
plaintiff in her personal capacity is already a party before the court.
10. ASSESSMENT OF DAMAGES
10.1 KEEP IN MIND:

• T his is an integral part of the work;
• An attorney should not rely on advice of Counsel - should be able to give a rough idea of the
expected compensation;
• Look critically at assumptions made by actuaries in actuarial assessment.
10.2 CLASSIFICATION OF SPECIAL AND GENERAL DAMAGES

• Special damages represent actual financial loss;
• General damages for pain, suffering, shock, disability, disfigurement, loss of amenities of life and
loss of life expectancy and loss of earning capacity.
10.3. GENERAL DAMAGES (NON-PECUNIARY LOSS)

• No intrinsic worth;
• Can never be scaled - each case different;
• Awarded according to convention or custom that Courts have adopted with reference especially to
past awards;
• Corbett and Honey / RJ Koch - Quantum Yearbook – invaluable for calculations and determination
of general damages;
• Pattern of awards should be established when quantifying general damages;
• A very recent decision on all fours, important;
• Look at a number of awards, mostly recent;
• Multiple injuries - difficult to find comparable case - assess each individual injury separately and
reduce the total on the grounds of its multiplicity.
Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W);
Collins v Admin Cape 1995 (4) SA 96 (E);
Venter v Nel 1997 (4) SA 1014 (D);
RAF v Marunga 2003 (5) SA 164 (SCA);
Dlamini v Road Accident Fund (59188/13) [2015] ZAGPPHC 646 (3 September 2015). Severe brain
Injury Unemployable-general damages awarded R1 350 000.
Du Toit v Road Accident Fund (17587/2013) [2015] ZAGPPHC 599 (5 August 2015). Severe head
injury, left leg below knee amputation, left shoulder injury similar to a brachial plexus. R1 400 000
general damages awarded.
©LSSA 75
Webb v Road Accident Fund (2203/14) [2016] ZAGPPHC 15 (14 January 2016). 20 year old passenger
in a motor vehicle injured when driver loses control. L1 burst fracture with T12/L 1 dislocation
resulting in paraplegia, a left displaced radius and ulna fracture, and other injuries. Injured is wheel-
chair bound.R1 500 000 general damages awarded.
Please note: De Jongh v Du Pisanie NO (obo JG Rabe) 2005 (5) SA 457 (SCA); 2004 (2) ALL SA 565
(SCA) countered the impressions conveyed in the Marunga judgement delivered on 26 March 2003 to
double post-Marunga awards, concluding that “There appears to be agreement now that the spiral-
ling consequences flowing from Marunga’s case should be stopped in their tracks”.
10.4 CONSIDER THE FOLLOWING FACTORS IN ESTABLISHING A PATTERN:

• Similarity of injuries;
• Type and duration of treatment;
• disability and particularly permanent disability;
• Loss of amenities of life;
• Age;
• Disfigurement of woman - more serious than man, often;
• Date when previous award was made. taking into account the fact that general damages over the
past few years increased progressively, mostly due to the effects of inflation;
• Decreasing value of money;
• The older the award, the less valuable it is;
• Establish a range;
• Prepare memorandum when assessing quantum by recording injuries, Assessment and cases upon
which it is based;
• Understand medical evidence, if necessary consult a medical dictionary.
Combrink N.O obo Mukwevho v Road Accident Fund (A5025/12) [2014] ZAGPJHC 222 (19 September
2014):
The injured suffers from organic brain syndrome – post-traumatic- with associated fractures of frontal
lobe dysfunction, which condition he suffers as a result of injuries which he sustained in the colli-
sion. By reason of the frontal lobe dysfunction, he lacks good judgement and insight into his own
defect. His conduct is irrational, impulsive and inappropriate. It is highly likely that his resignation
from his job after the accident occurred as a result of the frontal lobe dysfunction. But for the frontal
lobe dysfunction, he would not have executed the 2009 resignation. He is unlikely to be employed
gainfully as a result of the effect of the brain injury sustained in the accident. He has no prospects of
securing gainful employment in the future. The court awards other damages including future loss of
earnings, and also awards general damages in the amount of R 850 000 00.
Minnie NO v Road Accident Fund 2012 6 (6A4) QOD 82 (GSJ): the Court awarded damages in
the amount of R800 000 00 to a 5 year old girl who had a severe head injury with serious injuries
requiring repeated surgery and causing permanent and extensive disfigurement. The present value of
the award (in 2014) is R936 000-00.
Pettersen obo J ST I v Road Accident Fund 2012 6 (6A4) QOD 88 (GSJ): an award of R750 000 00
was made to a 4 year old boy who sustained significant brain injury resulting in daily seizures and
cognitive deficits and vulnerability in the open labour market.
Dlamini v Road Accident Fund (59188/13) [2015] ZAGPPHC 646 (3 September 2015): Severe brain
Injury Unemployable-general damages awarded R1 350 000.
Du Toit v Road Accident Fund (17587/2013) [2015] ZAGPPHC 599 (5 August 2015): Severe head
injury, left leg below knee amputation, left shoulder injury similar to a brachial plexus. R1 400 000
general damages awarded.
©LSSA 76
Mahlangu v Road Accident Fund (038823/14) [2016] ZAGPJHC 193 (21 July 2016). 6yr old injured
suffering a severe head injury which has further complicated the focal injury to the brain. The injury
occurred at the critical point of his development, causing drastic deterioration in his performance
at school. He is unlikely to perform according his premorbid potential and will encounter scholastic
difficulties and setbacks. The injuries will impact negatively on his sporting and occupational activi-
ties. General damages of R 1 100 000 awarded.
Van Rooyen N.O. obo Opperman v Road Accident Fund (51326/2012) [2016] ZAGPPHC 395 (27
May 2016). Plaintiff suffered a soft tissue hyperextension injury cervical spine, left carotid occlusion
with left middle cerebral artery infarct, vertebral artery injury with right occipital lobe infarct and
bilateral foot drop. General damages of R 1 300 000 awarded.
10.5 SPECIAL DAMAGES

Prof Hennie Klopper in his book RAF The Practitioners Guide, defines patrimonial damages as
follows:
“[This] relate to a loss or diminution of one’s patrimony. This can occur in a number of ways: past
loss of earnings, medical and hospital expenses actually incurred and costs of services and equip-
ment. The claimant has to prove a legal obligation for the payment of the disbursements and costs
claimed. This obligation arises where the claimant him- or herself suffered the injuries and paid the
expenses and incurred the other losses referred to. It also arises where the claimant’s minor child
or spouse is involved and the claimant is legally responsible for their support and maintenance or
where other indigent dependants are involved, provided the claimant establishes a recognised duty of
support. Damages of this nature are treated as special damages.”
10.5.1 PAST HOSPITAL EXPENSES

Must be supported by vouchers. Vouchers are invoices from supplier to claimant reflecting date of
treatment, nature of treatment, name of patient and expense incurred. Medical aid schedules or
receipts for payment made are not vouchers.
10.5.2 PAST MEDICAL EXPENSES

• Remember the expenses of replacing false teeth, spectacles and artificial limbs not recoverable
unless a direct consequence of the injuries sustained.
• Costs of medico-legal reports are not part of damages, but part of the “legal” costs.
Free State Consolidated Goldmines (Operations) Ltd v MMF 1997 (4) SA 930 (O).
10.5.3 FUTURE HOSPITAL AND MEDICAL EXPENSES

• Estimate from medico-legal report;
• Estimate is given at present rates;
• Discount;
• Capitalise.
AD and Another v MEC for Health and Social Development, Western Cape Provincial Govern-
ment (27428/10) [2016] ZAWCHC 116 (7 September 2016). Although this is a claim based on medical
negligence the lengthy judgement on quantum is most instructive and can be used as a guide for
what aspects need to be covered in a case where future consequences of injury or illness are vast and
serious.
©LSSA 77
EXPERTS MUST PREDICT FUTURE HOSPITAL, MEDICAL AND RELATED EXPENSES: MEDI-
CO-LEGAL REPORTS
Please note that you are not medically qualified to determine whether a client will require future
medical treatment or not. Even if the statutory medical report completed by the doctor who treated the
client at the time of the accident indicates that no future medical treatment is foreseen, you need a
medico-legal report in all circumstances. Failure to obtain a report leaves you open to a professional
indemnity claim for under- settling the matter.
It is also important to brief the correct expert with regard to ascertaining reasonable figures in
respect of future medical expenses. (Risk Alert, August 2002).
If your firm cannot carry the expense of the medico- legal report:
• Arrange with the specialist for payment of the account upon settlement of the claim with the RAF;
• Attempt to persuade the RAF to send the client for a medico- legal assessment at their expense.
(This is not always the best solution as the report may be structured to suit the defendant’s case);
• As a last resort send the client to another firm who can carry the expense.
10.5.4 UNDERTAKING TO PAY FUTURE HOSPITAL AND MEDICAL EXPENSES

• Section 17(4)(a) of the RAF Act;
See Marine and Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A) as to nature and form.
• The Fund cannot be forced to tender undertaking;

• The Plaintiff though may not reject this undertaking if offered and insist on the value of it in
money;
• Reasonableness of expense;
• Expense must arise as a sequelae of the injuries sustained.
10.5.5 PAST LOSS OF EARNINGS

• Simple mathematical calculation based on rate of earnings and period of absence;
• Calculation should be made on Claimant’s net income after tax;
• Consider deduction for hazards and contingencies; (actuaries usually apply a 5% contingency
deduction an past loss);
• An employer’s certificate should be obtained;
• Obtain balance sheets and income tax returns if applicable.
Nkwenteni v Allianz Insurance Co Ltd 1992 (2) SA 713 (Ck).
10.5.6 FUTURE LOSS OF EARNINGS

• Bear in mind ability of Court to award a lump sum for “loss of earning potential”;
• Section 17(4)(b) Undertaking can be tendered by way of alternative settlement under this head,
but bear in mind “in instalments as agreed upon”.
10.5.7 INCIDENTAL EXPENSES

• Travelling expenses;
• Attendant;
• Special appliances such as crutches, artificial limbs, raised shoes, extra cost of automatic car, etc;
• Burial expenses including preparation of body for burial, coffin, hearse, Minister’s fees and tomb-
stone.
Merkin v Commercial Union 1989 (2) SA 584 (C).
©LSSA 78
10.5.8 LOSS OF FUTURE EARNINGS AND LOSS OF SUPPORT

• Need to capitalise the claimant’s loss on the assumption that capital would have been invested
whereas payment may only be due in future;
• Use of annuity tables; Deduction of hazards and contingencies of life; (Robert J Koch in his book
“The Quantum Year book” states that there are no fixed rules as regards general contingencies and
one of his helpful guidelines is that of the sliding scale contingency theory:
• “Sliding scale: ½ % per year to retirement age, i.e. 25% for a child, 20% for a youth and 10% in
middle age”.
• Early retirement age;
• Likelyhood of illness, unemployment;
• Mortality rates;
• Remember that the “cap” in terms of S 17(4A)(a) of R160 000 had been increased on 31/07/2016
to R248 710.00 in GG 40175. By the time you read this manual more quarterly increases would
have been published.
Cook v Road Accident Fund (10/22147) [2012] ZAGPJHC 189 (10 October 2012): Future loss of
earnings as a result of loss of earnings capacity proven. Early retirement age at 62-63 as opposed to
proven retirement age of 65.
AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A): 50% contingency deduction
from future loss of earnings.
EN Makinana obo S Makinana Case no: 625/2008 (4 November 2010) (ECG): 7–year old child’s future
loss of earnings as a result of loss of earnings capacity proven. 25% contingency deduction from
future loss of earnings applied.
M obo M v Road Accident Fund (66472/13) [2015] ZAGPPHC 625 (21 August 2015): Contingencies to
be applied to the calculated future income given the accident did occur of a brain injured minor child
determined to be 55%.
Kruger v Road Accident Fund (30579/2008) [2014] ZAGPPHC 682 (3 September 2014): Given that
the plaintiff has to stop working and re-skill himself for employment in different sector where he will
perform sedentary work, at his age he will be an uncompetitive entrant in the job market as well as
the fact that he will be living with sequelae from the two accidents, a contingency of 10% for post-ac-
cident loss is reasonable.
Jonosky v Road Accident Fund (2010/01220) [2013] ZAGPJHC 149 (14 June 2013): Claassen J decided
that a future loss of earnings calculation must include an annual actuarially projected increase for
inflation to make provision for the future annual “cap” in terms of section 17(4)(c), and that the “cap”
would be the last quarterly increased amount published before the date of the accident. The judge in
Sil differed from this and in RAF v Sweatman the SCA declared Jonosky incorrect.
Sil & others v Road Accident Fund 2013 (3) SA 402 (GSJ) paras 13 to 15, Sutherland J however found
that the purpose of the cap is to limit the sum to be paid. It is not intended to interfere in the calcu-
lation of the loss. The artificially set maxima exist to resolve the challenges to the RAF in funding
demands made on it, not to prescribe a new methodology of calculating loss. He too found that contin-
gencies had to be taken into account in determining the actual loss. In projecting a future actual loss,
the exercise contemplates the chances of not achieving the projected rate of earnings by factoring in
predictable risks. Those risks are expressed as the given contingencies. There is no other place in the
calculation process where, the contingencies could be usefully applied to a calculation of loss, i.e. the
net loss or, more appropriately, the actual loss.
RAF v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015) overruled Jonosky’s case, where it
was ordered that the correct approach is to determine the present value of the actual loss suffered, as
actuarially calculated, taking into account all contingencies, including mortality, and then compare
it with the annual loss (the limit or cap) as determined on the date of the accident. But nowhere does
the Act suggest that the amount in the last notice published before the date of the accident must be
adjusted each year to take into account the ravages of inflation. The quarterly adjustments will take
©LSSA 79
care of problems with inflation for future claimants, but the limit for a particular claimant’s loss is set
at the date of the accident. A reading of s 17, even having regard to its purpose, does not lend itself to
the interpretation that there is a different cap for each year after the accident. The case of Sil & others
v Road Accident Fund was referred to with approval.
Nel v Road Accident Fund 2016 (2) SA 517 (GP). Future loss of earnings. If an apportionment is
applicable the apportionment must first be applied to the full amount loss of earnings. Thereafter the
cap is applied to the amount that remains.
10.5.9 LOSS OF SUPPORT

• General ratio apportionment of income – 2 parts for each adult and 1 part for each child. The
deceased breadwinner’s share falls out of calculation on the basis that his share would have been
utilised by him for his own support during his lifetime.
• Retirement age usually 65 but a higher or lower retirement age may be proven on the facts;
• Age to which children would have received support - consider high school education, affluence of family,
need and merit for tertiary education - 18 or 21 or self-supporting – depends on particular circumstances.
• Minimum calculation for a child is to age 18;
• Widow’s claim until husband reaches retirement age;
• Widow: Apply deduction for hazards and contingencies, possibility of birth of further children and
remarriage prospects;
• Remarriage prospects: Halve statistics;
• Consider benefits received by dependents;
• Assessment of Damages Act - no insurance monies, pensions or benefits taken into account when
assessing damages for loss of support;
• Wife married in Community of Property is deemed to have inherited only one half of husband’s
estate;
• Certain assets are deemed already to be available for the wife’s use, example - house, furniture,
etc.;
• Accelerated value of benefits received from deceased estate may be taken into account;
• No account should be taken of the fact that a widow is able to go out and work;
• Widow’s pre-accident earnings must be taken into account;
• The need to employ an actuary for more difficult calculations;
• But bear in mind that the court has a wide equitable discretion to arrive at a fair award. See RAF
v Monani [2009] 4 SA 327 (SCA) where the surviving dependants were held to be entitled to the
hypothetical share of a dependant who had died contemporaneously with the breadwinner.
Remember that the “cap” in terms of S 17(4A)(a) of R 160 000 had been increased on 31/07/2016 to
R248 710.00 in GG 40175. By the time you read this manual more quarterly increases would have been
published.
MacDonald v Road Accident Fund (453/2011) [2012] ZASCA 69 (24 May 2012): Dependants’ claim
for loss of support – application of the Assessment of Damages Act 9 of 1969 – calculations that
are based on based on assumptions, hypothesis and contingencies are not appropriate where actual
figures are available. The court a quo also found that the division of two shares for each parent and
one share per dependent child, inappropriate in the circumstances. Loss of support is confined to
actual pecuniary loss. In the first place that means that the dependants cannot claim compensation
in the form of a solatium for the grief, the stress and the hurt brought about by the death of a loved
one, because these are not capable of being calculated in money. It also means that the dependants
are not allowed to profit from the wrongdoing of the defendant. Accordingly, the actual pecuniary loss
to which the dependants are entitled, can only be ascertained by a balance of losses and gains, that
is by having regard not only to the losses suffered, but also to the pecuniary advantage which may
©LSSA 80
come to the dependants by reason of the breadwinner’s death.

Coughlan NO v Road Accident Fund (CCT160/14) [2015] ZACC 9; 2015 (4) SA 1 (CC): Foster child
grants made to the dependants of a deceased killed in a collision covered by the Road Accident Fund
Act 56 of 1996 should not be deducted from any award of damages for loss of support made by the
Road Accident Fund. Rights of vulnerable children i.t.o. the Constitution Act s 27 and 28 and the Chil-
dren’s Act 38 of 2005 s 1, 156(1)(e) and 181 considered. Foster child grants are not predicated on death
of a parent. Its nature and purpose is different. Foster child grants are not payable to the foster child
but to the foster parent. Sections 18(2) and (3) of the Road Accident Fund Act 56 of 1996 expressly
provides that double compensation for persons who are entitled to claim under the Compensation for
Occupational Injuries and Disease Act should be deducted from compensation by the RAF but there is
no equivalent reference to social grants.
Road Accident Fund v Zulu and Others (50/11) [2011] ZASCA 223 (30 November 2011): Contingencies
on future employment. 40% contingency that very competent academic Deceased Professor would
have remained in academia and would have been promoted to Vice-Chancellor of the university in
2000 and remained at the university until 2005 and a 60 % contingency that he would thereafter have
entered the corporate sector as an executive; and that he would have been appointed as CEO in 2010,
where he would have remained until his retirement age. Calculations of future loss of support must be
done with reference to those contingency percentages.
Tutubala v Road Accident Fund (2014/34463) [2015] ZAGPJHC 149 (23 July 2015): A plaintiff who
is a pensioner and who also inherited from the deceased’s estate received interest on an amount of
the inheritance that she invested. The interest from the investment together with her old age pension
was found to be enough to cover her proven living expenses. Her claim for loss of support against the
RAF therefore fails.
Mohohlo v Road Accident Fund (7205/13) [2016] ZAGPPHC 142 (29 January 2016). Maternal aunt
who raised deceased (but did not legally adopt him) is entitled to loss of support.
Fosi v Road Accident Fund 2008 (3) SA 560 (C). In terms of African customary law the child who is
financially able to do so is under an obligation to maintain his needy parent. Having regard to s 211(3)
of the Constitution of the Republic of South Africa, 1996, which determines that all courts in South
Africa must apply customary law where appropriate, subject to the Constitution and legislation that
deals in particular with customary law, there is no reason why consideration should not be given to
this portion of customary law in the determination of liability of the driver of a motor vehicle towards
a parent who has lost a child in a motor vehicle accident caused by the negligent driving thereof by
the aforementioned driver.
Jacobs v Road Accident Fund 2010(3) SA 263 (ECP). A child’s duty to support his or her parents
is recognised in our law. The numerous authorities supporting this principle are summarised and
discussed in Oosthuizen v Stanley 1938 AD 322. A child’s duty to support a parent arises if both
parents are indigent and are unable to support themselves, and if the child is able to provide support.
In casu the mother also contributed but the deceased’s contribution was necessary to survive.
Motha v Road Accident Fund (40852/2015) [2016] ZAGPPHC 559 (23 June 2016). Plaintiff is an
uneducated, untrained unskilled 59 year old widowed mother of her deceased daughter. The daughter
was a graduate, gainfully employed and factually supported the plaintiff and the common household.
In customary law (African law), a child is under a duty to support his or her parent, as is a child
where in life a duty rested upon the child to support his or her parents.
10.5.10 COMPENSATION COMMISSIONER (“CC”)

• The whole compensation awarded by the CC must be deducted. The claimant must ensure that all
the payments which have already been made by the Compensation Commissioner is included in
the claim.
• Claimant must include full common law damages.
©LSSA 81
IF THERE IS AN APPORTIONMENT, FIRST APPORTION, THEN DEDUCT CC AWARD;
In Maphiri v RAF [2003] 4 ALL SA 168 (SCA); 2004 (2) SA 259 (SCA) the afore-going “formula” was
confirmed.
Mashinini v Road Accident Fund (14849/13) [2014] ZAGPPHC 726 (19 September 2014): Even if the
amount awarded by the CC is still to be paid in monthly installments over many years in the future,
the total of the CC’s award must immediately be subtracted from the amount that the RAF is liable for.
The dependant also cannot apply to court to have the CC’s monthly payments stopped and in order to
have the RAF pay out the full lump sum.
EXAMPLES:
Common law damages:
Hospital expenses 12,000
Medical costs 10,000
Loss of income 8,000
General damages 25,000
55,000
Award by Compensation Commissioner:
Hospital expenses 12,000
Medical costs 10,000
Loss of income 6,000
Temporary disablement 2,000
30,000
If no apportionment amount payable by RAF to claimant:
Common law damages 55,000
Compensation award 30,000
amount payable by RAF 25,000
If e.g. Claimant is 50% to blame
Less 50% 27,500
27,500
-Compensation award 30,000
-2,500
Therefore no amount payable by RAF
If e.g. Claimant is 20% to blame
Less 20% 11,000
44,000
-Compensation award 30,000
Amount payable by RAF 14,000
Wille and Another v Yorkshire Insurance Co Ltd 1962 (1) SA 183 (N).
• Capitalised value of periodical payments made by CC to be determined and deducted;

• Benefits received from a collateral source: e.g. Personal Accident Policy - not deductible;
• Benefits received under contract of employment are deductible.
Standard General v Dugmore 1997 (1) SA 33 (A);

Masuku v RAF [2002] 2 ALL SA 55 (T).
Consider the Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) principle. The Appellate
Division, in an appeal from a decision in a Local Division wherein it was ordered that the retirement
benefits received by the plaintiff had to be deducted from the damages claimed for loss of earnings
from the date of trial to the date when the plaintiff would have retired and from the damages claimed
for loss of income after the date of such retirement where the plaintiff had, in terms of the regulations
©LSSA 82
governing his employment in the civil service, contributed during his employment to such benefits
and his employer, the Government, had also contributed thereto, confirmed the decision of the trial
Court that such benefits (pension and gratuity and additional benefits out of revenue in terms of
regulation 2 of Government Notice R780 contained in Government Gazette 4275 of 10 May 1974) had
to be deducted from such loss of earnings and loss of income.
10.6 PRACTICAL APPLICATION

Consider & work through the instructive judgement of Chaitowitz A.J. Kekae v Road Accident Fund
[2001] 2 ALL SA 41 (W).
11. LIMITATIONS AND CAPS ON DAMAGES UNDER THE CURRENT

LEGISLATION
See 14.1 below for an exposition of the judgement RAF V DUMA AND 3 RELATED CASES (202/12)
[2012] ZACSA 169; [2013] 1 ALL SA 543 (SCA) AND ITS IMPACT ON THE GENERAL DAMAGES
CLAIM PROCEDURE
11.1 GENERAL DAMAGES / NON PECUNIARY LOSS: only for “SERIOUS INJURY”
General damages are non-patrimonial damages. It includes loss in respect of pain and suffering,
disfigurement, diminished earning capacity, loss of amenities of life, life expectancy and nervous
shock. All of these headings fall under non-patrimonial loss.
(See: Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (A) 954).
Since 1 August 2008 only general or non-patrimonial damages for serious injuries, as assessed in
accordance with the prescribed methods, can be recovered from the RAF. No other non-patrimonial
damages are recoverable as section 21 absolves the wrongdoing driver from liability by abolishing the
common law claim. To prove a “serious injury” regulation 3 prescribes that there must be a Whole
Person Impairment (WPI) established using the 6th Edition of The American Medical Association’s
(AMA’s) Guide to the Evaluation of Permanent Impairment which indicates at least a 30% WPI. Alter-
natively, if the AMA assessment renders a WPI of less than 30%, the claimant may choose to comply
with the narrative test.
There is no claim for non–pecuniary loss (general damages) against the RAF for a person who has
injuries which are not considered to be “serious” as contemplated in the current legislation.
Provided that an injury meets the requirements of “a serious injury” the quantum of the third
party’s claim for general damages (non-pecuniary loss) is to be determined in accordance with the
normal common law principles.
It seems therefore that the “multitude” of information which follows is to decide whether the third
party can cross the notional division from a “minor” to a “serious” injury in order to qualify for
compensation for general damages.
A medical practitioner, who is registered in terms of the Health Professions Act, must examine the
claimant (for the purpose of completing the RAF4 form) and must take the following steps:
11.1.1. Determine whether the injuries are listed as “non serious injuries” published in a Government
Gazette - (Regulation 3(1)(b)(i)). The list has been published in the amendments to the Regu-
lations that became operative on 15 May 2013 and medical practitioners must hence include
this step;
11.1.2. If the injury is not listed as discussed above, then the question is whether the injuries resulted
in a 30% or more whole person impairment, as determined by the Sixth Edition of the AMA
Guides to the Evaluation of Permanent Impairment (Regulation 3 (1)(b)(ii)); or
11.1.3. If the injuries are less than 30%, then in terms of Regulation 3(1)(b)(iii) there are four factors
to be considered to determine whether the claimant will still qualify for general damages (the
“narrative” test).
11.1.4 An injury or injuries that appears in Regulation 3(1)(b)(i) may not be assessed as a serious
injury. However, Regulation 3(1)(b)(ii) makes provision for the assessment of such an injury
©LSSA 83
or combination of such injuries as a serious injury if any complication arises from any one, or
any combination of the injuries listed in items (aa) to (pp) in terms of sub regulations 3(1)(b)
(ii) and (3)(1)(b)(iii) (i.e. in terms of the narrative test.)
A LOOK AT THE VOLUMINOUS PROVISIONS DEALING WITH THE TERM - A “SERIOUS” INJURY”:
The reference to “serious injury” starts with the proviso to Section 17(1) placing a limitation on the
RAF to compensate a third party for non-pecuniary loss (general damages) for only a serious injury
as contemplated in subsection (1A).
Section 17(1A) (a) stipulates that the assessment is to be based on a prescribed method adopted
after consultation with medical service providers.
Section 17(1A) (b) lays down that the said assessment is to be made by a medical practitioner regis-
tered as such under the Health Professions Act.
Section 26(1A) authorises the Minister of Transport to make regulations in connection with the
method of assessment of what injuries are to be considered as serious or not serious and a method of
resolving any disputes under the current legislation.
The RAF Regulations, 2008 as amended, must be applied and particularly Regulation 1 DEFINITIONS
“AMA Guides” the American Medical Association’s Guides to the Evaluation of Permanent Impairment,
Sixth Edition and Regulation 3.
ASSESSMENT OF SERIOUS INJURY IN TERMS OF SECTION 17(1A).

The AMA Guides, which incidentally was obtained from the United States during 2008 at a cost of
approximately R2000, consists of more than 600 pages. Medical practitioners in particular, but also
RAF employees, attorneys and advocates should have access to and an understanding of the AMA
Guides. In the INTRODUCTION at page 19 of the AMA Guides the work is described as being “written
by medical doctors for other medical doctors as a tool to translate human pathology resulting from a
trauma or disease process into a percentage of the whole person… the assessing doctor must possess
the requisite medical knowledge, skills, and abilities”. Certainly, well-educated lay persons attempting
to handle their own claims will struggle and one can only look in awe as to how the unrepresented
masses will have the remotest possibility of determining whether they have any rights when they are
injured in a motor collision and where they will begin if they prefer to pursue their claims without
legal assistance.
The express intention of the AMA Guides summarised on page 6 does not appear to focus on
the determination of some threshold for accident victims becoming entitled to institute claims for
compensation.
On a reading specifically from pages 20 to 27 of the AMA Guides the appropriateness of attempting
to adopt the overall philosophy contained therein into the South African context becomes highly
debateable. The scheme is most commonly used in various workers’ compensation systems in the
United States and abroad. The workers’ compensation systems are “no fault” based and there are
formulas for payments as opposed to the case law judicially determined method of deciding general
damages in South Africa and the United Kingdom.
The AMA Guides is also used in the United States, Canada, New Zealand and certain States of
Australia; some of which are not fault based. Moreover at page 27, even while emphasising the use
of interpreters, the authors caution “Cultural differences between the examiner and the patient can
greatly increase the risk of the examiner misinterpreting the patient’s responses”. This does not bode
well for our multi-lingual and culturally diverse society. Item 11 of the 14 “Fundamental Principles
of the Guides” listed in TABLE 2-1 on page 20, specifically excludes the rating of future impairment.
The table below sets out a few examples of WPI ratings in terms of the AMA Guides. It is important
to note that the ratings below are not a fixed rating for the specific injury, but may vary, depending
on the severity of the injury, the impact of the injury on the claimant’s activities of daily living, and
the results of the clinical tests and physical examination.
It will, however, give attorneys a good idea of the WPI ratings of certain injuries:
©LSSA 84
Injury WPI %
Whiplash injury 0%
Hip dislocation with good recovery 1%
Rotator cuff injury 4%
Migraine headaches after mild traumatic brain injury 4%
Major depressive disorder 5%
Fracture of the middle finger 6%
Total knee replacement with a good result 8-10%
Tibia plateau fracture 9%
Incapacitating pain following bilateral wrist injuries 9%
Hip fracture with a 3,3cm shortening of the leg 12%
Knee injury with loss of flexion 12-14%
Spinal fusion surgery 15-23%
Pelvic fracture dislocation 16%
Disfigurement of the nose 17%
Amputation of two fingers 17%
Mid foot amputation 18%
Amputation of the thumb 23%
Total ankle replacement with a poor result 24%
C5 and C6 fractures with neck fusion 29%
Amputation 7,5cm below the knee 28-29%
Traumatic brain injury 35%
T10 paraplegia 57%
C4 Quadriplegia 97%
From the above examples, it is evident that only the traumatic brain injury, paraplegia and quadri-
plegia result in a 30% or more WPI rating. These claimants will therefore qualify for general damages
under the AMA Guides test.
11.2 LOSS OF EARNINGS / SUPPORT

In terms of Section 17(4)(c), regardless of the actual loss of income or support, such losses are to be
calculated proportionately to an initial maximum annual loss of R160 000 (increased quarterly).
• On 31/07/2016 it was increased to R248 710.00 and there will of course be future quarterly
increases. It can be expected at the end of each January, April, July and October.
• Any shortfall will not be recoverable from the RAF and the only way to protect oneself against such
a shortfall would be to take out private insurance from an insurance company.
• Loss of earnings and loss of support form part of special damages and therefore no serious injury
assessment is required to claim such damages.
©LSSA 85
12 REGULATION 3: HOW TO CLAIM FOR NON-PECUNIARY LOSS
(GENERAL DAMAGES)
12.1 THE “SERIOUS INJURY ASSESSMENT” PROCEDURE AND REPORT – RAF4
12.1.1 THE INJURED PERSON MUST FIRST UNDERGO THE AMA SERIOUS INJURY
ASSESSMENT.
Regulation 3. Assessment of serious injury in terms of section 17(1)(A)
(1) (a) A third party who wishes to claim compensation for non-pecuniary loss shall submit himself or
herself to an assessment by a medical practitioner in accordance with these Regulations.
(b)(i) Any one, or any combination, of the following injuries, are for purposes of section 17 of the Act,
not to be regarded as a serious injury and no injury shall be assessed as serious if the injury
meets the following description -
(aa) any whiplash type or soft tissue injury to the neck or back;
(bb) [The list of “non-serious injuries” then continues and ends at (pp)].......................
(pp) (any mild or moderate form of depression, anxiety, chronic headaches or post-traumatic
stress disorder;
Provided that, if any complication arises from any one, or any combination of the injuries listed
in items (aa) to (pp), the third party shall be entitled to be assessed in terms of sub regulations
3(1)(b)(ii) and (3)(1)(b)(iii).”
(ii) If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the
AMA Guides, the injury shall be assessed as serious.”
(iv) The AMA Guides must be applied by the medical practitioner in accordance with operational
guidelines or amendments, if any, published by the Minister from time to time by notice in the Gazette.
If the injured is assessed at 30% whole person impairment or more, he may qualify for non-pecuniary
loss, i.e. general damages over and above the special damages that he is claiming.
In the AMA Guides the following definitions are given:

• “whole person impairment” percentages that estimate the impact of the impairment on the indi-
vidual’s overall ability to perform activities of daily living, excluding work.
• “impairment” a significant deviation, loss, or loss of use of any body structure or function in an
individual with a health condition, disorder or disease.
• “body functions” physiological functions of body systems (including psychological functions).
3(1)(b)(iv) (iv) The AMA Guides must be applied by the medical practitioner in accordance with opera-
tional guidelines or amendments, if any, published by the Minister from time to time by notice in the
Gazette.
Mahano v Road Accident Fund 2008/2014 [2015] ZASCA 23. An Operational Guideline is not
peremptory in terms of regulation 3(1)(b)(iv) to be applies to the AMA assessment. It is discretionary.
The Minister did not publish any such guidelines.
3(1)(b)(vi) – if the Minister ever approves and then publishes in the Gazette a training course on how
to apply the AMA Guides, only a medical practitioner who passes the course will be entitled to assess
an injury and presumably complete the RAF 4 report. To date no such course has been published in
the Government Gazette, and currently any doctor who can use the AMA Guides, may complete the
RAF4 form. The RAF does present training courses in the use of the AMA guides from time to time.
It is difficult to envisage many busy general practitioners or specialists embarking on such a
course. Perhaps the AMA Guides will in the future form part of the academic training for doctors
if this sub-section is to be implemented?
3(2)(a) – a third party will have to bear the costs of the RAF4 examination (both medical and legal
no doubt) unless the third party ultimately establishes all the essential elements set forth in the Act for
the liability of the RAF AND the RAF has to pay general damages when the injury qualifies as “serious”.
The costs for this assessment is set in Regulation 3(2)(a)(i) and may currently not exceed R3 000.00
©LSSA 86
(excluding VAT) in terms of Notice nr. 1168 in GG 39446 of 24 November 2015.

In the event of the RAF eventually having to compensate the third party for special damages only,
albeit on the limited basis, the third party will nevertheless be liable for the costs relating to the
assessment. There would also be the costs incurred in connection with the elaborate dispute resolu-
tion process envisaged in subregulations (4) through to (13) of Regulation 3.
12.1.2 IF THE AMA SERIOUS INJURY ASSESSMENT RENDERS LESS THAN 30% WPI, USE
THE NARRATIVE TEST.
If the percentage is below 30% WPI, the injured may choose to use the “narrative test” per regulation
3(1)(b)(iii). In order to qualify for non-pecuniary loss, one or more of the results in regulation 3(1)(b)
(iii)(aa) to (dd) has to be present.
The third party must then establish that the injury:

(aa) resulted in a serious long-term impairment or loss of a body function;
(ab) constitutes permanent serious disfigurement;
(ac) resulted in severe long-term mental or severe long-term behavioural disturbance or disorder;
or
(dd) resulted in loss of a foetus.”
On the initial taking of instructions client will have to be advised on the limitations with reference
specifically to “serious injuries” (including the dispute procedure) and the method of assessment,
hospital and medical expenses and loss of income/support depending on the annual income.
Early consideration should be given to the implementation of the steps to be taken regarding the
assessment of the injuries with a view to either abandoning any claim for non-pecuniary loss or
having the RAF 4 form completed by a suitably qualified medical practitioner.
Concurrently with going through the “serious injury assessment” procedure the plaintiff’s attorney
ought to obtain the information on the merits and quantum (of course having regard to the limitations)
to ensure that the necessary documentation is properly completed and lodged timeously with the RAF.
Save that the claim forms and medical reports under the preceding and current regulations are very
different, the steps to be taken to lodge the claims are quite similar. However, where it is intended to
recover non-pecuniary loss (general damages) the RAF 4 Serious Injury Assessment Report must be
lodged within the prescriptive time limits. Keep Van Zyl v Road Accident Fund (34299/2009) [2012]
ZAGPJHC 118 (11 June 2012) (Refer back to 3.9 above in this regard.)
A number of cases dealt with the “narrative test” since 1 August 2008 where it had been used as
the primary serious injury assessment without first having the AMA assessment done. The courts
invariably for many different reasons confirmed that the claimant had a choice between the AMA
test and the narrative test, and that the latter did not have to follow on the former in the event that
the former did not yield the required “30% impairment of the whole person” result in order to become
eligible for general damages.
The RAF disagreed with this interpretation and on appeal the Supreme Court of Appeal have now
clarified this position, as well as a number of other related issues in the case of RAF v Duma & 3
related cases (202/12) [2012] ZACSA 169; [2013] 1 All SA 543 (SCA).
(Please note that the Supreme Court of Appeal handed down its decision on 27
November 2012 and that this was before the amendments to the Regulations that
became operative on 15 May 2013.)
12.1.3 SUMMARY: RAF v Duma & 3 related cases (202/12) [2012] ZACSA 169; [2013] 1
All SA 543 (SCA).
The following aspects were addressed by Brand JA:
• To claim any general damages a RAF4 serious injury assessment must be done. The Plaintiff must
first have the ‘AMA/WPI’ assessment done. The Court found that an assessment in terms of regu-
lation 3(1)(b)(iii) (the “narrative test”) may only be conducted after the assessment in terms of
regulation 3(1)(b)(ii) (the “AMA/WPI test”) was done.
• If the AMA assessment indicates an impairment of less than 30% “WPI” (whole person impair-
©LSSA 87
ment), AND the Injury is not on the list of non-serious injuries, it may still be a serious injury if
assessed as serious in terms of the narrative test.
• The ‘medical practitioner’ envisaged by Section 17(1)(a) and Regulation 3(1) that may do the
serious injury assessment are only those practitioners that are registered in terms of the Health
Professions Act 56 of 1974 under the “Medical and Dental Profession”. In consequence it excludes
health practitioners, such as occupational therapists, dieticians, oral hygienists, and so forth who
are registered under other professions.
• A medical practitioner must physically examine the claimant for purposes of the assessment.
• If the Fund should fail to properly or timeously reject an assertion that an injury is serious by the
third party, the rejection may not simply be ignored. Regulations 3(3)(c) and 3(3)(d), whether
or not the RAF 4 form correctly assessed the claimant’s injury as ‘serious’, constitutes ‘adminis-
trative action’ as contemplated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA). (A
‘decision’ is defined in PAJA to include the making of a determination.) If the Fund should fail to
take a decision within reasonable time, the plaintiff’s remedy is under PAJA.
[Please note; the amendment to Regulation 3(3)(dA) that became operative on 15 May 2013 now
require the Fund or an agent to accept or reject the serious injury assessment report or direct that the
third party submit himself or herself to a further assessment within 90 days from the date on which
the serious injury assessment report was sent by registered post or delivered by hand to the Fund or
to the agent who in terms of section 8 must handle the claim.]
• If the Fund rejects the assessment of the injury as “serious” that decision is not invalid if no legal
or medical basis is provided for the decision or because the court does not agree with the reasons
given. A decision by the Fund is subject to an internal administrative appeal to an appeal
tribunal. The claimant must go through the appeal tribunal.
• Neither the decision of the Fund nor the decision of the appeal tribunal is subject to an appeal to
the court. The court’s control over these decisions is by means of the review proceedings under
PAJA.
13. COURT’S APPROACH TO REVIEW OF APPEALS TRIBUNAL DECISION
13.1 HOW DOES A COURT APPROACH AN APPLICATION FOR REVIEW OF THE

APPEAL TRIBUNAL’S DECISION?
Maluka v Road Accident Fund and Others (48032/2011) [2014] ZAGPPHC 340 (11 June 2014): Appli-
cation to court ito PAJA to review of rejection by the Appeals Tribunal of a serious injury narrative test
report, after AMA test rendered only 14% WPI. Pretorius, J evaluated the actions and the decision of
the Appeals Tribunal to reject the “serious injury assessment” and dismissed the review application.
The Appeals Tribunal acted procedurally fair:

The tribunal does not have to take into consideration the powers it could exercise in terms of Regula-
tions 3(10) and (11) to call for further information. The Tribunal did not deem it necessary to call for
further investigations as the experts were satisfied that they could reach a decision with the informa-
tion available to them. It must be mentioned that the applicant failed to seek reasons for the decision
at the time that the finding was made available. In terms of section 5 of Promotion of Administrative
Justice Act he could have requested the reasons for the finding from the Tribunal.
The Appeals Tribunal acted with reasonableness and rationality:

To determine reasonableness the court has to consider the Tribunal’s decision with reference to the
record of proceedings. This decision should not be measured by the decision the court would or could
make, or to require that it must be perfect. The court cannot substitute its own views on the merits of
the applicant’s appeal to the Tribunal, unless the court finds that the Tribunal did not act reasonable
and that the finding of the Tribunal was not rational under the circumstances.
The court’s task is to ensure that the decisions taken by administrative agencies fall within the
bounds of reasonableness as required by the Constitution and the test is whether in making the deci-
©LSSA 88
sion the functionary concerned ‘has struck a balance fairly and reasonably open to him. The Appeals
Tribunal considered all information provided by the plaintiff and it provided reasons for its decision
in its answering affidavit and the reasons were not challenged in the replying affidavit.
Kasema v Members of the Road Accident Fund Appeal Tribunal Convened on 4 November 2011 and
Others (2011/47210) [2014] ZAGPJHC 281 (24 October 2014): 17 months passed between the deci-
sion of the Appeal Tribunal being communicated to the applicant’s attorneys and their subsequent
request to the same body for a review of the decision based on new medical information. A further
period of 10 months passed before the institution of the review proceedings. The Promotion of Admin-
istrative Justice Act 3 of 2000 (PAJA) prescribes in section 7(1) that an application for review must
be brought without unreasonable delay and not later than 180 days after the exhaustion of internal
remedies. This prescription is tempered by section 9, which provides for a variation in the time limits
set down in PAJA. In terms of section 9(1) read with section 9(2), a court may extend the 180 day
time limit for a fixed period “where the interests of justice so require”. The Appeals Tribunal gave
reasons for its decision and was not biased, or acted in bad faith or had an ulterior purpose or motive.
The reviewability of the Appeal Tribunal’s decision must be determined on the basis of the informa-
tion that was before it at the time. For this reason, the applicant’s reliance on the additional medical
reports obtained in 2012 and 2013 was misplaced.
The question is whether, based on the information before the Appeal Tribunal at the time, its
decision was rational and reasonable, and based on all relevant considerations. There is nothing to
indicate that it was not so. The first to seventh respondents explained in their answering affidavit
that the panel members all reviewed the medical information supplied by the applicant separately, and
they applied their own medical knowledge and expertise in analysing the information and reaching
a decision.
Mothibi v Road Accident Fund (83573/14) [2015] ZAGPPHC 50 (6 February 2015): This attempted to
review of the Road Accident Fund’s alleged failure to take a decision as envisaged in Regulation 3(3)
(c) of Fund Regulations 2008 promulgated in terms of section 26 of the Road Accident Fund Act No 56
of 1996 read together with the provisions of section 6(2)(g) of the Promotion of Administrative Justice
Act 3 of 2000. The RAF only objected to the plaintiff’s RAF4 assessment of serious injuries’ rejected
long after the 90 day period in Regulation 3(3)(dA) and did not provide reasons as foreseen in Regu-
lation 3(3)(d)(i). A claimant is not justified to by-pass the internal remedy process created in terms of
the regulations merely because no reasons were furnished by the RAF for its objection.
Van Heerden v Road Accident Fund (6644/2011) [2014] ZAGPPHC 958 (8 December 2014): The failure
to take action or make a decision is itself grounds of review, furthermore it has always been possible
to obtain a mandamus forcing a slow or reluctant administrator to take action or make a decision. In
terms of section 6 (3) PAJA where a particular period has been prescribed for the taking of a decision,
a person may institute review proceedings for failure to take the decision within the period. Must the
plaintiff therefore bring a review application for the failure of the fund to reject the RAF4 form within
90 days? They cannot, being mindful of the Duma case. The rejection of the RAF4, is subject to an
appeal tribunal, and only after such decision has been taken by the tribunal, can the plaintiff review
such a decision. If the fund only rejects the RAF4 on date of trail and did not resort to Regulation 4,
this decision thus first has to be taken to the tribunal and only after its finding it is subject to review.
Le Roux v Road Accident Fund Appeal Tribunal and Others (41191/2012) [2016] ZAGPPHC 171
(4 April 2016). Application for review of the Appeal Tribunal’s rejection of a serious injury assessment
on a RAF4 dismissed.
Plaintiff later submitted a further RAF4 by another specialist directly to the Registrar of the Health
Professions Council. This is irregular. It should have been submitted to the RAF.
The plaintiff should first have obtained all his medico-legal reports and then had to submit them
all to the RAF.
To properly constitute an Appeal Tribunal the regulations prescribe a minimum of 3 members for the
Appeals Tribunal, but no maximum limit to the amount of members. Application for review dismissed.
©LSSA 89
13.2 BEFORE AN APPLICATION FOR REVIEW, APPLICANT IS ENTITLED TO
RELEVANT DOCUMENTATION FROM RESPONDENT
Malan v Road Accident Fund Appeal Tribunal and Others (29722/12) [2014] ZAGPPHC 33 (16 January
2014): The applicant launched a review of the decision of the first respondent who dismissed the appeal
to it. A record, purporting to be the Appeal Record was subsequently delivered to the Applicant, in terms
of the provisions of Rule 53. The applicant did not supplement its founding papers as envisaged in
terms of the provisions of Rule 53, and the respondents subsequently delivered their opposing affidavit.
The Applicant contends that it became apparent, from the opposing affidavit, that refer-
ence was made to certain documents, which did not form part of the Appeal Record, and
that certain further documentation must exist, which should have formed part of the
Appeal Record, but which were not delivered to the applicant in terms of the review notice.
In this application the Applicant seeks relief entitling him to production and inspection of the docu-
ments referred to in the Notice of Motion, either in terms of the provisions of Rule 35(12) or in terms
of Rule 53(3) of the Uniform Rules of Court so that these documents can also be before the Court who
hears the main review’ application. Application granted.
See 13.2.3 however. This decision was overturned after a Petition to the SCA for leave to appeal,
but the Appeal Tribunal must still furnish a record if required to do so.
13.3 THE RAF DESTROYS THE NOTES TAKEN DURING THE APPEAL TRIBUNAL’S
SITTING
Road Accident Fund Appeal Tribunal v Malan (A1/2015) [2016] ZAGPPHC 466 (14 June
2016). The application that served before the court a quo was an application, pursuant to
the review application, to compel the appellant together with the respondents in the court a
quo proceedings, to provide a better response to the respondent’s notice in terms of uniform
rule 35(12), alternatively to provide the respondent with a proper record in terms of uniform
rule 53 (3). The Tribunal did provide the chairperson’s notes to the respondent. The personal
notes of the other members are handed to an official of the RAF who then destroys them.
The trial court rejected the evidence of Dr Engelbrecht that the notes were destroyed as hearsay, on
the error in the confirmatory affidavit of a Mr Seisa, the person who destroyed the notes, and who
erroneously did not confirm Dr Engelbrecht’s affidavit but somebody else’s.
On Appeal it was decided by a full bench:

The trial court erred in rejecting the evidence of Dr Engelbrecht that the notes were destroyed as
hearsay.
It is evident that Mr Seisa’s affidavit contained an obvious error which the court a quo ought to have
condoned.
The court a quo further misdirected itself in failing to allow the introduction of the new evidence
tendered by Mr Seisa which corrected the initial confirmatory affidavit. This new evidence ought to
have been allowed because it is material and has an important influence on the outcome of the case.
The documents requested by the respondent do not form part of the record of review. The notes
requested are not like the minutes and the discussions of the tribunal members during its sitting but
are personal notes made by the members in preparation for the Tribunal meetings. On that basis alone
the court a quo should not have ordered their production.
The Tribunal cannot produce notes that are destroyed or do not form part of record of Tribunal. The
Appeal succeeds
13.4 SEPARATE TRIALS ON DIFFERENT QUANTUM ASPECTS CAN TAKE PLACE

The determination of “serious injury” may take place for purposes of non-patrimonial loss
(general damages, while the court action may be proceeded with on the other heads of damages.
©LSSA 90
Gouws v Road Accident Fund (20217/2013) [2014] ZAGPJHC 193 (29 August 2014): Court to decide
on quantum of future loss of earnings / earnings capacity. Court informed that the question of other
liabilities, including general damages, were left to be dealt with in “another forum.” Absolution from
instance granted as his injuries, i.e. a “fracture of the right femur and mild concussive traumatic
brain injury.” were not conclusively proven to be the cause of his loss of memory and irritability.
Plaintiff served a notice to the Defendant in terms of Rule 36 (9) regarding his intention to lead the
evidence of actuarial calculations. No such evidence was led and that notice has no evidential value –
see Mkhize v Lourens and Another 2003 (3) SA 292 (T) at p. 299 and Moholi v Road Accident Fund
(unreported case no. 37401/2013) GPJ.
It was argued for the Plaintiff that in the absence of the actuarial evidence, and if the Plaintiff
managed to discharge the causation, the court would have to use the “informed guess” as held in the
De Klerk v ABSA Bank LTD and Others 2003 (4) SA 315 (SCA) judgement in calculating the loss. The
onus on causation was not discharged. But even if it was, the circumstances would be different in that
actuarial evidence was just left out deliberately by the Plaintiff, for reasons not disclosed to the court,
whereas the premise has always been to have the actuarial evidence led.
Mundalamo v Road Accident Fund (45540/2015) [2016] ZAGPPHC 453 (1 June 2016). The question
of general damages postponed sine die in order for the RAF to decide whether to refer it to the Appeal
Tribunal - court gives judgement on rest of the damages.
13.5 RAF MAY REJECT AND DISPUTE OWN EXPERT’S “SERIOUS INJURY”
ASSESSMENT
MAY THE RAF REJECT AND DISPUTE A “SERIOUS INJURY” ASSESSMENT EVEN WHEN ITS
OWN EXPERT FINDS A SERIOUS INJURY? YES.
RAF v Faria (567/13) [2014] ZASC 65 is instructive in this regard and the facts quoted hereunder
gives a clear view of what could be expected when dealing with the RAF as defendant:
The facts relating to the experts’ assessments on “serious injury”

“[4] The plaintiff suffered a head injury, having been comatose for four and a half days. In addition, he
sustained injuries to his right shoulder, which required surgery; four fractured ribs on his right hand
side; abrasions to his back, shoulder and buttocks and abrasions to his knees, wrists and hands. The
plaintiff sued the RAF in terms of the Act, claiming damages in an amount of R850 000.
[5] In its plea the RAF had disputed both the merits of the plaintiff’s claim as well as the quantum
of damages. At the trial, the RAF having had no witnesses to dispute the version of plaintiff, was found
by the high court to be liable to pay the plaintiff 100% of his proven damages. There is no dispute that
the high court was correct in this regard.
[6] In respect of the quantum of damages suffered by the plaintiff, the parties settled the claim
for past medical expenses in an amount of R217 169.94. In respect of the claim for future medical
expenses, the RAF gave the usual undertaking in terms of s 17(4) of the Act. The only remaining issues
in dispute were:
(a) the question of general damages for pain, suffering, loss of amenities of life and
(b) the issue of the loss of future earnings arising from the plaintiff’s diminished working capacity
and productivity. The plaintiff decided to subsume the claim for damages for the loss of future
earnings under the claim for general damages.
[7] The plaintiff underwent a medico-legal assessment by an orthopaedic surgeon, Dr De Graad on 30
April 2012. Dr De Graad prepared his medical-legal report on 3 May 2012. In addition, on the same
day, Dr De Graad completed a so-called RAF 4 ‘serious injury assessment’ (SIA) form (the significance
of which form will appear later). In paragraph 4 of this RAF 4 form, he assessed the plaintiff’s impair-
ment in respect of the rating of the American Medical Association (AMA) as having a combined value
for the impairment of the plaintiff’s whole person (WPI) as 4%.
©LSSA 91
[8] In terms of paragraph 5 of the RAF 4 form, which relates to ‘serious injury: narrative test’, Dr
De Graad concluded, pursuant more particularly to the provisions of subparagraphs 5.2 and 5.3 of
the form, that the plaintiff’s injuries had resulted in a permanent serious disfigurement, attributable
to extensive scarring and a negatively affected physical appearance at the right shoulder, as well as
a severe long-term mental or long-term behavioural disturbance or disorder. As a result, Dr De Graad
concluded that the plaintiff had indeed suffered a so-called ‘serious injury’, the significance of which
will also appear later.
[9] The plaintiff attended a further medico-legal examination undertaken by another orthopaedic
surgeon, Dr G J H Swartz, who had been appointed by the RAF. Dr Swartz did not complete an SIA form
but incorporated in his medico-legal assessment a reference to the AMA impairment rating, assessing
the plaintiff’s impairment rating for his whole person as 8%.
[10] Dr Swartz expressed the opinion in his report that the plaintiff did not qualify for the ‘narrative
test’ in terms of paragraph 5.1 of the RAF 4 form, which relates to long-term impairment or loss of
bodily function, but made no assessment of the plaintiff’s permanent serious disfigurement or severe
long term mental or behavioural disturbances in terms of subparagraphs 5.2 and 5.3 of that form.
[11] On 20 January 2013, however, Drs De Graad and Swartz prepared a joint minute in terms of
which they agreed that the plaintiff had suffered disfigurement and psychological problems as a result
of the scarring at his shoulder and that, accordingly, the plaintiff had suffered a ‘serious injury’,
resulting in ‘serious long-term impairment’.
[12] On 8 March 2013, the day before the trial between the parties commenced, the RAF’s attorneys
sent a letter to the plaintiff’s attorneys in terms of which the RAF rejected the RAF 4 form completed
by Dr De Graad ‘in terms of Regulation 3(3)(d)(i)’ (lot of the Regulations pertinent to this case).
[13] On 11 March 2013, a neuropsychologist, Dr A Cramer also filed an RAF 4 SIA report, pursuant
to her assessment of the plaintiff on 26 October 2012. Dr Cramer, like Drs De Graad and Swartz,
concluded in subparagraph 5.3 of the report that the plaintiff had suffered a ‘serious injury’, resulting
in ‘serious long-term impairment’.”
The SCA’s judgement in Faria’s case and the effect thereof:

• The RAF’s rejection of the RAF 4 form completed by Dr De Graad ‘in terms of Regulation 3(3)(d)(i)’
amounted to the correct procedure.
• Sub-regulation 3(3)(d)(ii) provides that the RAF may, if it does not accept or reject the plaintiff’s
experts RAF4 assessment outright, “..direct that the third party submit himself or herself, at the
cost of the Fund or an agent, to a further assessment to ascertain whether the injury is serious, in
terms of the method set out in these Regulations, by a medical practitioner or an agent.”
• Such a further assessment to be undertaken ‘by a medical practitioner designated by the fund’ may
i.t.o. sub-regulation 3(3)(e) be accepted or, if not accepted, disputed by the fund “in the manner
provided for in these regulations”. This means that the RAF not only has a right, in terms of the
Regulations, to dispute the assessment of its own medical practitioner (expert) but also has a right
to refer the dispute to the Appeals Tribunal provided for in the Regulations.
• The Fund may therefore dispute its own expert’s serious injury assessment even after a joint
expert minute. In terms of the appeals tribunal procedure must then be followed to decide the
dispute and the court may not decide.
• The SCA found that the Trial Court should have postponed the case in order to give the RAF the
opportunity to follow the administrative procedures. This finding was made despite the fact that
the RAF only rejected the Plaintiff’s expert’s RAF4 assessment the day before the trial. (In doing
so it disputed its own expert’s concession in the joint minute by implication.)
• NOTE: Subsequent to the judgement in the High Court in this matter, the Regulations were
revised. It now in terms of the revised regulation 3(3)(dA), provides that the RAF is given 90 days
within which to (i) accept the serious injury assessment report or (ii) reject the report or (iii) direct
that the third party submit to a further assessment and, in terms of revised sub-regulation 3(8)(a),
a time period for the referral of a dispute to the appeal tribunal is provided for.
©LSSA 92
The RAF has after the trial court’s judgement accidentally paid out the general damages to Faria
before lodging the appeal. The RAF then undertook during the appeal not to reclaim this money from
Faria and also undertook to pay the plaintiff’s costs in the appeal. It therefore merely sought an order
from the SCA to create legal certainty, and the SCA agreed that this is such an important legal ques-
tion that it would entertain the appeal on the legal principle.
Road Accident Fund v Khoza (65231/12) [2015] ZAGPPHC 613 (28 August 2015). Despite a RAF 4
serious injury assessment lodged with the RAF, it did not respond within the 90-day period in 3(3)
(dA). During the pre-trial the plaintiff afforded the RAF a further 60 days from the date of the pre-trial
to react to the serious injury assessment failing which the RAF agreed that the serious injury issue
would automatically be resolved in favour of the Plaintiff. Only the quantum would then have to be
determined. The RAF then again did nothing within the agreed further 60-day period. Thereafter the
RAF made an application to court to withdraw their pre-trial admission of the Serious Injury. The
application is dismissed.
LATE REJECTION OF THE SERIOUS INJURY ASSESSMENT IS VALID

Mooketsi v Road Accident Fund (RAF 244/15) [2016] ZANWHC 26 (2 June 2016). The minutes of the
pre-trial conference confirms that the entire action would be tried and no issues were to be separated.
The RAF rejects the RAF 4 serious injury assessment only 11 days before trial on 25 February 2016.
On the trial day 7 March 2016, the matter stood down for settlement negotiations on the quantum.
On 9 March 2016 the parties settled all the other aspects of the case, including the costs. But for
some reason the matter was postponed to 16 May 2016 for the determination of general damages.
Plaintiff’s counsel appeared in court on 16 May 2016 when the matter was postponed to 25 May 2016
as counsel for the defendant for the RAF was not present.
Counsel for the plaintiff applies for costs on an attorney and client scale for the appearance on 7
March 2016 and costs on the ordinary scale for appearances on 16 May 2016 and 25 May 2016. The
submissions on behalf of the plaintiff is that the RAF delayed in making a decision whether to accept
or reject the RAF 4 report.
The court dismisses this submission and confirms that as at 9 March 2016 the plaintiff had
exhausted her action, since it was clear on 25 February 2016 that the court had no jurisdiction to
assess general damages. The rejection of the RAF4 has the consequence that the action as regards
general damages would be determined by a tribunal and not by the court
The application for costs is dismissed and the plaintiff’s attorney and counsel are to pay the defend-
ant’s costs incurred in opposing the application for costs; the one paying the other to be absolved.
Bouwer obo NM v Road Accident Fund (29762/2010) [2016] ZAGPPHC 612 (29 April 2016). The trial
was set down before the lapse of the 90 day period for acceptance or rejection of the final assessment
form. The RAF4 was rejected 2 days before trial and such rejection is valid.
Therefore, a punitive costs order on the scale as between attorney and client is warranted regarding
costs wasted by the non-inclusion of the general damages, as aspect of the trial for which the plaintiff
had to prepare.
Plaintiff argues that pre-trial wording leads to interpretation that serious injury is admitted. The
court finds that it is unclear whether a serious injury is admitted by default.
Determination of the issues relating to general damages is postponed sine die and the defendant is
liable for wasted costs occasioned, by the postponement on an attorney and client scale.
13.6 3 DIAGRAMS:
The 3 diagrams below, which follow on to each other and overlap, summarises the process from
the decision to have a “Serious Injury Assessment” done, the lodging thereof with the RAF and the
dispute resolution procedure, as set out in sub-regulation 3(4) to 3(13) as follows:
SEROUS INJURY ASSESSMENT DIAGRAMS [PLEASE NOTE: The 3 diagrams on the following pages
follow on to each other and overlap.]
©LSSA 93
MMI reached: AMA guides
or
Claim will prescribe before MMI:
Reg 3(3)(b)(ii) & AMA guides
To claim non-pecuniary loss (general damages):

Serious injury assessment required: S17(1)(A)
AMA Guides ˂ 30% WPI = not serious AMA Guides 30% or ˃ WPI ONLY IF:
Reg 3(1)(b)(ii) = serious Injuries not on list of
Reg 3(1)(b)(ii) non-serious injuries
Reg 3(1)(b)(i)
___________________
OR if:
Narrative Test may now be used
Complication arose
Reg 3(1)(b)(iii)(aa)-(cc)
from injuries on list of
non-serious injuries
Reg 3(1)(b)(i)
AMA Guide guidelines to be followed:

SAMJ Vol 103, No 10(2013) - Edeling
Submit: Serious Injury Assessment

Report (RAF 4) to RAF
Before end of 5 year period from date

of accident: Van Zyl v RAF
Reg 3(3)(b)(i): may be submitted

separately from RAF1 claim form
RAF has 90 days to accept or reject

REG 3(3)(dA)
©LSSA 94
Submit: Serious Injury Assessment

Report (RAF 4) to RAF
Before end of 5 year period from

date of accident: Van Zyl v RAF
Reg 3(3)(b)(i): may be submitted RAF has 90 days to accept or reject
separately from RAF1 claim form accept or reject the serious injury
assessment report or direct that the
third party submit himself or herself
to a further assessment.
Rejected by RAF or REG 3(3)(dA)
RAF disagrees with its own expert’s
further assessment REG 3(3)(e)
Dispute declared by RAF or claimant If late, Application for condonation

(“disputant”) & lodge dispute RAF 5 REG 3(5) (a) & (c)
within 90 days with HPCSA - REG 3(4)
REG 3(4) & 3(4)(a)
Written response within 15 days
Registrar informs other party within REG 3(5)(b)
15 days - REG 3(6)
Reply within 10 days - REG 3(5)(b)
Other party has 60 days to answer

REG 7(a) & attach submissions, medical
Appeals Tribunal decides
reports and opinions - REG 7(b)
REG 3(5)(d);(g) & (e)
Registrar informs Appeal Tribunal of 3 medical

parties of the practitioners – REG 3(8)(b) Another serious injury assessment,
appointments paid by RAF – REG 3(11)(a)
REG 3(9)(a)
May require any of the Appearance before the Tribunal
Any party aggrieved by following – REG 3(11) for examination – REG 3(11)(a)
appointment – REG (9)(b)(i)
Further submissions / medical
Written motivation within reports – REG 3(11)(c); (d) (e)
10 days – REG 3(9)(b)(i)
If majority of Tribunal members considers legal
Registrar – REG 3(9)(b)(iii) argument warranted; Advise Registrar within 10
Confirms OR Substitutes days – REG 3(10)(a)
Registrar requests chair of Bar

Advocate / Attorney recommends - REG 3(10)(c)
Council / Law Society for advocate
/ attorney – REG 3(10)(b)
Hearing - REG 3(10)(e) (Legal No Hearing
representation: own costs) REG 3(10)(d)
©LSSA 95
©LSSA 96
3(2)(b) – if the RAF (of course, being competent, independent, impartial and objective) considers that
there is a reasonable prospect of an injury being classified as serious AND that the third party does
not have enough money, on the written application of the claimant, the RAF has a discretion to assist
the third party by appointing a health care provider and/or a medical practitioner to complete the
RAF4 form, at the cost of the RAF (no matter what the outcome of the assessment).
The RAF has adopted certain criteria regarding exercise of its discretion under Regulation 3(2)(b):
1. The RAF requires proof in the form of an affidavit accompanied by supporting documents that the
claimant lacks sufficient funds to obtain an assessment because it cannot be budgeted for in his/
her monthly expenses (details of financial status with reference to sources of income and monthly
expenses).
2. The RAF requires some medical proof or indication that the injury is or may be serious (hospital
records / clinical notes / medico legal reports).
3. If the RAF feels that further investigation is required, the claimant is required to sign a consent
form authorising the conduct of such further investigation.
4. Once the above has been received, the claimant will be informed of the RAF’s decision. If the
request is denied, the RAF will furnish reasons.
5. If the request is approved, the RAF makes the necessary arrangements with an appropriate medical
practitioner and informs the claimant or his/her attorney thereof.
3(3)(d) – after the third party has lodged a claim in compliance with Section 24 and the RAF 4 report
timeously, the RAF or agent must in terms of 3(3)(dA) must, within 90 days from the date on which
the serious injury assessment report was sent by registered post or delivered by hand to the Fund
or to the agent who in terms of section 8 must handle the claim, accept or reject the serious injury
assessment report or direct that the third party submit himself or herself to a further assessment.
In the event of the RAF not being satisfied with the assessment is obliged to reject the RAF 4 report,
with reasons being furnished, or have the third party examined and assessed by its own medical
practitioner.
3(5)(a) – following the 90 day time limit referred to in Regulation 3(4) and in the absence of an appli-
cation for condonation (for which no time limit is stipulated), the rejection shall become final.
3(6) – Registrar shall within 15 days of having been notified of a dispute in terms of sub-regulation
(4), or notified that condonation is granted to a disputant in terms of sub-regulation (5), inform in
writing the other party of the dispute and provide copies of all the submissions, medical reports and
opinions submitted by the disputant to the other par[r]ty.
3(7) – After being informed in terms of sub-regulation (6), the other party may:
(a) in writing and within 60 days notify the Registrar which submissions, medical reports and
opinions are placed in dispute; and
(b) attach to such notification the submissions, medical reports and opinions relied upon.
3(8)(a) – The Registrar shall within 60 days after receiving notification from the other party, or
after the expiry of the 60 day period referred to in sub regulation (7), refer the dispute for considera-
tion by an appeal tribunal paid for by the Fund.”.
13.7 WHAT IS THE DUTY OF THE ATTORNEY RELATING TO SUCH A SERIOUS

INJURY ASSESSMENT AND MEDICO-LEGAL REPORTS?
• Study and research the facts of the accident as well as the history of the claimant’s injury as well
as his pre-accident medical history that may be relevant to the assessment.
• Make sure that the medical practitioner that does the assessment is aware of all the relevant facts
as well as research the history of the claimant’s injury as well as his pre-accident medical history
that may be relevant to the assessment.
• Make sure that the medical practitioner record those facts accurately on the RAF4 Form and in any
supporting reports or medico-legal reports. If there are inaccuracies on the RAF4 or supporting
reports or medico-legal reports, discuss this with the medial practitioner and request him / her to
rectify this before you submit the RAF4 to the RAF.
• If you elect to have more than one serious injury assessment and medico-legal report done, submit
all the RAF4’s and medico-legal reports simultaneously to the RAF.
©LSSA 97
• Remember that the medical practitioner is the medical expert but that you are the legal expert.
• Stick to the facts that can be proven and do not be tempted to exaggerate as this may have dire
consequences for the attorney.
See Motswai v RAF (2010/17220) [2012] ZAGPJHC 248; 2013 (3) SA 8 (GSJ) (7 December 2012),
where Satchwell J refused to make an agreement between the parties that included a “serious injury”
and therefore general damages, an order of court. This was done on the basis that the claimant’s
medical records revealed none more than a swollen right ankle, a soft tissue injury to the right ankle
(“sti”) also recorded as a “tender” right ankle. The particulars of claim persist in the claim for general
damages by reason of a ‘serious injury’ and specify the nature and extent of such injuries to be
“fractured right ankle”. This the Judge stated, is a fabrication and an untruth. The hospital notes say
exactly the opposite – they record that an X-ray was done and there were no fractures.
The learned Judge’s view was that the attorneys are entitled to no costs at all and if the experts
had to be paid the attorneys had to pay their fees de bonis propriis, but as a result of the fact that
the parties’ legal representatives were taken completely by surprise at her reaction and judgement,
she postponed the aspect of costs in order to afford the legal representatives the opportunity to make
representations on costs.
She further indicated that the advocates would only be entitled to fees on Magistrates’ Court scale.
See further Motswai v Road Accident Fund (2010/17220) [2013] ZAGPJHC 99 (2 May 2013) where
the question of costs had been considered. Plaintiff’s attorney argued that the particulars of claim had
been drafted by a candidate attorney who probably did not analyse the hospital records properly, and
that the attorney signed the particulars of claim without checking the hospital himself.
The Plaintiff’s attorneys were ordered that no fees or disbursements may be recovered from the
Plaintiff or the RAF.
Defendant’s attorneys were ordered to pay the disbursements of experts deemed to have been unnec-
essarily instructed de bonis propriis.
Judge Satchwell’s view is that what is of great concern is that the first medical diagnosis was
ignored. If regard had been had thereto, there would have been no need for the many expert reports.”
The above-mentioned were taken on appeal by the attorneys to the SCA. The SCA held a totally
different view when it comes to the conduct of the attorneys and advocates in this matter.
Motswai v RAF (766/13) [2014] ZASCA 104 (29 August 2014):
The finding of fraud that Satchwell J made against attorney was made without a proper hearing
in open court and without the facts. As the judgement was delivered after an informal discussion
between the judge and the legal representatives in chambers the procedure was irregular and unfair.
The second judgement also failed to correct the prejudicial findings against the attorneys.
The judge’s reasoning is wrong. She drew inferences from the documents that were before her
without calling for any further evidence. In this regard our courts have stated emphatically that
charges of fraud or other conduct that carries serious consequences must be proved by the ‘clearest’
evidence or ‘clear and satisfactory’ evidence or ‘clear and convincing’ evidence, or some similar phrase.
The finding of fraud against the plaintiff’s attorney is incorrect. There is thus no proper basis to
deprive the plaintiff’s attorneys of their costs.
The critical remarks directed at the Fund’s attorneys and counsel in the first judgement were also
not warranted, nor was the censure of the orthopaedic surgeons, occupational therapists and indus-
trial psychologists who were engaged by the parties. The purpose of this judgement is to correct this
injustice to Mr Krynauw and to provide succour to the other persons who were prejudiced by the find-
ings of the high court.
The SCA set aside all the adverse costs orders.

Ketsekele v Road Accident Fund (32492/12) [2015] ZAGPPHC 308; 2015 (4) SA 178 (GP) (8 May
2015): In this judgement Bertelsmann J lambasted the lawyers of the Plaintiff for obtaining a series
of medico-legal reports for what clearly was not a serious injury, as well as the RAF’s lawyers for not
investigating the claim timeously and properly.
The lawyers then attempted to settle the case with costs on High Court scale with the inclusion
of all the expert’s costs. This happened regardless of the fact that the Plaintiff never intended to call
those expert witnesses to testify as the experts actually supported the Defendant’s case of no serious
injury.
©LSSA 98
The Court advised the parties that it regarded the manner in which this matter had been handled
prima facie as an abuse of the Court and its process and that the Court was minded to disallow all
fees of the legal representatives and experts, and to report the matter to the Law Society and the Bar
Council for investigation of the probity of the lawyers’ actions.
The matter was postponed to allow the parties to prepare submissions why such orders should not
be made. After the submissions the it was declared that neither party’s legal representatives are enti-
tled to any fees or disbursements in respect of any work or service performed in respect of the matter
and that a copy of this judgement is to be sent to the Law Society of the Northern Provinces and the
Pretoria Society of Advocates for their consideration of the ethical implications of the legal representa-
tives’ conduct in these proceedings.
Joling v Road Accident Fund (18635/2013) [2014] ZAGPPHC 761 (10 October 2014): The RAF defends
unnecessarily and the Plaintiff only gives unchallenged evidence at the trial hearing. The RAF is held
liable for Plaintiff’s damages. Attorney and client scale costs are awarded against the RAF.
13.8 SOME ADVICE ON A PRACTICAL APPROACH TO A POSSIBLE SERIOUS INJURY

CLAIM:
• An attorney must first check all the facts as far as possible for correctness and must know the
applicable law.
• The attorney must act in the best interests of his client, but he/she remains an officer of the court.
• The attorney must then make a judgement call on whether the injuries presented to him/her by
the client, the client’s complaints of possible sequelae and the effects thereof on client’s life,
together with the treating medical doctor’s opinion, point towards consequences that may include
a “serious injury” to claim for.
• The client must be fully advised of the attorney’s opinion and thereafter instructions must be
taken whether the client wants a medico-legal examination as well as a serious injury assessment
to be done.
• If the attorney is of the opinion that there is no chance whatsoever of a serious injury being
assessed, the client must be so advised. (If the attorney is wrong, he/she may well be sued later by
the client for professional negligence).
• If the client still insists on a serious injury that must be claimed for, regardless of the attorney’s
opinion that it is actually not a serious injury.
• It is prudent to then obtain at least one medico-legal report from a medical expert on the specific
type of injury. The client should be made aware of the fact that if his/her instructions are to pursue
the possibility of a “serious injury” the costs should be borne by the client if it turns out that in
the opinion of the expert it is not a serious injury.
• Unless the medico-legal report conclusively excludes the possibility of a “serious injury”, a serious
injury assessment also has to be done, the costs of which is also for the client’s pocket.
• The medico-legal will in any event be most helpful in deciding whether future medical and hospital
expenses and perhaps future loss of earnings or earning capacity may present itself. Remember
that the medico-legal report may refer to a percentage possibility of future medical and other
expenses, as well as future disability, but this is not equal to the “whole person impairment”
assessment in terms of the American Medical Associations disability guides.
• If the attorney is not in a position to do his/her work properly and timeously and/or is not expert
enough to know whether he/she is in danger of attracting a claim based on professional negligence
by advising a client against obtaining further medico-legal reports after the main medical expert
opined that the injury and its sequelae are minor, the attorney should consider referring the client
to another attorney.
• Further remember that if a medical expert erroneously found that the injury and its sequelae
(consequences) are minor, that expert may also be negligent and may be sued.
• The client is also entitled to get second opinions both on the medical aspects as well as the law,
but those would also be for the client’s own pocket.
©LSSA 99
14. COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT
130 OF 1993 (“COIDA”)
14.1 SECTION 35 COIDA

On 1 March 1994, the Workmen’s Compensation Act no 30 of 1941 was repealed by the Compensa-
tion for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”). The Workmen’s Compensation
Commissioner is now called the Compensation Commissioner and compensation for such injuries and
diseases is paid by the Compensation Fund.
In terms of Section 35 of COIDA an employee cannot sue his employer and is only entitled to
claim compensation as provided for and in terms of COIDA.
COIDA s 35
35.(1) No action shall lie by an employee or any dependant of an employee for the recovery of damages
in respect of any occupational injury or disease resulting in the disablement or death of such employee
against such employee’s employer, and no liability for compensation on the part of such employer shall
arise save under the provisions of this Act in respect of such disablement or death.
(2) For the purposes of subsection (1) a person referred to in section 56(1)(b), (c), (d) and (e) shall be
deemed to be an employer.
Section 35 of COIDA bars an employee or his dependant from suing his or her employer. This is a
statutory provision, which negates the employee’s common law right. This has the effect that the
wrongdoer, if it is also the employer, may not be held liable by the injured. The RAF may take that
same special plea and can also not be held liable by the injured.
The only recourse that this injured has would be an “injury on duty” claim against the Compensa-
tion Commissioner i.t.o. COIDA.
The effect of section 35 of COIDA remains in force where an injured is either a passenger or a pedes-
trian being injured by his employer.
14.2 WHO IS AN EMPLOYER?

It becomes important to identify who is an employer in terms of the COID Act Section 56(1)(b), (c), (d)
and (e) is applicable.
(a) an employee charged by the employer with the management or control of the business or of any
branch or department thereof;
(b) an employee who has the right to engage or discharge employees on behalf of the employer;
(c) an engineer appointed to be in general charge of machinery, or of a person appointed to assist
such engineer in terms of any regulation made under the Minerals Act 1991, or
(d) a person appointed to be in charge of machinery in terms of any regulation made under the Occu-
pational Health and Safety Act 1993.
One must therefore test whether the driver or owner of the motor vehicle is an employer of the employee
as contemplated by this extended definition of employer. A co-employee may sometimes also be an
employer because of the extended definition.
Mlomzale v Mizpah Boerdery (Pty) Ltd 1997 (1) SA 790 (C).

In terms of Section 36 of COIDA if some other wrongdoer causes an accident resulting in the employ-
ee’s injuries, then the employee has a common law claim against the wrongdoer and against the
Compensation Commissioner in terms of COIDA with the Commissioner having a right of recovery
against the wrongdoer for payments made by him to such a worker. In motor vehicle accidents the
RAF is substituted for the wrongdoer.
COIDA s 36
Recovery of damages and compensation paid from third parties
©LSSA 100
36.(1) If an occupational injury or disease in respect of which compensation is payable, was caused
in circumstances resulting in some person other than the employer of the employee concerned (in
this section referred to as the “third party”) being liable for the damages in respect of such injury or
disease-
(a) the employee may claim compensation in terms of this Act and may also institute action for
damages in a court of law against the third party; and
(b) the commissioner or the employer by whom compensation is payable may institute action in a
court of law against the third party for the recovery of compensation that he is obliged to pay
in terms of this Act.
(2) In awarding damages in an action referred to in subsection (1)(a) the court shall have regard to the
amount to which the employee is entitled in terms of this Act.
(3) In an action referred to in subsection (1) (b) the amount recoverable shall not exceed the amount
of damages, if any, which in the opinion of the court would have been awarded to the employee but
for this Act.
(4) For the purposes of this section compensation includes the cost of medical aid already incurred
and any amount paid or payable in terms of section 28, 54(2) or 72(2) and, in the case of a pension, the
capitalized value as determined by the commissioner of the pension, irrespective of whether a lump
sum is at any time paid in lieu of the whole or a portion of such pension in terms of section 52 or 60,
and periodical payments or allowances, as the case may be.
Employees as defined are entitled to compensation in terms of COIDA.

The definition of an employee provides for a person, who at the time of the accident, was in the
employ of or was acting in the course and scope of his employment with his employer at the time.
The meaning of “employ” and in particular the situation where the workman is on his way to or
from work is considered in detail in Assistent Ongevallekommissaris v Ndevu 1980 (2) SA 976 (E) with
the power and actual control of the employer playing a prominent role in the determination.
It must be remembered that a workman cannot recover more from the Commissioner than he is
entitled to claim under the common law.
Bonheim v South British Insurance Co Ltd 1962 (3) SA 259 (A);

Klaas v Union and South West Africa Insurance Co Ltd (“Uniswa”) 1981 (4) SA 562 (A).
The liability of the RAF in respect of a workman who is injured whilst a passenger, under the recog-
nised groups of passengers, would also have been limited to R25 000 less any payment made to
the workman by the Commissioner The case of Mvumvu and Others v Minister of Transport and
Another 7490/2008 [2010] ZAWCHC 105 (28 June 2010); (CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400
(CC); 2011 (2) BCLR 150 (CC) (25 November 2010) and the resultant unconstitutionality of the limi-
tations in Section 18 of the preceding legislation this limitation is no longer applicable. Where the
Apportionment of Damages Act applies, remember to apply the basic rule of apportioning first, and
then deducting the award made by the Commissioner, before determining the amount payable by the
RAF to the Third Party.
It is not compulsory for an injured to claim from the Compensation Fund in terms of COIDA and
the RAF may not force an injured to do so.
Paterson v RAF 2013 (2) SA 455 (ECP): Section 36 of COIDA cannot be used as a condition in an
undertaking. The court decided that it is clear that at best for the RAF Section 36 above would be rele-
vant where an employee had concurrent claims for compensation and damages. The trial Court would
then consider compensation already received by the employee from the Compensation Commissioner.
The important fact to note is that it is the trial Court that is compelled to have regard to the compen-
sation already paid and not the employee (applicant). It is thus not necessary for a certificate which
is for the benefit of the patient (applicant) to include a reference to what the trial Court must consider.
The Commissioner has a claim against the RAF under Section 36 of the COIDA.
©LSSA 101
The Commissioner does not stand in the position of the employee when he institutes such a claim.
He has a statutory and independent right to bring such a claim, although restricted by Section 36 of
the COIDA, which provides that the Commissioner cannot recover a greater amount than the employee
himself could have recovered, should the Act not have existed. The Commissioner cannot be regarded
as a joint wrongdoer in terms of the provisions of the Apportionment of Damages Act;
Section 36 compels a Court, when awarding compensation to a Claimant, to take into consideration
such payments as the Commissioner is likely to make, or has made to the Plaintiff worker;
If the Commissioner does not intend to institute action against the Fund, as is his right, then a Court
is not obliged to subtract the amount paid by the Commissioner to the employee from the employee’s
award, even though the Commissioner’s obligation still to pay the Plaintiff employee exists;
the term, “Compensation Commissioner” includes “the employer individually liable”, who makes no
payment of premium to the Commissioner, but registers with the Commissioner as an employer indi-
vidually liable and is directly responsible to an employee. Such employer usually indemnifies himself
against such a risk by insuring with an insurance company therefore.
Senator v Bezuidenhout 1987 (2) SA 361 (A);

Klaas v Uniswa 1981 (4) SA 562 (A);
Ngcobo v Santam 1994 (2) SA 478 (T).
S 18(2) of the RAF Act provides that where loss or damage contemplated in S 17 is suffered as a result
of bodily injury to or the death of an employee of the driver or owner of a motor vehicle, and the Third
Party is entitled to compensation under the Compensation Act in respect of such injury or death, then
the liability of the Fund in respect of such bodily injury or death of any one such employee, is limited
in total to the sum representing the difference between the amount which the Plaintiff could have
claimed from the Fund and any lesser amount to which the Plaintiff is entitled by way of compensa-
tion under COIDA.
Thus S 18(2) deals with the situation where an employee of the driver or owner of the offending
vehicle is injured or killed in circumstances rendering the Third Party entitled to compensation on the
basis that the injured person must have been an employee of the driver or owner of the guilty (insured)
vehicle and he must have been on duty at the time of his injury.
Under the current legislation: The principle is that if COIDA benefits are paid to a claimant for
personal injury or death as a result of a motor vehicle accident, the RAF may deduct whatever was
paid in terms of COIDA and is only liable for the difference between the COIDA benefit actually paid
and the proven common law damages.
Tsotetsi v Road Accident Fund (7510/2013) [2016] ZAGPPHC 463 (1 June 2016). COIDA final award
not available at trial. The RAF does not want to proceed without the final award of the Commissioner.
The Judge ruled that the matter should proceed as it is not necessary to wait for the final determina-
tion by the Commissioner with regard to the COIDA award. All that needs to be done is to inform the
Commissioner of any award made by the court when finalizing the COIDA award. It is an almost daily
occurrence in this court that matters are finalized without any final COIDA award available.
14.3 APPORTIONMENT WHEN THERE IS A COIDA CLAIM AS WELL

In determining the Plaintiff employee’s full common law damages (irrespective of the amount claimed
by him), any apportionment against his claim had to be applied against those full damages before any
COIDA benefit are subtracted.
RAF v Maphiri [2003] 4 ALL SA 168 (SCA); 2004 (2) SA 258 SCA. After the full common law damages
have been reduced through apportionment, the full amount already paid by the Commissioner is then
deducted. This full amount would be referred to as “the final award”.
14.4 EXAMPLE
Assume that the claimant was found to have been 50% negligent and had been injured on duty
in a motor vehicle accident and qualifies for COIDA benefits:
©LSSA 102
On an apportionment of 50%, the full common law damages of R24 000 are reduced to R12 000, from
which is then deducted the amount received under COIDA, namely R10 500, thus giving the Plaintiff
workman net damages of the amount of R1 500.
In this manner, the workman has not recovered more from the RAF and Commissioner combined, than
he would have recovered from a negligent party at common law.
Bonheim v South British Insurance Company 1961 (3) SA 259 (C). The Compensation Commission-
er’s claim against the RAF for that amount that the Commissioner paid to the employee is subject to
the 3 or 2-year prescription period. This proviso is also applicable to the employer individually liable.
15. BASIC ACTUARIAL PRINCIPLES

For the purposes of calculating loss of income or loss of support, the annual loss of the injured
party or the bread winner in the case of death, in terms of section 17(4)(c)(i) & (ii) cannot exceed
an amount of R 160 000 as increased quarterly by notice in terms of s 17(4A)(a). This cap had
been increased on 31/07/2016 to R 248 710.00 in GG 40175 as at the date of publication of this
manual, but it would by now have been increased even further.
Some of the conundrums with which the actuaries (and the Courts) will address are the inclusion
or exclusion from the maximum figure of income tax, contingency deductions, combined incomes of
spouses where applicable and how to apply accelerated benefits.
The basic principle of awarding damages is to place the Plaintiff, as far as a money payment can,
in the position in which he/she would have been had the delict not been committed.
Boberg The Law of Delict Vol 1 p478

General Accident v Summers et al 1987 (3) SA 577 (A) 616H.
Fair mathematics in assessing delictual damages- L.Steynberg, Potchefstroom Electronic Review
2012 (14) 2
Initially an attorney can make actuarial calculations - an actuary is however essential should the
matter go to trial.
15.1 DISCOUNTING / CAPITALIZATION FOR INFLATION

• Essential to properly assess future loss;
• Accounts for effect of inflation on the one hand;
• Takes the result of the investment of the award into account;
• Have regard to difference between the ravages of inflation and expected return on investment;
• Generally accepted difference is usually 2,5% (between 1 and 3 percent);
• Where loss is repeatable in future, investment of the award has to provide for immediate and
ongoing payment and the award needs to be capitalised;
• Where loss is a once-off loss a more flexible investment can be made and the award is discounted;
• Discount tables leads to greater reduction (assuming investment to beat inflation);
• Capitalization/annuity tables allow for lower return because of very nature of investment.
15.2 HAZARDS AND CONTINGENCIES

• The actual loss figure might be contingent upon certain circumstances;
• The longer the period covered by the calculation the greater the risk;
• The future loss is more uncertain;
• Consider the following factors in establishing a fair percentage:
©LSSA 103
Employment record;
Possibility of retrenchment;
Educational qualification;
Sequelae of injuries.
See Newdigate & Honey, Appendix viii.
15.3 TAXATION
• The tax saving, alternatively additional tax burden to be taken into account.
Sigourney v Gillbanks 1960 (2) SA 552 (A) 568;

Snyders v Groenewald 1966 (3) SA 785 (C) 789;
Oberholzer v Santam 1970 (1) SA 337 (N) 342.
• Certain medical expenses may be tax deductible or tax exempt;
• Lump sum compensation for loss of income regarded as capital.
15.4 RE-MARRIAGE PROSPECTS

• Statistics;
• Burden of children;
• Attractiveness;
• Prospect of second marriage lasting;
• Financial prospects of second husband.
Burns v NEG 1988 (3) SA 355 (C).
15.5 MORTALITY
• Use of life tables - Newdigate & Honey and De Rebus, November 1986.
15.6 PAST LOSS OF EARNINGS / EARNING CAPACITY

• Loss of earning power;
• Everson Principle (reversed).
S A Eagle v Hartley 1990 (4) SA 833 (A).
15.7 FUTURE LOSS OF EARNINGS / EARNING CAPACITY

• Res inter alios acta; (the collateral source rule);
• Taxation;
• Prospects for promotion;
• Retirement age;
• Discount rate;
• Contingencies / hazard deductions;
• Lost earning capacity;
• Early retirement;
• Pension award.
Southern Insurance v Bailey 1984 (1) SA 98 (A);
©LSSA 104
Legal Insurance v Botes 1963 (1) SA 608 (A):

Fulton v Road Accident Fund (2007/31280) [2012] ZAGPJHC 3; 2012 (3) SA 255 (GSJ) (1 February
2012): When a third party intervenes and make payments to the plaintiff out of generosity or benev-
olence or charity, the collateral source rule comes into play. Ultimately this rule states that such
payments are res inter alios actae and must be disregarded when quantifying the damages. One of the
reasons behind this is the reluctance on the part of the law to allow the “wrongdoer” to benefit from
the acts of kindness of another unrelated party;
Coughlan NO v Road Accident Fund (CCT160/14) [2015] ZACC 9; 2015 (4) SA 1 (CC): Foster child
grants are not deductible.
15.8 LOSS OF SUPPORT

• Basis of the claim for loss of support is the existence of a legal duty owned by the deceased to
provide support;
• The Common law has been developed to recognise a duty of support enforceable against a third
party in other relationships where a deceased had voluntarily assumed such a role and was held
to have tacitly agreed to support the dependents.
Vaughan v S.A. National Trust 1954 (3) SA 667 (C);

Ntsele v A.A. Mutual 1980 (3) S.A. 441 (C);
Marinda N.O v Road Accident Fund (2013/22829) [2014] ZAGPJHC 229 (26 September 2014);
Zenobia v Road Accident Fund (2013-03860) [2015] ZAGPJHC 144 (23 July 2015).
• Re-marriage of widow does not extinguish her claim but must be considered when her loss is
calculated;
• Child’s adoption subsequent to death of parents does not extinguish claim;
• Where a deceased divorced man tacitly agreed to support his ex-wife’s child born out of wedlock.
Constantia v Victor 1986 (1) SA 601 (A);

Lebona v President 1991 (3) 395 (W);
Du Toit v General Accident 1988 (3) SA 75 (D);
Ongevallekommissaris v Santam 1999 (1) SA 251 (SCA);
Legal Insurance v Botes 1963 (1) SA 608 (A): the following are relevant to the possibility of remarriage
of a widow: age of the widow; her character and appearance: the length of her [oddly stated, happy]
marriage to the deceased; whether she is already intimately involved; her point of view on marriage;
R v Road Accident Fund (20179/2013) [2014] ZAGPPHC 987 (15 December 2014): Factors considered
relating to the re-marriage contingency deduction: she does not go out; she is an introvert and she
actually met the deceased when she was 18 years and had then never had a relationship. The plaintiff
has not entered into a new relationship, although she is not opposed to the idea. Her view is that if a
marriage to someone will happen, it would happen. It was also contended that as a 37 year old widow
with an 8 year old son her chances may be significantly diminished. Court applies a 20% re-marriage
contingency deduction to her loss of support claim;
S and Another v Road Accident Fund (19993/2013) [2014] ZAGPPHC 1028 (12 December 2014): The
underlying rationale for the duty of support does not lie exclusively in the institution of marriage. The
boni mores of the community have developed to recognise its existence, and for good cause one may
add, in other forms of relationships albeit under specific and defined circumstances, where the domi-
nant feature is the nature of the partnership between the parties rather than purely the legal form of
their relationship. That being the case and if the contingency is to have continued relevance, it may be
more fitting and appropriate to refer to it as either a re-partnering contingency or a prospective duty
of support contingency as that is what I understand is precisely what the nature of the contingency
is intended to capture and consider. Under such circumstances and given the reciprocal nature of the
duty of support that arises between spouses and that may arise between parties in other relation-
ships, it cannot be said that if the contingency is applied then in its conception it unfairly discrimi-
nates against women. The duty of support rests with both parties and is gender-neutral in that sense.
©LSSA 105
There is no reason why the court cannot also apply it to men. It may be more appropriate to refer to it
as either a re-partnering contingency or a prospective duty of support contingency as that is what the
nature of the contingency is intended to capture and consider.
Re-partnering as a contingency deduction in claims for loss of support – Comparing South African and
Australian Law. L.Steynberg, Potchefstroom Electronic Review 2007(3)
• Illegal income.
Santam v Ferguson 1985 (4) SA 843 (A);

Metro v Ross 1986 (3) SA 181 (A).
• Loss of income capacity based on illegal income. Legal and policy considerations prohibits an
award of damages.
Heese NO v Road Accident Fund 2014 (1) SA 357 (WCC).
Ulrich Hans Peters, a 51-year-old German national, was injured in a motor-vehicle accident in South
Africa in which he suffered brain damage which rendered him permanently unemployable. The plain-
tiff, Heese, acting in her capacity as Peters’ curatrix ad litem, claimed compensation from the Road
Accident Fund. In contention was Peters’ was claim for loss of future earnings (or earning capacity)
of €10 million. Apart from running a successful magazine-subscription business in Germany, Peters
lacked any professional or technical qualifications or experience. Moreover, his business was run on
a massive fraudulent tax-evasion basis, with Peters over the years having under-declared his earnings
and claimed fictitious expenses amounting to millions of marks (subsequently euros).
The trial court found that there was no realistic possibility of Peters’ starting a business in South
Africa and that he would have returned to Germany because it would not have been feasible for him
to run his business remotely. But, said the court, Peters’ earning capacity would have been completely
sterilised by impending criminal sanctions by German tax authorities.
In an appeal to a full bench -

Plaintiff’s business would likely have failed anyway. Plaintiff is unable to prove patrimonial loss
associated with loss of earning capacity. No claim for loss of earning capacity. Exploitation of earning
capacity is contingent on commission of illegality. Legal and policy considerations prohibits an award
of damages.
• Illegality of earnings may be a factor to consider as an inhibition or an inherently diminishing
factor of a capacity to earn but is not an instant disqualifier for consideration of the loss.
Masiza v Road Accident Fund (28354/2012) [2014] ZAGPPHC 329 (23 May 2014).
The Defendant’s argument that the Plaintiff’s alleged income should not be considered at all as it
was illegal is however misguided. The illegality of his earnings may be a factor to consider as an
inhibition or an inherently diminishing factor of his capacity to earn but not an instant disqualifier
for consideration of the loss; see Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA
146. Masiza’s claim for future loss of earnings was dismissed, as the plaintiff’s current earnings
surpassed the annual cap.
• Widow mitigating her loss.
Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A).

• Widow’s earnings prior to death.
WCC v Santam 1965 (2) SA 193 (T);

Milns v Protea 1978 (3) SA 1006 (C);
Santam v Fourie 1997 (1) SA 611 (A).
15.9 LOSS OF SUPPORT CLAIMS - APPLY THE FOLLOWING:

• Tax saving
• Capitalization / annuity
• Statistical prospects of death
©LSSA 106
• Reduced life expectancy

• Hazard and contingencies as -
- joint expectation of life;
- prospects of divorce
- re-marriage
- birth of further children
- pre-existing injuries.
15.10 LOSS OF SUPPORT CLAIMS - BY PARENTS

Pike v Minister of Defence 1996 (3) SA 127 (CK);
Jacobs v RAF 2010 (3) SA 263 (SE).
16. PREPARING, HANDLING AND FINALISING CLAIMS
16.A AN OVERVIEW
There are a variety of approaches, which can be adopted to deal with this important practical aspect
of MVA claims. This topic, for the sake of clarity and convenience, is “compartmentalised” into:
1. “First” consultation (the taking of instructions)
1.1 preliminary enquiries (do I take on the matter?)
1.2 the client
1.3 merits (liability)
1.4 information required
2. Steps to be taken after initial consultation
3. Information gathered
4. “Second” consultation
4.1 merits
4.2 quantum
4.3 serious injury: general damages and AMA assessment?
5. Finalisation of claim form and “third” consultation
6. Lodging claim and RAF1 and lodging RAF4
7. Settlement negotiations
8. Drafting pleadings in MVA matters
A helpful summary is contained in the following flowchart.

NEW INSTRUCTION:
CONSULTATION (Open File)
1. Locus Standi 2. Merits 3. Quantum
(Who can claim?) (Does Injured have a claim?) (How much can be claimed?)
ID Obtain Road Traffic Collision Report (date, First treating Dr (statutory medical report)
time, place, Driver, Registration, how it hap- G.P. pre-existing condition
Marriage Certificate pened) Clinical records
Certificate regarding customary union
Birth Certificates Inspection in loco “Serious Injury” Assessment?
Death Certificates Consult driver / owner Certificate of Service
Eye Witnesses Hawker’s Licence
Case Law Obtain medico-legal reports
Material Damage Recovery Compensation commissioner details if ap-
Inquest plicable
Criminal Investigation All Vouchers
CLAIM FORM – RAF1 SERIOUS INJURY ASSESSMENT FORM –
(How to complete the claim form) RAF 4
©LSSA 107
16.1 “FIRST” CONSULTATION (THE TAKING OF INSTRUCTIONS)
Know and understand the requirements of the RAF Act, be thorough, take your time to avoid having
to revert to your client for details, which you ought to have obtained at the outset.
16.1.1 PRELIMINARY ENQUIRIES (DO I TAKE ON THE MATTER?)

• Afford your client and yourself the opportunity of establishing up front whether the claim is
worthwhile.
• Has the claim prescribed? – date of collision – hit and run – reason for any undue delay in client
seeking advice.
When taking over an MVA claim from another firm at the request of the client, first establish the
following:
• Are you certain of the correct date of the collision?
• What is the current status of the claim i.e. has the claim been lodged and/or summons issued;
and if not, when you finally receive the file will you have enough time to gather all the necessary
information, or will it prescribe in your hands?
• Avoid accepting a mandate if you have insufficient time to lodge.
• You can also contact the RAF for more information.
(Risk Alert, August 2002)
• Have regard to the essential requirements of Section 17(1) of the Act.
• Was client a pedestrian, driver or passenger?
• Remember the ramifications of the Apportionment of Damages Act. Keep in mind the economic
viability to the client and yourself of proceeding with a claim.
• Balance the severity of the injuries against the prospects of proving negligence.
• If the injuries are serious and the merits uncertain, recommend that your authority is limited to
gathering evidence and furnishing an opinion on the merits before you incur the additional legal
costs relating to quantum.
16.1.2 THE CLIENT

You are referred to the Chapter on locus standi. Ensure that whoever instructs you has locus standi or
is properly authorised on behalf of the injured person. You do not want to find yourself in a position
where you have done work and the victim who has consulted some other attorney denies that the
person who approached you was authorised.
Establish a good working relationship with your client. Make photocopies of the first page of your
client’s identity document and all other relevant documents such as birth certificates, death certifi-
cates, marriage certificates, hospital cards.
It is the responsibility of the attorney to verify wherever possible by reference to supporting docu-
mentation the information furnished by the client.
A cause of sour attorney and client relationships is lack of communication. Attorneys fail to explain
to their clients the work involved, the delays expected, the basis on which their costs will be charged
and paid, the difference between party and party and attorney and own client costs.
The attorney should be able to estimate the disbursements, which are likely to be made and convey
clearly to the client the liability for those disbursements and fees together with a mutually acceptable
method of payment.
Clients should be cautioned not to make statements to any person other than the attorney and
the police.
Instruct client to retain supporting vouchers in order to recover out-of-pocket expenses.
Where appropriate, it is useful for client to keep a diary recording the salient developments regarding
pain, treatment and recovery. It is of the utmost importance to ensure that you have a reliable postal
address and you are able to make telephonic contact with your client on short notice. In many instances
clients are illiterate and their addresses insufficient for postal delivery services. (Risk Alert 6 of Jan 1996).
©LSSA 108
In Mazibuko v Singer 1979 (3) SA 258 (W), the candidate attorney (CA) could not get hold of the client
to sign an MVA claim form. Shortly before the prescription date, the CA wrote to the client to call on
the attorney and sign the claim form. The client did not respond and the claim prescribed.
Colman J said at page 264:

“the vagaries of the postal service are well known and an ordinary competent attorney might well have
foreseen that the communication addressed to an African Township during the month of December is
quite likely to be delayed as to go astray… If necessary, the CA should have taken a taxi to Soweto
during the final few days of the prescriptive period or he should have completed and attested the form
MVA 13 himself.” [Risk Alert, April 1995)
The fact of annual strikes and non-service delivery by the SA Post Office should also be considered. It
is prudent to obtain the contact detail (especially electronic details) of friends and family of the client
during first or second consultation to be used later as alternative communication means should the
attorney not be able to get hold of the client.
If a matter is in danger of prescribing a tracing agent should also be employed to locate the client.
16.1.3 MERITS (FAULT)

Depending on how soon you are consulted after the collision consideration should be given as to
whether it is likely that there will be evidence available at the scene of the collision, which can
be captured by way of photographs. Consideration must be given regarding the stage at which an
inspection in loco is to be held. A trial in a motor collision case should never be conducted without
having held an inspection in loco. It is good practice to have an inspection in loco with your client
and witnesses before finalising your client’s affidavit in terms of Section 19(f)(i), which is submitted,
and the witnesses’ statements. It is highly recommended that this inspection takes place as soon as
possible after the accident and at the time of day corresponding to the time that the accident occurred.
It would also be helpful if the weather conditions are more or less the same. Photographs of the scene
must be taken, as the scene may change while the claim is being processed.
The account of the accident given by your client must be tested against the version given by
witnesses and whatever documentation is available from sources such as the police, criminal prose-
cutions, inquest records, material damage claims, hospital and ambulance records.
Remember at the end of the day, irrespective of how serious the injuries are, if negligence cannot
be proved, there is no claim. As soon as you become aware that your client does not have a reasonable
prospect of success, you should advise your client as your client must be afforded the opportunity of
dealing with any discrepancies.
In the unreported judgement by Swain J. on 13 September 2007 in the Kwa Zulu–Natal High Court
between Ngubane v RAF under case no. 1461/2004 he referred to National Employers General
Insurance v Jagers 1984 (4) SA 437 (E) and stated:-
“The versions are therefore mutually destructive and it is trite that the plaintiff, in order to succeed,
has to satisfy the court on a balance of probabilities that his version is true and accurate and therefore
acceptable, and that the version advanced by the defendant is false and falls to be rejected. In deciding
whether the evidence is true or not, the Court will weigh up and test the plaintiff’s allegations against
the general probabilities. The credibility of a witness is therefore inexplicably bound up with a consider-
ation of the probabilities of the case. If the balance of probabilities favours the plaintiff, then the Court
will accept his version as being probably true. If, however, the probabilities are evenly balanced, the
plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is
true and that the defendant’s version is false.”
“Res ipsa loquitur”

The most instructive judgement of Jones J. in the appeal case of ROAD ACCIDENT FUND v MEHLO-
MAKULU 2009 (5) SA 390 (E) in the Eastern Cape Division under case no. 377/2008 on 19 February
2009 follows as a practical illustration, supported with the relevant case law, as to how this often
misunderstood doctrine is applied.
Res ipsa loquitur - Application of maxim – It is not of general application. The application must not
to be extended to any kind of occurrence to which it is not intended to apply. It may apply where the
©LSSA 109
cause of damage is unknown, but where the fact of the occurrence giving rise to the damage, without
more, compels the inference that it would probably not have happened without negligence on part
of defendant. The maxim may not be invoked merely because vehicles collide with one another on a
national road. It may, however, be invoked where vehicles which have collided on national road create
obstruction in roadway which is allowed to remain there.
The respondent brought an action in the High Court for compensation from the appellant (the
Fund), in terms of s 17 of the Road Accident Fund Act 56 of 1996, for bodily injuries he sustained in a
motor vehicle collision. The facts were that two insured vehicles collided with one another on a curve
in the national road at night-time without lights (the first collision) and, as the respondent’s vehicle
entered the curve, it collided with the stationary insured vehicles (the second collision). The drivers of
the insured vehicles died on the scene. The particulars alleged that the drivers of the insured vehicles
were negligent in: (1) causing the first collision, and the second collision was a direct consequence
of the first collision; alternatively, (2) causing their vehicles to be, and to remain, a hazardous and
unlighted obstruction on the roadway. The court a quo invoked the res ipsa loquitur maxim and
found that the drivers of the insured vehicles had been negligent in causing the first collision. On that
basis, the court made a declaratory order that the appellant (the Fund) was liable to compensate the
respondent for his injuries. The appellant appealed to a full court of the same Division of the High
Court against that order.
Held, as to (1), that the court a quo had erred in invoking res ipsa loquitur. The first collision was
not a case where the plaintiff could establish a prima facie case of negligence by merely proving the
occurrence of the first collision. It was neither proper nor logical to infer negligence merely because
two motorvehicles collided on a national road, and certainly not by invoking res ipsa loquitur: the
maxim was not of general application. The present case was one of those instances where the mere
occurrence of the accident did not imply negligence: it was not self-evident that, merely because two
vehicles collided with each other, the person in control of one or the other of them had to have been
negligent. (Paragraph [9] at 394F - H.)
Held, further, that the conclusion of the court a quo, that because the defendant (appellant) had not
told the full story, the first collision had necessarily been caused by the negligence of one or other or
both of the drivers involved in the first collision, had to be rejected. (Paragraph [10] at 396E.)
Held, further, as to (2), that the alternative fact upon which negligence was alleged, namely the
presence of a hazard in the roadway, was, however, clearly an occurrence of which it could properly be
said: res ipsa loquitur. (Paragraph [11] at 396I/J.)
Held, further, on the alternative, that a prima facie inference of negligence arose res ipsa loquitur,
(a) from causing such an obstacle to be in the middle of the road at night, and (b) from allowing it to
remain there. There was nothing at all before the court to displace the inference of negligence from
(a), and insufficient information to displace the inference from (b). Therefore, there was no evidential
basis for not drawing the most probable inference, namely, that the hazard came to be and remained
in the roadway as a result of the negligence of one or the other or both of the drivers for whose
wrongful conduct the Fund was liable. (Paragraph [15] at 399B - D.) Appeal dismissed.
It is essential to advise client clearly and unambiguously when his case has poor prospects of
success. This should be followed up by written confirmation pointing out the prescription date and
the legal consequences of prescription. The client should also be advised to seek a second opinion.
16.1.4 INFORMATION REQUIRED

The client will have to furnish written consent for you to obtain medical information and make such
information available to the RAF. The police has got their own forms on which your client will have
to authorise the station commissioner to furnish your client and/or you with a copy of any affidavit
or statement made to the police. It can be obtained from the SAPS and must be signed by your client.
Each person that made such an affidavit or statement to the SAPS must fill out and sign a separate
form.
Form 1 which is an annexure to the Regulations to the RAF Act and the prescribed form referred
to in Section 24 of the Act being the claim form and preliminary or statutory medical report is self-ex-
planatory to a great extent and serves as a useful check list when filled out in draft at the first consul-
tation.
©LSSA 110
16.2 STEPS TO BE TAKEN AFTER INITIAL CONSULTATION

• Write to client acknowledging instructions, outline procedure, confirming arrangements relating
to costs and calling for missing information.
• Write to the police to obtain a copy of the collision report, plan and key and your client’s state-
ment. An example of a comprehensive letter to the police is set out hereunder:
Your reference
Our reference
6 February 2015.
THE STATION COMMISSIONER

SOUTH AFRICAN POLICE
PRIVATE BAG
2455 VREDE
Dear Sirs
OUR CLIENT : ....................................................................

ACCIDENT : 10 OCTOBER 20.
PLACE OF ACCIDENT : N3 HIGHWAY NEAR VREDE
VEHICLES INVOLVED : DZZ483GP, JNZ923GP AND NMV265GP
1. Please let us know what documents are available in connection with the above collision and the
costs thereof.
2. If, for any reason, it is not possible to let us have copies of the report, plan and key, kindly
furnish us with:
2.1 the name and address of the driver of each vehicle;
2.2 the names and addresses of any witnesses;
2.3 the registration letters and numbers of each vehicle.
3. Kindly let us know whether any criminal prosecution was instituted, and if so:
3.1 who was the accused?
3.2 when and in what court was the matter heard?
3.3 what was the case number?
3.4 what was the result of the prosecution?
4. Kindly inform us also whether anyone involved in the collision was fatally injured, and whether
an inquest was held.
If so:
4.1 when and in what Court was the inquest conducted?
4.2 what was the inquest number?
5. We believe that our client made a statement to a member of your Station, and we require a copy
thereof. To this end we enclose our client’s consent.
6. Kindly let us know what the cost of obtaining such a copy would be.
7. Would you also kindly confirm that you will not destroy your docket pertaining to the investi-
gations done in this matter, pending the outcome of any civil action which we may institute for
and on our client’s behalf. A copy of this letter is enclosed for attachment to the outside of the
docket.
8. We thank you for your assistance herein, and look forward to hearing from you.
Yours faithfully
MR X ATTORNEY
©LSSA 111
Refer to Makhatini v RAF [2002] 1 All SA 413 (A) for the circumstances under which a police report
(which generally is a classic example of hearsay evidence) was admitted in terms of the Evidence
Amendment Act.
• Apply for a transcript of the criminal record and where applicable, the inquest record.
• When your client resumes employment, apply to your client’s employer for a certificate relating
to your client’s loss of income. The employment certificate for completion by the employer is
provided.
EMPLOYMENT CERTIFICATE
(NOTE: Please take utmost care when completing this form. Errors or omissions may result in substan-
tial financial loss being suffered).
1. EMPLOYERS DETAILS:
a) Name and address of employer: ………………………………………………………………………
…………………….…
b) Telephone number: ……………………………………………….……………………………………
………………………
c) Name of officer completing this form: ……………………………………………………….………
………………………….
d) C a p a c i t y : … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … …
………….………………….……
2. EMPLOYEE’S DETAILS:
a) Name: ……………………………………………………….…………………………………………
……………………………
b) Employee number/ID/code (if any): ……………………………………………………………………
…………………………
c) Date commenced employment with firm: ……………………………………………….……………
…………………………
d) If not still employed at firm, specify: -
I) Date terminated: …………………………………………………………………………………
………………………………
ii) Reason: …………………………………………………………………….……………………
……………………………….
e) Date of accident: ………………………………………………………………………………………
…………………………….
f) Dates not present at work due to injury:
From ……………………………….to……………………………….
From ……………………………….to……………………………….
From ……………………………….to……………………………….
g) Date on which employee was able to fully resume duties:
……………………………….…………………………………….
h) Did your employee receive any compensation whilst off duty, and if so, what amounts did he/
she receive?
……………………………………………………………………………………………………………
…………………………..
i) If any, kindly indicate which of the following applies:-
i) Was the amount paid as a matter of Goodwill/Act of charity/Generosity:
Yes/No
ii) Was the payment obligatory/was your company obliged by contract to pay:
Yes/No
ii) Was any payment received from the Workmen’s Compensation Commissioner:
©LSSA 112
Yes/No
If yes, what amount? R……………………………………………………………………
……………………………………….
i) Did employee submit medical certificate(s) of period of absence?......................................
.....................
3. BEFORE ACCIDENT:
a) Nature of occupation:
b) Future prospects of promotion had employee not been injured (specify, giving likely dates of
promotion, likely positions and likely salary).
Likely position:……………………… Date:………………salary/wages:………………
Likely position:……………………… Date:………………salary/wages:……………....
Likely position:………….................. Date:………….......salary/wages:……………....
Likely position:………….................. Date:………...........salary/wages:………………
c) Remuneration and benefits:
i) Gross salary……………………. per hour/day/week/month
Nett salary………………………. per hour/day/week/month
ii)
Full year prior to accident Full second yearprior to accident

(for the year) (for the year)
Basic gross salary R p.m R p.y. R p.y.
Overtime (average) R p.m R p.y. R p.y.
Bonus/allowance R p.m R p.y. R p.y.
Benefits in kind R p.m R p.y. R p.y.
House/Rent subsidy R p.m R p.y. R p.y.
Car/travel allowance R p.m R p.y. R p.y.
Other benefits R p.m R p.y. R p.y.
Lump sum benefits R p.m R p.y. R p.y.
paid (if any)
d) If any of the above benefits have been paid either gratuitously or as a special Act of charity,
please explain and identify: ……………………………………………………………………………
………………………………………………………….
e) Likely retirement age had client not been injured: …………………………………………………
4. PENSION/PROVIDENT FUND:
a) Percentage of contribution of basic salary/wage by employer:. . . . . . . %
b) Percentage of contribution of basic salary/wage by employee:. . . . . . %
c) Formula by which pension amount is calculated:
Years service x ……….% x salary over last …………years.
DATED at …………………………..............on this ………..day of ………………………20………..

This certificate is issued without prejudice and is not valid unless it is signed by an authorised official
of the Company and bears the Company’s official stamp.
NB! When you write for information concerning your client (such as letters to the police, the hospital
the employer) ensure that whatever references you may have or be able to obtain for the recipient of
the letter are quoted in order to facilitate matters.
The claim form must be sent to the medical superintendent or the treating medical practitioner to have
the statutory medical report completed together with a letter of authority worded along the following
lines:
©LSSA 113
TO WHOM IT MAY CONCERN
I, the undersigned :……………………………………………………………………………………………
DO HEREBY AUTHORISE AND EMPOWER:

………………………………………………………………………………………......................................
or their duly authorised representatives to have access to and to inspect all the records concerning
the injuries sustained by me in the collision on .......................... 20., relating to my treatment with the
further authority to make copies of any such documents as they may decide.
DATED at JOHANNESBURG this ….... day of ..........…… 20....….

AS WITNESSES: SIGNED:
1. ____________________________________________ ___________________________________
2. ____________________________________________
16.3 INFORMATION TO BE GATHERED

• Police documents – report, plan and key, statement of client and / or witnesses.
• Apply for the certificate of ownership of the “offending” vehicle.
• Transcript of record of criminal proceedings.
• Inquest record, including post-mortem report.
• Employment certificate.
• Statutory medical report.
• Comprehensive insurance file.
• Hospital and ambulance records.
Sometimes attorneys are faced with a situation where the hospital records necessary for the preparing
and lodging of the claim cannot be found at the hospital concerned. The fact that the hospital records
cannot be found does not mean that the claim cannot proceed. Written confirmation from the hospital
concerned that the records have been lost should be obtained (preferably by way of affidavit) and this
should be lodged timeously with the rest of the claim.
Also take note of s 24 (act 56/1996) which states that if the medical practitioner or superintendent
concerned fails to complete such medical report on request and if there is the danger of prescription,
then the medical report may be completed by another medical practitioner who has fully satisfied
himself regarding the cause of the death or the nature and treatment of the injuries in respect of which
the claim is made.
Where client does not have all the vouchers, copies may be obtained from client’s medical aid or
the suppliers.
16.4 “SECOND CONSULTATION”
16.4.1 MERITS
Consider and canvass with client or witnesses all documentation received.
Any important variations in instructions should be recorded especially regarding whether or not
the matter should be proceeded with in the face of poor merits.
• Inspection in loco with client and witnesses.
• Photographs of scene of collision.
• Sketch plan.
©LSSA 114
16.4.2 QUANTUM
Consider with client the contents of the statutory medical report.
The statutory medical report may not fully reflect the nature and extend of your client’s injuries. In
that event your client should be referred to an appropriate specialist to furnish a comprehensive medi-
co-legal report. The type of specialist required and the medical terminology relating to the skeleton
appear from the diagrams to follow.
Consider and advise client on the prospects of claiming general damages as a result of the exist-
ence of a “serious injury” and whether the Serious Injury Assessment Report must be done– RAF4.
Take into consideration the list of non-serious injuries in the regulations, whether “complications”
exist and the viability of such a claim.
Remember that although you may have an expert legal opinion based on your knowledge and expe-
rience about the seriousness of the injury, only a medical expert will be in a position to do the AMA
assessment and / or the “narrative test” to ascertain for certain whether a serious injury as envisaged
and defined by the act and regulations actually exist.
Use the picture hereunder to ascertain which medical experts may have to be instructed for medi-
co-legal reports. Medico-legal reports are useful in the support of the “narrative test” for general
damages, but will also be used to ascertain whether future medical and hospital expenses will have
to be incurred and will also address the possibility of future loss of earnings and earnings capacity.
16.4.3 WHICH EXPERTS TO USE?

Look at the sketch of the skeleton below – it will help you to ascertain which experts may be of use to
you for purposes of medico-legal reports and Serious Injury Assessment Reports.
©LSSA 115
Ensure that the extent of your client’s injuries and the long term consequences are made known to the
RAF by way of one or more comprehensive medico-legal reports, photographs of any disfigurement
and even a video tape recording where appropriate. Go over and explain medico-legal reports to your
client and canvass any discrepancies.
Consideration must be given regarding the necessity of an actuarial report for the calculation
of future medical expenditure or future loss of earnings or a dependant’s claim for loss of support.
Vouchers in support of claims for hospital and medical expenses should be checked.
©LSSA 116
16.4.4 SKETCH: A WHOLE SKELETON
©LSSA 117
16.5 FINALISATION OF CLAIM FORM AND “THIRD” CONSULTATION
Prepare a draft index of the set of documents, which will be lodged with the RAF to serve as a checklist
and thereby identify any outstanding requirements. An example of an index is provided hereunder:
INDEX
Formal documents
1. RAF1 Claim forms for:

1.1 W J Dominik together with medical report
1.2 T M Dominik together with medical reports by:
1.2.1 D M Thompson
1.2.2 S N du Toit.
2. Certified copies of identity documents of both claimants.
3. Letters of Authority for access to records by:
3.1 W J Dominik
3.2 T M Dominik.
4. Certified copies of birth certificates of:
4.1 Tristan Celewych Dominik
4.2 Chantelle Celewych Dominik.
5. Certified copies of proof of notice of death, medical certificate in respect of death and death
register relating to:
5.1 Tristan Celewych Dominik
5.2 Chantelle Celewych Dominik.
Merits
6. Inquest Record.
7. Road Traffic Collision Report.
8. Affidavits by:
8.1 W J Dominik
8.2 T M Dominik.
9. Statements by L Celewych to:
9.1 South African Police Services
9.2 Prestasie Brokers.
10. Certificates/correspondence relating to ownership of NMR 4230 and SDF 586GP.
Quantum
11. Medico-legal report by S N du Toit in respect of T M Dominik.
12. Eight photographs of disfigurement to T M Dominik.
13. Schedule of hospital and medical expenses for T M Dominik with vouchers.
14. Letter to T M Dominik’s employer and reply.
15. Schedule of expenditure of W J Dominik with vouchers.
Research the case law in Corbett and Honey’s book “The Quantum of Damages” as well as Christo
Potgieter’s book “The Quantum of Damages in Bodily and Fatal Injury Cases. Quick Guide: Quantum
Conversion Tables and Medical Diagrams, 2016” to prepare an opinion on the general damages. The
awards made in earlier cases have to be updated to allow for the reduced spending power of the Rand.
There are different methods for making this adjustment, namely the 10% simple interest calculation,
the RJ Koch method or applying the tables appearing in The Quantum of Damages as set forth here-
under.
©LSSA 118
16.6 CPI FACTORS TO UPGRADE HISTORICAL AWARDS FOR GENERAL DAMAGES

TO 2016 MONETARY VALUES
Year of award Factor per R1 of award Year of award Factor per R1 of award
1946 148.087 1982 18.565
1947 142.392 1983 16.373
1948 134.459 1984 14.697
1949 129.787 1985 13.020
1950 124.795 1986 10.958
1951 117.930 1987 9.282
1952 108.615 1988 8.122
1953 99.913 1989 7.200
1954 96.561 1990 6,240
1955 94.756 1991 5.447
1956 91.920 1992 4.688
1957 90.051 1993 4.275
1958 87.472 1994 3.903
1959 84.507 1995 3.552
1960 83.475 1996 3.323
1961 82.444 1997 3.307
1962 80.962 1998 2.862
1963 79.866 1999 2.626
1964 78.835 2000 2.569
1965 75.805 2001 2.401
1966 73.420 2002 2.296
1967 70.390 2003 2.007
1968 69.165 2004 1.896
1969 67.554 2005 1.877
1970 64.975 2006 1.816
1971 61.882 2007 1.735
1972 57.692 2008 1.620
1973 53.759 2009 1.453
1974 49.054 2010 1.357
1975 42.995 2011 1.300
1976 38.353 2012 1.238
1977 34.680 2013 1.172
1978 31.198 2014 1.110
1979 27.976 2015 1.046
1980 24.459 2016 1.000
1981 21.208
The figures above used CPI figures available at the time of publication and are subject to minor rounding
errors, which are insignificant bearing in mind the robust nature of determining general damages.
©LSSA 119
Examples:
1. An award of R100 000 made in 1990 is equivalent in value to an award of R624 000 made in 2016.
(R100 000 x 6,240)
2. An award of R40 000 made in 1975 is equivalent in value to an award of R1 719 800 made in 2016.
(R40 000 x 42,995)
Above table compiled by Human & Morris Consulting Actuaries in Cape Town. (Tel : 021 689 9890 Fax : 021 689 6809
Post: P O Box 15128, Vlaeberg, 8018)
Consult with client when the documents are ready to be lodged. Check the documents and in particular
the claim form, before the client signs. The amounts claimed on behalf of the client should be discussed
and client must be made aware realistically of any difficulties on liability, the possibilities of an
apportionment and a likely award for damages.
Advise client that the RAF will have 120 days within which to consider the claim and the steps that
you will take with a view to procuring a fair settlement during this time.
It is advisable to send a letter to client confirming the breakdown of the amount claimed and your
views on the prospects of success and the likely award.
16.7 LODGING THE CLAIM

Draft the covering letter to the RAF.
Lodge the claim either by hand delivery or by registered post ensuring that you have a receipt.
It frequently happens that once the claim is lodged attorneys sit back and do nothing further. This
is extremely dangerous, as the lack of response to a claim does not mean that an offer from the Road
Accident Fund is forthcoming. Attorneys must be alert to the danger of prescription at all times and
not only before lodgement.
If there is no response, the remedy is of course to issue and serve summons. (Risk Alert No 7 of
April 1996)
Further important points to note:

Attorneys should never be “lulled into a false sense of security” even if the fund refers the client for
a medico- legal examination or requests an actuarial report etc. Always be vigilant about impending
prescription.
The same applies when negotiating a settlement.
It is essential that the offer be conveyed to the client requesting authority to accept it. The relation-
ship between an attorney and a client is one of principal and agent and an attorney acting without a
mandate lays himself open to an action for damages by his principle.
It is preferable not to use a power of attorney to accept an offer. Rather canvass in depth the offer
with the client so that he/she can make a final decision as to whether it should be accepted. The door
should always be left open for a client who may be unhappy with an offer, in order that he or she may
pursue the claim further.
16.8 SETTLEMENT NEGOTIATIONS

Do not overlook the provisions of Section 22(2), which obliges the RAF to furnish the third party with
copies of the statements by the insured driver and witnesses.
The RAF has in terms of Section 24(5), 60 days from the date of lodgement of the claim within
which to object to the validity. Communicate on a regular basis with the RAF during the 120-day
period for an offer. Negotiate without binding or committing your client to obtain a fair offer.
Whatever offers are made must be conveyed to your client in the light of Section 17(3)(b) in case an
adverse order is made against your client for costs. With certain clients it may be advisable to confirm
the position in writing regarding rejected offers.
Whenever any offers are considered, be in a position to motivate recommendations by advising
client of the advantages and disadvantages if either accepting or rejecting the offer.
Take into consideration the delays and uncertainties of litigation, escalating attorney and own
client costs, loss of interest on funds, witnesses going missing, the emotional stress of testifying, the
©LSSA 120
effect of accepting a reduced offer at an early stage and to earn interest on the investment, compared
to the time period if the matter was to proceed to trial and the risks involved with the latter.
A draft bill of costs should be prepared so client can be informed as to the party and party costs
which will be recovered and the attorney and own client charges.
There should be no room for any misunderstanding and client must know the nett amount payable
to client if the offer is accepted.
After you have received final instructions in this regard, it is advisable to write a letter confirming
the settlement authorised by client.
The RAF requires written acceptance from the attorney/client before payment will be made.
A specimen “Offer and acceptance of settlement” form is provided.
The client either signs the discharge form or the attorney may do so provided the RAF is furnished
with a special power of attorney.
EXAMPLE OF A DISCHARGE FORM
16.9 EXAMPLE OF THE SPECIAL POWER OF ATTORNEY:

(Remember that the RAF1 claim form under the current legislation does not make provision for
the attorney to sign it on behalf of his client in terms of a power of attorney.)
SPECIAL POWER OF ATTORNEY

I, the undersigned
____________________________
(Identity number)
do hereby nominate, constitute and appoint (insert name of attorney)with power of substitution to be
my lawful attorney and agent in my name, place and stead:
(a) to investigate the circumstances relating to an accident which occurred on (date) at (place) when
I was injured;
(b) to obtain from the relevant hospital/s and doctor/s concerned all facts, medical reports, copies of
X-rays, accounts and details relating to my injuries sustained in the aforesaid accident;
(c) to authorise the hospital/s and doctor/s who treated me in connection with the aforesaid injuries
to make available to the Road Accident Fund the information and documentation referred to in (b);
(d) to obtain copies of any statements made by me in connection with the accident and in particular
from the South African Police Service and to this end, I waive my privileges that I may have;
(e) to sign the necessary claim form on my behalf and to determine in his sole discretion the amount
of compensation which is to be claimed on my behalf for damages;
(f) to negotiate and conclude a settlement with the Road Accident Fund in connection with the inju-
ries sustained by me arising out of the said accident;
(g) to sign the discharge form in respect of my claim for the amount of the settlement in order to
receive and recover the amounts due to me;
(h) to discuss all matters necessary for the purpose of obtaining the necessary reports abovemen-
tioned for which disbursements I shall be liable in addition to all my attorney’s fees inclusive of
VAT whether by way of attorney and client fee or otherwise;
(i) to do all that is necessary to finalise the claim for compensation and in so doing, I confirm that
this power is irrevocable.
SIGNED AT ............. on this …... day of .....…. 20., in the presence of the undersigned witnesses.
AS WITNESSES: SIGNED:
1. ___________________________________________ ________________________
2. ___________________________________________
The RAF deposits the payment directly into the attorney’s trust account.
©LSSA 121
16.10 DRAFTING PLEADINGS IN MVA MATTERS
16.10.1 JURISDICTION
Please note Ex parte Kajee 2004 (2) SA 534 (CPD) for the difference between the provisions relating to
the jurisdiction in respect of the high court and the magistrates’ court. In the magistrates’ court the
court shall have jurisdiction where the defendant “resides, carries on business or is employed within
the district” (see Section 28 of the Magistrates’ Court Act.) The court held that the Fund was not enti-
tled to consent to jurisdiction in respect of a court which does not possess jurisdiction as the accident
in the Kajee case occurred outside jurisdiction of the Cape of Good Hope Provincial Division. Bear in
mind the provisions of Section 15 (2) of the Road Accident Fund Act whereby the court in which the
collision occurred has jurisdiction.
Nongovu v RAF 2007 (1) SA 59 (T): the RAF does not have a principal place of business at each
branch office.
Don’t leave the service of a summons too near the date on which the claim prescribes. Always
allow as much time as possible for any oversights to be rectified without the additional worry of
prescription intervening.
Always follow up as to whether summons has been served as delays also occur in the Sheriff’s
offices for which you as the attorney may be held liable.
Attorneys having the right of appearance in the High Court when signing particulars of claim must
bear in mind the requirements of the Rules of the High Court with particular reference to Rule 18 (10)
which is quoted hereunder. An attorney signing pleadings in any division of the High Court must
make sure that he / she has a certificate of right of appearance issued by the Registrar of that specific
division of the High Court.
‘High Court Rule 18(10)

A plaintiff suing for damages shall set them out in such manner as will enable the defendant reason-
ably to assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury
shall specify his date of birth, the nature and extent of the injuries, and the nature, effects and
duration of the disability alleged to give rise to such damages, and shall as far as practicable state
separately what amount, if any, is claimed for -
(a) medical costs and hospital and other similar expenses and how these costs and expenses are
made up;
(b) pain and suffering, stating whether temporary or permanent and which injuries caused it;
(c) disability in respect of -
(i) the earning of income (stating the earnings lost to date and how the amount is made up and
the estimated future loss and the nature of the work the plaintiff will in future be able to do);
(ii) the enjoyment of amenities of life (giving particulars);
and stating whether the disability concerned is temporary or permanent; and
(d) disfigurement, with a full description thereof and stating whether it is temporary or permanent.’
16.11 EXAMPLES OF PLEADINGS
16.11.1 SET OF FACTS:

Consider this set of facts and then refer to:
Notes on the approach to the claim, and the Particulars of Claim
SET OF FACTS
You are an attorney.
On 01 August 2014 Miss Lulu Jackson had been a passenger in a motor vehicle, driven by her fiancé,
Johnny Speed. They live together and because Johnny is still looking for work, Lulu looks after him.
Lulu was born on 16 August 1995. She was a first year student at the time of the accident. Her
©LSSA 122
previous jobs did not quite work out for her. Lulu’s natural father, Joe Jackson, at the time of the acci-
dent still gave her a monthly allowance because she was a student with no income. Joe also gave Lulu
the money to pay her medical and hospital bills.
On their way back from a party where Johnny had consumed a beer, he lost control of the motor
vehicle after the driver of a white BMW skipped a stop street right in front of the motor vehicle, and
they crashed. Of course the BMW is nowhere to be seen as it sped off after the incident. Lulu is injured.
Lulu sustained an abrasion on her left cheek and a “whiplash” injury.
There were complications with her injuries that resulted in her undergoing surgery to the neck with
a C5-C6 fusion. Lulu recovered well. She underwent the “serious injury assessment” at her Ortho-
paedic Surgeon but her whole person impairment was found to be less than 30%. You then sent her
for a medico-legal examination to a Neurosurgeon and instructed the Specialist to do the “Narrative
test”. He found that the consequences of her injuries resulted in “a serious long-term impairment or
loss of a body function”. He filled out a RAF4.
Lulu had not been wearing a safety belt at the time of the accident. The accident happened in
Johannesburg approximately 10 kilometres from the Johannesburg Magistrates’ Court and the Gauteng
Local Division of the High Court. Lulu is so upset with Johnny’s drinking habits, that she breaks off
the engagement.
The bills that Lulu give to you are as follows:

Doctors bills R215 001,00
Hospital bills R310 000,00
You have lodged a claim with the Road Accident Fund a long time ago. They have not made any offer
as yet.
Draw one Particulars of Claim with reference to Lulu’s claims against the RAF and any other possible
defendant. If facts for necessary averments are in your opinion absent, supplement them with your
own facts within the framework of the above-mentioned set of facts. Miss Lulu Jackson wants to claim
all her damages.
Notes on the approach to the claim

This answer is based on the Road Accident Fund Act, 56 of 1996, as amended on 1 August 2008 as
well as the Regulations as amended on 15 May 2013.
Please note that this answer has other variables that could also be correct. After the amendments
there are no limited claims and therefore the Particulars of Claim only deals with negligence on the
side of either of the drivers, since negligence of either driver would entitle the plaintiffs to claims
against the RAF.
The owners or drivers of the motor vehicles involved, cannot incur any liability since they are now
“fully protected” by the amended act against claims from injured, including their passengers whom
they “conveyed”. The common law claims now having been abolished in terms of section 21(1) after
the amendments and only the RAF can be held liable.
Neither the owner nor the driver of the white BMW had been identified. This influences the prescrip-
tion for lodging those claims with the RAF based on the negligence of the unknown driver, in that the
plaintiffs only have 2 years to lodge their claims and RAF1 forms in terms of Regulation 2(1)(a) and (b).
You may have decided that there should be only one Plaintiff, Lulu Jackson, because her father had
donated the money for the medical and hospital expenses to her. In practice this could present some
problems since it is clear that he still supports her but that she may be a borderline case as she has
worked before she started her studies. It is clear that due to the fact that Lulu is older than 18, she
should be the one to claim her own damages.
It is also accepted that the serious injury assessment had been done by the medical doctors in
terms of the AMA Guides on the RAF4, and thereafter applying the “Narrative test” and that it had
been lodged with the RAF before the end of the 5 year period, and that the RAF did not dispute
the assessment of “serious injury” or “maximal medical improvement” MMI, and therefore general
damages can successfully be claimed.
Note that the injuries that Lulu has sustained appear on the list of non-serious injuries in Regula-
tion 3 (as of 15 May 2013) and that the only way that those injuries can be assessed as “serious inju-
ries” is i.t.o. the last paragraph of Reg. 3(a) where it is accepted that if “complications” arise from one
©LSSA 123
or more of the above-mentioned injuries on the list, it may be assessed as a “serious injury” if (Reg.
2 – definition) it is a medical complication or a functional impairment and the medical practitioner is
of the opinion that it can be assessed as a serious injury.
We also accept that in the future the consequences of her injuries would be very serious as she had
been assessed i.t.o. section 17(1A) to have sustained a disability of the whole person of less than 30%,
but had thereafter been assessed in terms of the Narrative test with “complications” and is therefore
entitled to compensation for non-pecuniary loss in terms of section 17(1).
16.11.2 ANSWER TO SET OF FACTS IN 15.1: TWO PLAINTIFFS FATHER AND HIS
MAJOR DAUGHTER WHO IS STILL DEPENDANT
(Road Accident Fund Act, 56 of 1996, as amended on 1 August 2008)
(Road Accident Fund Regulations, as amended on 15 May 2013)
Please Note: In order to save space in the manual single spacing is used between the lines. The
parts in BOLD in [brackets] indicate explanatory notes to assist students, and must NOT appear
in the final pleading.
©LSSA 124
ARTICULARS OF CLAIM
1.
1.1 The First Plaintiff is Joe Jackson, a major male person with identity number [any that
makes him old enough to be her father] residing at [any residential address] and employed
as a [any proper job description] [you may also give his work address], in his personal
capacity.
1.2 At all times material to this claim, the First Plaintiff was the natural guardian and father
of his child, Lulu Jackson, whose particulars are set out in paragraph 2 hereunder.
1.3 At all times relevant to the collision described herein and material to this claim the First
Plaintiff was under a legal duty to support the Second Plaintiff and had been supporting
the Second Plaintiff.
2. The Second Plaintiff is Lulu Jackson, a major female unemployed student born on 16 August
1995 with identity number [any that has as the first figures 950816 …. . . ] residing at [any
residential address].
©LSSA 125
3. The Defendant is the Road Accident Fund, a juristic person created in terms of the Road Acci-
dent Fund Act, act 56 of 1996 as amended, (hereinafter referred to as “the act”), with the legal
capacity to institute and defend legal action, with its main place of business [could also be
“Head Office”] at 38 Ida street, Menlo Park, Tshwane, Gauteng.
4. The Defendant is obliged to compensate any person (the third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or herself or the
death of or any bodily injury to any other person, caused by or arising from the driving of a
motor vehicle by any person at any place within the Republic where:
4.1 in terms of section 17(1)(a) of the Act the identity of the driver or owner of the motor
vehicle has been established, and
4.2 in terms of section 17(1)(b) of the act where the identity of neither the driver nor the
owner of the motor vehicle has been established.
5.
5.1 On or about 1 August 2014 a collision occurred at the intersection between A and B
streets [any proper place description], in Johannesburg between a white BMW motor
vehicle with an unknown registration number, owned and driven by an unknown person
(hereinafter referred to as the “first insured driver”), and a motor vehicle with registration
number XXXXXGP driven by one Johnny Speed (hereinafter referred to as the “second
insured driver”).
5.2 At all relevant times the Second Plaintiff had been a passenger in the motor vehicle driven
by the second insured driver.
6. The whole cause of action arose within the jurisdiction of the above-mentioned Honourable
court. [or: the Defendant’s main place of business / head office is situated within the area
of jurisdiction of the above-mentioned Honourable court.]
7.
7.1 The collision had been caused by the sole negligence of the first insured driver who had
been negligent in one or more or all of the following ways:
7.1.1 he did not keep a proper lookout;
7.1.2 he failed to observe and stop at a stop sign when he was under an legal obliga-
tion to do so;
7.1.3 he failed to keep proper control over his motor vehicle when he could and should
have done so;
7.1.4 he drove at a speed that was too high under the prevailing circumstances;
7.1.5 he failed to apply his vehicle’s brakes, alternatively to apply the brakes properly,
further alternatively to apply the brakes timeously;
7.1.6 he failed to avoid a collision when he could and should have done so through the
application of reasonable care;
7.1.7 he failed to observe the rights of other road users under the prevailing circum-
stances.
ALTERNATIVELY TO 7.1
7.2 The collision had been caused by the sole negligence of the second insured driver,
who had been negligent in one or more or all of the following ways:
7.2.1 he did not keep a proper lookout;
7.2.2 he failed to keep proper control over his motor vehicle when he could and should
have done so;
7.2.3 he drove at a speed that was too high under the prevailing circumstances;
7.2.4 he failed to apply his vehicle’s brakes, alternatively to apply the brakes prop-
erly, further alternatively to apply the brakes timeously;
7.2.5 he failed to avoid a collision when he could and should have done so through the
application of reasonable care;
7.2.6 he failed to observe the rights of other road users under the prevailing circumstances.
©LSSA 126
FURTHER ALTERNATIVELY TO 7.1 AND 7.2

7.3 The collision had been caused by the joint negligence of the first insured driver and the
second insured driver, who had respectively been negligent in one or more or all of the
ways set out in paragraphs 7.1 and 7.2 above.
8. As a result of the first insured driver’s negligence, alternatively the second insured driver’s
negligence, further alternatively the first insured driver and the second insured driver’s joint
negligence, the Second Plaintiff had sustained the following serious injuries:
[Remember that where we would in the past merely have referred to serious injuries in the
particulars of claim based on the act before the amendments to indicate the severity thereof
in order to justify an award for general damages, it has now become mandatory to also allege
assessed “serious injuries” in cases where the plaintiff is claiming general damages as well. It
follows that a RAF 4 had been completed and lodged, and the whole process as prescribed in
the Regulations had been followed to assess the injuries in order to ascertain if it qualifies as
“serious injuries” for purposes of an award of general damages or “non-pecuniary loss” as set
out in section 17].
8.1 An abrasion of her left cheek;

8.2 A whiplash neck injury.
9. As a result of the injuries sustained the Second Plaintiff:
[these facts are made up here in order to show “complications”]
9.1 spent one month in hospital;
9.2 was treated as an out-patient after her discharge from hospital for six months;
9.3 had been unable to resume any of her normal activities for a period of one month after
the accident.
9.4 had been subjected to pain and suffering and shall in future be subjected to such;
9.5 had to repeat a year of her studies and will suffer future loss of earnings in her chosen
profession as attorney in the amount of R480 000,00 calculated at a monthly income of
R50 000,00 minus a contingency deduction of 20%;
9.6 suffered complications with the whiplash neck injury;
9.7 had surgery to the neck with a C5-C6 fusion;
9.8 has a permanent functional impairment to the neck as described in the Medico-legal
Report of Dr. John Crane attached hereto as annexure “A”.
10. As a result of the injuries sustained by the Second Plaintiff, the complications that arose and
the consequences thereof, the First Plaintiff in his personal capacity has suffered damages in
the following amounts:
Past Hospital expenses: R310 000,00
Past Medical expenses: R215 501,00
Total: R525 501,00
11. As a result of the injuries sustained by the Second Plaintiff, the complications that arose and
consequences thereof, the Second Plaintiff in her personal capacity:
11.1 had been assessed as prescribed in terms of section 17(1A) and Regulation 3 of the Act to
have sustained a serious injury;
11.2 has submitted the required serious injury assessment report form to Defendant on 12 July
2016; [Van Zyl v Road Accident Fund above. This may be lodged within the five (5)
year period from the date on which the injuries were sustained.]
11.3 received notice from Defendant that it accepts the serious injury report;
11.4 is therefore in terms of section 17(1) entitled to compensation for non-pecuniary loss;
11.5 has suffered damages in the following amounts:
Future loss of earnings R480 000,00
General damages: R375 000,00
Total R855 000,00
©LSSA 127
12. The First and Second Plaintiffs complied with the provisions of sections 17(1A) and 24 of the
Act and Regulations 2 and 3 by lodging the prescribed forms and documents with the First
Defendant on............................ at..........................
* [any date before or on 31 July 2016, when both their claims in their personal capaci-
ties will become prescribed if one relies on the unknown “hit-and-run” driver’s negli-
gence, but if that date has passed and therefore the “hit-and-run” claims had become
prescribed, before or on 31 July 2017, when the claims alleging negligence on the side
of Johnny Speed will also become prescribed. Obviously in the last-mentioned instance,
if it is proven that Johnny Speed was not negligent at all, you will not be able to succeed
against the RAF since you let the hit-and-run claim become prescribed!]
* [Remember that regulation 6(1) was declared unconstitutional. It tried to enforce a
rule that lodgment of the claim must place at the office which is situated nearest to
the location where the occurrence from which the claim arose took place i.t.o. the new
Reg.6(1)(a) or at the office which is situated closest to the location where the third
party resides i.t.o. Reg.6(1)(b).]
* [The reference to Regulation 2 would only be made if it is a hit-and-run claim i.t.o.
section 17(1)(b) because the two year prescription period is set in that regulation.]
* [The reference to section 17(1A) and regulation 3 would only be made if your client
claims general damages since the reference to AMA assessment for a “serious injury”
and “non-pecuniary loss” are found in that section and regulation.]
* [The fact that RAF 4 must be lodged for “serious injury” is not specifically prescribed
anywhere in the act, but is regulated in regulation 1(x), 3(3)(a) and 3(3)(b), and it
is referred to and is written on the RAF 4 itself that a claim for non-pecuniary loss
(“general damages” or “pain and suffering”) will not be considered unless this report
is duly completed and submitted.]
13. Notwithstanding the expiry of the period of 120 days, the Defendant has not compensated
either the First or Second Plaintiffs for the aforesaid damages or alternatively, any part thereof.
WHEREFORE the Plaintiffs pray for judgement as follows:
In favour of First Plaintiff:

(a) R525 501,00;
(b) Interest at 10.25% p/a calculated from 14 days after date of judgement to date of payment; [or
according to the interest rate a tempore morae applicable by law];
(c) Costs of suit;
(d) Further and/or Alternative relief;
In favour of Second Plaintiff:

(a) R855 000,00;
(b) Interest at 10,25% p/a calculated from 14 days after date of judgement to date of payment; [or
according to the interest rate a tempore morae applicable by law];
(c) Costs of suit;
(d) Further and/or Alternative relief;
SIGNED AT ______________ ON THIS _____DAY OF _________________2017
[Signed Before or on 31 July 2019 because it must be issued and served before or on this date.
The plaintiffs have until 31 July 2019 – i.e. 5 years, to issue and serve the summons on the RAF.
______________________________ ____________________________
Advocate [or Attorney with right of Attorney for Plaintiffs with
appearance in the High Court] address
©LSSA 128
16.11.3 DEPENDANTS’ CLAIMS: WIFE AND SON OF THE DECEASED
PARTICULARS OF CLAIM
1.
1.1 The plaintiff is Susan Hanekom a major female person with identity number 840901
XXXX XX X residing at [her residential address] and employed as a [any proper job
description] in her personal capacity; and
1.2 in her representative capacity as mother and natural guardian of Piet Hanekom, (herein-
after referred to as “the minor”), a minor child with identity number xxxxxx xxxx xx x,
born on 14 December 2013, residing at [the same residential address as in 1.1].
2. The defendant is the Road Accident Fund, a juristic person created in terms of the Road Acci-
dent Fund Act, Act 56 of 1996 as amended, (hereinafter referred to as “the act”), with the legal
capacity to institute and defend legal action, with its main place of business at 38 Ida street,
Menlo Park, Tshwane, Gauteng.
3. The Defendant is obliged to compensate any person (the third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or herself or the
death of or any bodily injury to any other person, caused by or arising from the driving of a
motor vehicle by any person at any place within the Republic where in terms of section 17(1)(a)
of the Act the identity of the driver or owner of the motor vehicle has been established.
4.
4.1 On or about 1 December 2016 a motor vehicle with registration number XXXXXGP collided with
a tree.
4.2 The collision occurred at the intersection between A and B streets [any proper place
description], in Johannesburg.
4.3 At all material times:
4.3.1 the motor vehicle with registration number XXXXXGP was driven by one Johnny
Speed (hereinafter referred to as the “insured driver”).
4.3.2 Dave Hanekom, a major male born on 1 August 1984 (herinafter referred to as
“the deceased”) was a passenger in the motor vehicle driven by the insured driver.
5. The whole cause of action arose within the jurisdiction of the above-mentioned Honourable
Court.
6. The collision had been caused by the sole negligence of the first insured driver who had been
negligent in one or more or all of the following ways:
6.1 he did not keep a proper lookout;
6.2 he failed to observe and stop at a stop sign when he was under an legal obligation to do so;
6.3 he failed to keep proper control over his motor vehicle when he could and should have
done so;
6.4 he drove at a speed that was too high under the prevailing circumstances;
6.5 he failed to apply his vehicle’s brakes, alternatively to apply the brakes properly, further
alternatively to apply the brakes timeously;
6.6 he failed to avoid a collision with the tree when he could and should have done so
through the application of reasonable care.
7. As a result of the insured driver’s negligence the deceased sustained serious multiple injuries
in the collision and died instantly.
8.
8.1 At all relevant times the deceased was married to the first plaintiff.
8.2 At all relevant times the deceased was the father and natural guardian of the minor child
represented by the second plaintiff.
8.3 At all relevant times the deceased, who had a legal duty thereto, contributed to the first
and second plaintiff’s support and maintenance in that:
8.3.1 the plaintiff has no formal education or qualifications;
©LSSA 129
8.3.2 the plaintiff possess no particular skills;
8.3.3 the plaintiff is of an advanced age;
8.3.4 the plaintiff is unable to find employment;
8.3.5 the plaintiff is indigent and has no other source of support and maintenance;
8.3.6 the plaintiff is under a legal duty to support the minor;
8.3.7 the plaintiff is unable to support the minor;
8.3.7 the deceased had been gainfully permanently employed as an artisan.
9.
9.1 As a result of the death of the deceased the plaintiff in her personal capacity had suffered
damages in the following amounts:
Funeral costs R10 000,00
Past loss of support R90 000,00
Future loss of support R1 000 000,00
Total: R1 100 000,00
9.2 The loss of support claimed in 9.1 above is based on a calculated loss for a period of 33
years calculated from the date of death of the deceased to the date on which the deceased
would have retired at age 65. The normal contingencies, increases, capitalization and
recapitalisation factors had also been taken into account.
9.3 As a result of the death of the deceased the second plaintiff in her representative capacity
as mother and natural guardian of Piet Hanekom, had suffered damages in the following
amounts:
Past loss of support R45 000,00
Future loss of support R450 000,00
Total: R495 000,00
9.4 The loss of support claimed in 9.3 above is based on a calculated loss for a period of 15
years calculated from the date of death of the deceased to the date on which the minor
would reach the age of 18. The normal contingencies, increases, capitalization and recap-
italisation factors had also been taken into account.
10 The plaintiff complied with the provisions of sections 17(1A) and 24 of the Act by lodging the
prescribed forms and documents with the Defendant on............at...........[any date before or on
30 November 2016].
WHEREFORE judgement is claimed on behalf of the plaintiff in her personal capacity against
the defendant as follows:
(a) Payment in the amount of R1 100 000,00;
In her representative capacity:
(b) Payment in the amount of R495 000,00;
In both capacities:
(c) Interest at 10,25% calculated from 14 days of the date of judgement to date of payment on the
amount of R1 595 000,00;
(d) Costs of suit;
(e) Further and/ or Alternative relief
SIGNED AT ________________________ ON THIS _____DAY OF_____________________2016

------------------------------------------------ --------------------------------------
[Advocate or Attorney with right of [Attorney for Claimant with
appearance in the High Court ] address]
©LSSA 130
16.11.4 ANNEXURE MAGISTRATES’ COURT

TWO PLAINTIFFS – NO SERIOUS INJURY – NO NON-PECUNIARY LOSS (GENERAL DAMAGES)
1. The first plaintiff is xxx, an adult male pensioner who resides xxx, Durban, KwaZulu-Natal.
2. The second plaintiff is xxx, and adult female pensioner who resides xxx, Durban, KwaZulu-Natal.
3. The defendant is the RAF, a juristic person established in terms of Section 2(1) of the RAF Act
56 of 1996 (hereafter referred to as “the Act”) which has the capacity to institute and defend
legal proceedings with its head office at 38 Ida Road, Menlo Park, Pretoria;
3.1 In terms of Section 17(1)(a) of the Act the defendant is liable to handle any claim arising
from the driving of a motor vehicle where the identity of either the owner of the driver has
been established.
4. On 15 July 2013 on the R33 between Greytown and Pietermaritzburg in the vicinity of the
turn-off to the chicken farm in the Albert Falls area, within the jurisdiction of this Honourable
Court, motor vehicle NP 103174 (hereafter referred to as the “Toyota Venture”) collided with
motor vehicle ND 164 (hereafter referred to as the “Mercedes Benz”).
5. At the time of the collision:
5.1 The first plaintiff was the driver of the Mercedes Benz;
5.2 The second plaintiff was a passenger in the Mercedes Benz;
5.3 The plaintiffs were married to each other out of community of property;
5.4 The Toyota Venture was driven by R.T. Nzama (“the insured driver”)
6. The collision was caused solely by the negligent driving of the insured driver who was negligent
in one or more or all of the following respects:
6.1 he failed to keep a proper lookout;
6.2 he failed to apply his brakes timeously or at all;
6.3 he failed to avoid the collision when by the exercise of reasonable care and skill, he could
have done so.
6.4 he drove his vehicle on the incorrect side of the road
7. As a result of the aforesaid collision first plaintiff sustained the following bodily injuries:
7.1 an abrasion of the chest;
7.2 a laceration on the right cheek.
8. As a result of the aforesaid collision second plaintiff sustained the following bodily injuries:
8.1 abrasions on both legs;
8.2 a laceration on the right upper thigh.
9. As a result of the aforegoing bodily injuries, the plaintiffs suffered damages as follows:
9.1 First plaintiff in respect of hospital and medical expenses R19 158.60
9.2 Second plaintiff in respect of hospital and medical expenses R7 294.09
9. The plaintiffs complied with the provisions of Section 24 of the Act by lodging the prescribed
forms and documentation with the defendant at its Durban offices on 27 July 2015.
10. Notwithstanding the expiration of the period of 120 days from the date on which the plain-
tiffs lodged their claims, the defendant has not compensated the plaintiffs for their aforesaid
damages or any part thereof.
WHEREFORE judgement is claimed against the defendant as follows:

1. On behalf of the first plaintiff for R19 158.60
2. On behalf of the second plaintiff for R7 294.09
3. On behalf of both plaintiffs:
3.1 Interest on the aforesaid sums according to law to be paid from 14 days after judgement;
and
3.2 Costs of suit.
©LSSA 131
16.11.5 EXAMPLE: PARTICULARS OF CLAIM MAGISTRATES’ COURT – MINOR
INJURED
(Narrative test serious injury assessment done after AMA Guides assessment did not render
30% or more WPI
1. The plaintiff is [insert full names] an adult male born on [date], an estate agent by occupation
who sues in his personal capacity and in his representative capacity for his minor son [insert
full names] born on 1 December 2000 (hereafter referred to as “the minor”) both of whom reside
at [insert address].
2. The defendant is the Road Accident Fund a juristic person established in terms of Section 2(1)
of the Road Accident Fund Act 56 of 1996 (hereafter referred to as “the Act”) which has the
capacity to institute and defend legal proceedings with its head office at 38 Ida Road, Menlo
Park, Pretoria;
3. In terms of Section 17 (1)(a) of the Act the defendant is liable to handle any claim arising from
the driving of a motor vehicle where the identity of either the owner of the driver has been
established.
4. On 31 October 2010 at the intersection of Old Main and Beves Roads, Pinetown, within the
jurisdiction of this Honourable Court, a collision occurred between motor vehicle NC 161519
(hereafter referred to as “the Jetta”) and the minor.).
5.1 the Jetta was driven by one A B De Beer (“the insured driver”).
5.2 the minor was a pedestrian.
6. The collision was caused solely by the negligence of the said De Beer, who was negligent in one
or more or all of the following respects:
6.2 he failed to apply his brakes timeously or at all;
6.3 he failed to adhere to road signals by not stopping at a stop sign at a four way stop inter-
section;
6.4 he failed to avoid the collision when by the exercise of reasonable care and skill, he could
have done so.
7. As a result of the collision, the minor suffered bodily injuries being fractures of the wrist/
forearm, multiple bruises and grazes to various part of his body including a swollen left knee
and a comminuted fracture of the left femur.
8. As a result of the aforesaid injuries, the minor was conveyed by ambulance, hospitalised, x-
rayed and treated by medical practitioners.
9. The nature and extent of the injuries described in paragraph 10 above are set out in a medi-
co-legal report dated [date] drawn by an orthopeadic surgeon Dr. [name]. The report is annexed
hereto as annexure “A”.
10. As a result of the aforegoing bodily injuries, the minor further:
10.1 was admitted to St Augustine’s Hospital where he was treated as in in-patient from
31 October 2010 to 13 November 2010;
10.2 was treated as an outpatient at St Augustine’s Hospital until January 2011;
10.3 was re-admitted as an in-patient at St Augustine’s Hospital from 16 September 2011 to
17 October 2011;
10.4 underwent surgery to the left knee and left hip;
10.5 had plaster casts fitted and removed.
11. As a result of the aforegoing bodily injuries, the minor further will within the next five years
require future conservative therapy estimated in annexure “A” to amount to R30 000.00.
12. As a result of the aforegoing, the minor;
12.1 has suffered and will in the future suffer pain and suffering;
©LSSA 132
12.2 experienced a loss of amenities of life;

12.3 suffered a loss of earning capacity;
12.4 suffered a loss of earning capacity;
12.5 has been disfigured and disabled.
13. The nature, effect and duration of the pain and suffering, loss of amenities of life, loss of
earning capacity, disfigurement and disability are set out in annexure “A” hereto.
14. The minor had been assessed as prescribed in terms of section 17(1A) and Regulation 3(1)(a)
of the Act to have sustained a a 20% impairment of the whole person.
15. The minor had undergone a further assessment as prescribed in terms of section 17(1A) and
Regulation 3(1)(a) of the Act and had been found to have sustained a serious impairment of the
whole person as required in Regulation 3(1)(b)(iii)(aa).
16. The plaintiff in his representative capacity has:
16.1 complied with Regulation 3 by submitting the required Serious Injury Assessment Report
form to the Defendant on 12 February 2012;
16.2 received notice from Defendant that it accepts the serious injury assessment report and
that the injuries are serious;
17. In consequence of the aforegoing, the plaintiff in his personal capacity has suffered damages in
the sum of R160 974.77, arrived at as follows:
17.1 Hospital expenses R101 240.55
17.2 Health services branch ambulance transport R1 172.00
17.3 Bortz, Lake & Partners Inc. radiologists R573.62
17.4 Dr R Roloff R51 228.60
17.5 Dr Frank Sabbatini R6 760.00
R160 974.77
18. In consequence of the aforegoing, the plaintiff in his personal capacity:
18.1 will suffer further damages for the minor’s future conservative therapy: R30 000.00.
19. In consequence of the aforegoing, the plaintiff in his representative capacity has suffered
general damages for pain and suffering, disfigurement, disability, loss of earning capacity and
loss of amenities of life in the sum of R200 000.00. The amount claimed in respect of general
damages for pain and suffering, disfigurement, disability, loss of earning capacity and loss of
amenities of life is a global figure. It is not reasonably practicable to apportion to each of these
subheadings of damages a specified portion of the amount claimed.
20. The plaintiff complied with the provisions of Section 24 of the Act by lodging the prescribed
claim form duly completed together with the other documentation referred to in the Act with
the defendant on 3 July 2011. In the premises, the defendant is liable to the plaintiff in his
capacities as aforesaid but notwithstanding due and proper demand, the defendant has failed,
refused and/or neglected to make payment to the plaintiff of the claims or any part thereof.
WHEREFORE the plaintiff prays for judgement against the defendant for:
A. IN HIS PERSONAL CAPACITY
(a) payment of R160 974.77;
(b) interest thereon according to law;
B. IN HIS REPRESENTATIVE CAPACITY
(a) payment of R200 000.00
(b) interest thereon according to law;
C. IN BOTH CAPACITIES
Cost of suit.
DATED at UMHLANGA ROCKS this 7th day of NOVEMBER 2012.
PLAINTIFF’S ATTORNEY
XYZ INC
[ETC……….]
©LSSA 133
16.11.6 HIGH COURT PARTICULARS OF CLAIM
Injuries on list of non-serious injuries: “complications” in order to qualify for non-pecuniary loss.
1. The plaintiff is (insert full names) an adult male, born on 30 March 1950, a self-employed
handyman who resides at 152 Blackburn Road, Redhill, Durban, Kwa-Zulu Natal.
2.1 The defendant is the Road Accident Fund, a juristic person established in terms of the
Road Accident Fund Act, 56 of 1996, as amended (hereafter referred to as “the Act”)
which has the capacity to institute and defend legal proceedings with its principal place
of business within the jurisdiction of this Honourable Court at 19th Floor, Durban Bay
House, 333 Smith Street, Durban, Kwa-Zulu Natal.
2.2 In terms of Section 17 (1)(a) of the Act, the defendant is liable to handle any claim arising
from the driving of a motor vehicle where the identity of either the owner or driver has
been established.
3. On 7 August 2012 on the KwaMashu Highway, in the immediate vicinity of the Duffs Road,
Kwa-Zulu Natal within the jurisdiction of this Honourable Court motor vehicle ND 42805
collided with the Plaintiff.
4.1 the plaintiff was a pedestrian;
4.2 ND 42805 was being driven by M S Zondo.
5. The collision was caused solely by the negligent driving of the said Zondo, who was negligent
in one or more of the following respects:
5.1 he drove at an excessive speed in the circumstances;
5.3 he failed to keep the vehicle driven by him under proper control;
5.4 he failed to avoid the collision when by the exercise of reasonable care he could and
should have done so;
5.5 he failed to give any or adequate warning of his approach at a time when he could and
should have done so.
6. As a result of the aforesaid collision, the plaintiff sustained:
6.1 a 10cm x 3cm abrasion to the frontal region of his scalp;
6.2 an abrasion of the nose;
6.3 superficial abrasions to the dorsal aspect of both hands and elbows;
6.4 superficial lacerations of his right hand;
6.5 a Grade 2 compound fracture of the right tibia and fibula;
6.6 a closed degloving injury of the left high and left elbow.
7. As a result of the aforegoing bodily injuries, the plaintiff:
7.1 were admitted to St Augustine’s Hospital where he was treated as in in-patient from 7
August 2012 to 13 August 2012;
7.2 were treated as an outpatient at St Augustine’s Hospital until January 2013;
7.3 were re-admitted as an in-patient at St Augustine’s Hospital from 16 September 2013 to
17 October 2013 and from 12 November 2013 to 15 November 2013;
7.4 underwent surgery including a bone graft from the hip to the leg;
7.5 had plaster casts fitted and removed.
8. As a result of the aforegoing, the plaintiff:
8.1 incurred hospital and medical expenses;
8.2 was not able to resume employment from time to time after sustaining the injuries;
8.3 will not be able to work for further aggregate periods of one year due to the consequences
of the injuries;
©LSSA 134
8.4 has suffered and will in the future suffer pain, disability and disfigurement;
8.5 suffered from complications to the above-mentioned injuries as set out in Regulation 3(1)
(b)(i);
8.6 has been assessed as prescribed in terms of section 17(1A) and Regulation 3 of the Act to
have sustained an impairment of the whole person;
8.7 has complied with Regulation 3 by submitting the required serious injury assessment
report form to the Defendant on 12 February 2014;
8.8 received notice from Defendant that it accepts the serious injury assessment report and
that the injuries are serious;
9. In the premises, the plaintiff has suffered damages amounting to R323 011.07 arrived at as
follows:
9.1 Hospital expenses R24 931.16
9.2 Medical expenses R15 079.91
9.3 Loss of earnings to 31 December 2013 R39 000.00
9.4 Estimated future loss of earnings R184 000.00
9.5 General damages for pain and suffering, loss of the amenities of life, disfigurement and disa-
bility (it not being practicable to break down the claim under this heading) R160 000.00
R423 011.07
10. The plaintiff has complied with the provisions of Section 24 of the Act by lodging the prescribed
form and documentation on 10 July 2009.
11. Notwithstanding the expiration of the period of 120 days from the date on which the plaintiff
lodged his claim, the defendant has not compensated the plaintiff for his aforesaid damages or
any part thereof.
WHEREFORE the plaintiff prays for judgement against the defendant for:
1. Payment of R423 011.07;
2. Interest on the aforesaid sum according to law to be paid from 14 days after judgement;
3. Costs of suit;
4. Alternative reliefs.
DATED at UMHLANGA ROCKS this …......day of FEBRUARY 20......
“Signed”
PLAINTIFF’S ATTORNEY
(who has been duly enrolled and vested with the rights of an Advocate in terms of the provisions of
Act No. 62 of 1995 under Certificate no. 1068/1996)
XYZ INC
Plaintiffs’ Attorney
[insert physical address and reference]
16.11.7 DEFENDANT’S PLEA

Contributory negligence i.t.o. the Apportionment of Damages Act IN THE HIGH
COURT OF THE REPUBLIC OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: ………………
In the matter between:_______________________(Plaintiff)
and
Road Accident Fund_________________________(Defendant)
©LSSA 135
DEFENDANT’S PLEA
1. AD PARAGRAPH 1
Save for admitting that the Plaintiff is xxx, the Defendant has no knowledge of the further alle-
gations contained in this paragraph and such further allegations are accordingly denied.
2. AD PARAGRAPH 2 AND 3
The allegations contained in these paragraphs are admitted.
3. AD PARAGRAPH 4
a. The Defendant admits that a collision occurred on the .. of February 19.. at approximately
midnight in the T-intersection of Street and Street, between the insured vehicle and motor
vehicle TJ driven by the Plaintiff.
b. Save as aforesaid, the Defendant denies the further allegations contained in this paragraph.
4. AD PARAGRAPH 5
a. The Defendant denies each and every allegation contained in this paragraph as if specifi-
cally traversed;
ALTERNATIVELY
b. In the event of it being held by the above Honourable Court that the said Defendant was
negligent either as alleged or at all (which is denied), then the Defendant states that such
negligence did not cause or contribute to the said collision which was caused solely by the
negligence of the Plaintiff who was negligent in one or more of the following respects:
i. he failed to keep a proper lookout;
ii. he failed to avoid the collision when by the exercise of reasonable care, he could and
iii. he failed to stop the motor vehicle driven by him at the stop street controlling his entry
into the said T-intersection;
iv. he entered the said T-intersection at a time when it was dangerous or inopportune for
him to do so, having regard to the approach thereto of the insured vehicle;
v. he drove at an excessive speed in the circumstances;
vi. he failed to keep his said motor vehicle under proper or any control;
vii. he failed to give any or any adequate warning of his approach;
viii. he failed to apply the brakes of his said motor vehicle timeously or at all;
FURTHER ALTERNATIVELY
c. In the event of it being held by the above Honourable Court that the said Defendant was
negligent either as alleged or at all (which is denied) then the Defendant states that the
said collision was caused partly by the fault of the said Defendant and partly by the fault
of the Plaintiff who was negligent as set out above.
5. AD PARAGRAPH 6
The Defendant has no knowledge of the allegations contained in this paragraph and such allegations
are accordingly denied.
6. AD PARAGRAPH 7
Save for denying that the Defendant is obliged to compensate the Plaintiff in the sum of Rxxx or at
all, the remaining allegations contained in this paragraph are admitted.
WHEREFORE the Defendant prays that the Plaintiff’s claim be dismissed with costs, alternatively,
that any damages awarded to the Plaintiff may be reduced in terms of the provisions of the Appor-
tionment of Damages Act no. 34 of 1956 and that this Honourable Court make such order as to costs
as it may seem just and equitable.
DATED at JOHANNESBURG this xx day of AUGUST 20.
…………………………………………. ……………………………………………
DEFENDANT’S COUNSEL DEFENDANT’S ATTORNEYS
©LSSA 136
16.11.8
DEFENDANT’S PLEA ON MERITS
IN THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO:..................
In the matter between:_________________________
First Plaintiff________________________________
Second Plaintiff______________________________
and
ROAD ACCIDENT FUND (Defendant)
DEFENDANT’S PLEA
1. AD PARAGRAPH 1 AND 2
Defendant admits the names of the Plaintiffs, but has no knowledge of the further allegations, which
are accordingly denied.
2. AD PARAGRAPHS 3, 4 AND 5
These are admitted.
3. AD PARAGRAPH 6
The Defendant denies that the driver of the insured vehicle was negligent as alleged or at all.
ALTERNATIVELY the Defendant pleads that the collision was caused by negligence on the part of the
First Plaintiff, who was negligent in one or more of the following respects:
a. He failed to keep a proper lookout.
b. He failed to give an adequate signal of his intention to turn right.
c. He executed a right-hand turn at a time when it was dangerous to do so.
d. He drove on the incorrect side of the road, when it was dangerous to do so.
4. AD PARAGRAPHS 7, 8, 9, 10, 11, 12 AND 13
The Defendant has no knowledge of these allegations, which are accordingly denied.
Wherefore the Defendant prays that the Plaintiff’s claims are dismissed with costs.
16.11.9 SPECIAL PLEA:Jurisdiction & Conditional Counterclaim - minor

between age 7 – 14 refutably doli incapax - and parent left
minor unsupervised.
IN THE HIGH COURT OF SOUTH AFRICA KWA-ZULU NATAL LOCAL DIVISION, DURBAN

CASE NO: 7300/2013
In the matter between:
MZIWAKHE WILBERFORCE GEQEZA (Plaintiff)
and
DEFENDANT’S PLEA
SPECIAL PLEA:
1. The plaintiff has alleged in paragraph 4 of the particulars of claim (hereafter referred to as
“the claim”) that a collision occurred between Matatiele and Mount Fletcher, situate within the
jurisdiction of this Honourable Court.
2. The defendant denies that Matatiele or Mount Fletcher are within the jurisdiction of this
Honourable Court.
3. The defendant denies that its principal place of business falls within the jurisdiction of this
Honourable Court.
4. The defendant is not entitled to consent to the jurisdiction in respect of a court which does not
possess jurisdiction to entertain an action in accordance with the provisions of section 21 of the
©LSSA 137
Superior Courts Act read with section 15(2) of the Road Accident Fund Act.
5. In the premises the defendant pleads that this Honourable Court does not have jurisdiction.
PLEA OVER:
In the event of the special plea being dismissed, the defendant pleads as hereinafter set forth.
6. AD PARAGRAPH 1
* The defendant admits the identities and genders of the plaintiff and the minor child.
* The defendant has no knowledge of the remaining averments in paragraph 1 of the claim,
does not admit them and puts the plaintiff to the proof thereof.
7. AD PARAGRAPH 2
* The defendant does not admit that its principal place of business is at 12th floor, Embassy
Building, 199 Smith Street, Durban, KwaZulu-Natal.
* The defendant admits the remaining averments in paragraph 2 of the claim.
8. AD PARAGRAPH 3
* The defendant admits paragraph 3 of the claim.
9. AD PARAGRAPH 4
* The defendant denies that the tar road between Matatiele and Mount Fletcher is situated
within the jurisdiction of this Honourable Court.
* The defendant admits the remaining averments in paragraph 4 of the claim.
10. AD PARAGRAPH 5
* The defendant denies paragraph 5 of the claim.
11. The collision was caused solely by the negligence of the plaintiff who was negligent in one or
more of the following respects:
* He allowed, permitted or caused the minor to be unaccompanied;
* He failed to keep proper care and control of the minor;
* He failed to ensure that the minor was properly supervised;
* He failed to take all reasonable steps to avoid the minor being involved in the collision.
12. ALTERNATIVELY and in any event the defendant pleads that the collision was caused by the
minor who was negligent in one or more of the following respects:-
* She failed to keep a proper lookout;
* She attempted to cross the road at a time when and a place where it was unsafe for her to
do so;
* She failed to avoid the collision when she should and could have done so;
* She ran into the path of travel of the approaching motor vehicle.
13. ALTERNATIVELY and in the event of the plaintiff establishing that the driver of BKY206B was
causally negligent in the respects pleaded in paragraphs 5 of the claim, the defendant pleads
that the plaintiff was negligent too in the respects pleaded in paragraph 11 hereof and that any
damages which the plaintiff may have suffered fall to be reduced in accordance with the provi-
sions of the Apportionment of Damages Act.
14. In the event of the plaintiff establishing that the driver of BKY206B was causally negligent in
the respects pleaded in paragraphs 5 of the claim, that the plaintiff was negligent in respects
pleaded in paragraph 11 hereof and that any damages suffered by the minor fall to be reduced
in accordance with the conditional counterclaim which is filed evenly herewith.
15. AD PARAGRAPH 6, 7, 8 & 9
* The defendant has no knowledge of the averments contained in paragraphs 6, 7, 8 and 9 of
the claim, does not admit them and puts the plaintiff to the proof thereof.
16. AD PARAGRAPH 10
16.1. The defendant has no knowledge of the averments contained in paragraph 10 of the
claim, does not admit them and puts the plaintiff to the proof thereof.
©LSSA 138
16.2. ALTERNATIVELY and in any event the defendant pleads that:-

16.2.1. The claim for the future medical expenses referred to in paragraph 10.1 of the
claim is for the plaintiff personally until the minor has locus standing and there-
after is for the minor personally, and
16.2.2 The claim for general damages referred to in paragraph 10.2 of the claim for the
minor personally.
17. AD PARAGRAPH 11
The defendant admits that the plaintiff has compiled with section 24 of the Road Accident Fund
Act.
18. AD PARAGRAPH 12
The defendant denies paragraph 12 of the claim.
WHEREFORE the defendant prays that the plaintiff’s claim is dismissed with costs.
DEFENDANT’S CONDITIONAL COUNTERCLAIM

1. The defendant refers to the plaintiff’s particulars of the claim (hereinafter referred to as “the
claim”) and the defendant’s plea thereto and requests that the same be incorporated herein.
2. The parties are described herein as they are described in the particulars of claim.
3. In the event of the plaintiff establishing that: -
(a) this Honourable Court has jurisdiction;
(b) the driver of BKY206B was causally negligent in one or more of the respects pleaded in
paragraph 5 of the claim;
(c) the minor was injured and suffered damages as a result of the collision,
The defendant pleads hereinafter set forth.
4. The said collision, the injuries to the minor and the damages suffered by the minor were caused
by the negligence of the plaintiff who was negligent in or more of the following respects:-
4.1 He allowed, permitted or caused the minor to be unaccompanied;
4.2 He failed to keep proper care and control of the minor;
4.3 He failed to ensure that the minor was properly supervised;
4.4 He failed to take all reasonable steps to avoid the minor being involved in the collision.
5. In the premises the minor is not entitled to any compensation.
6. ALTERNATIVELY and in the event of the plaintiff establishing that the driver of BKY206B was
causally negligent on the grounds pleaded in paragraph 5 of the claim, the defendant pleads
that the plaintiff too was negligent on the grounds pleaded in paragraph 4 above.
7. In the premises and by virtue of the provisions of section 2(1)(b) of the Apportionment of
Damages Act No. 34 of 1956 the plaintiff is a joint wrongdoer for the purposes of section 2 of
the aforesaid Act in relation to any damages suffered by the minor.
8. The conditional counterclaim accordingly constitutes notice to the plaintiff in terms of section
2(2)(b) of the aforesaid Act.
9. By virtue of the aforegoing and in the event that this Honorable Court finds any negligence on
the part of the driver of BKY206B and that the minor suffered damages, the minor’s claim is
reduced having regard to the degrees in which the driver and the plaintiff were at fault in rela-
tion to the damages suffered.
10. A dispute will accordingly arise between the defendant and the plaintiff in relation to such
contribution and particularly the extent thereof.
WHEREFORE the defendant prays for an order: -
Declaring that in the event of the defendant being held liable to the plaintiff in his representa-
tive capacity for any damages suffered by the minor as a result of the collision that the plaintiff
in his personal capacity is compelled to make a contribution to the defendant in respect of such
damages;
(a) Declaring the extent of such contribution;
©LSSA 139
(b) Directing that the minor is only entitled to damages after the relief sought in prayers 1
and 2 above has been determined;
(c) Directing the plaintiff to pay the costs of the defendant’s conditional counterclaim;
(d) For further and /or alternative relief.
DATED at DURBAN this 14th day of JULY 2013. __________________________

DEFENDANT’S ATTORNEY
Who has been duly enrolled and vested with the
rights of an advocate in terms of the provisions of
Act No. 62 of 1995 under Certificate No: 1068/1996
________________________
Defendant’s Attorneys [ETC…]
16.12 SPECIAL PLEAS IN THE ALTERNATIVE: Prescription; and non-compliance with

section 24(6) of the current act (premature service of summons)
IN THE MAGISTRATES’ COURT FOR THE DISTRICT OF CHATSWORTH HELD AT CHATSWORTH
CASE NO: 3162/2013

In the matter between: Shamiel Chetty (Plaintiff )
and
Road Accident Fund (Defendant)
DEFENDANT’S PLEA
FIRST SPECIAL PLEA:
1. The plaintiff’s cause of action against the defendant arose on the 19th of August 2010.
2. The plaintiff’s claim against the defendant is brought in terms of section 17(1)(b) of the Road
Accident Fund Act No. 56 of 1996 as amended (hereinafter referred to as the Act”) in that
neither the identity of the driver nor the owner of the offending vehicle has been established.
3. Any liability of the defendant in respect of a claim in terms of section 17(1)(b) of the Act is
subject to the regulations promulgated under section 26 of the Act.
4. In terms of regulation 2(1)(b) the plaintiff was obliged to lodge his claim with the defendant by
midnight on 18 August 2012.
5. The claim form as provided for in sectlon 24(1) was lodged with the defendant on 4 August
2013.
6. In the premises any claim which the plaintiff may have had against the defendant has prescribed.
WHEREFORE the defendant prays that the plaintiff’s claim be dismissed with costs.
7. ALTERNATIVELY and in any event of this Honourable Court holding that the plaintiff’s claim
against the defendant has not prescribed, the defendant pleads as hereinafter set forth.
SECOND SPECIAL PLEA: -

8. In terms of section 24(6) of the Act no claim is enforceable against the defendant unless 120
days has expired from the date on which the claim, as provided for in section 24(1), was lodged.
9. The claim was lodged on 4 August 2013.
10. The summons in this action should therefore not have been served on the defendant before 3
December 2013.
11. The summons was in fact served on the defendant on 21 November 2013.
12. In the premises any claim which the plaintiff may have against the defendant is unenforceable.
WHEREFORE the defendant prays that the plaintiff’s claim is dismissed with costs.
13. FURTHER ALTERNATIVELY and in any event of this Honourable Court holding that the plain-
tiff’s claim has not prescribed, and that the plaintiffs claim against the defendant is enforce-
able, the defendant pleads over as hereinafter set forth.
©LSSA 140
PLEA OVER:-
14. AD PARAGRAPH 1
(a) The defendant admits the names and gender of the plaintiff.
(b) The defendant has no knowledge of the remaining averments in this paragraph, does not
admit them and puts the plaintiff to the proof thereof.
15. AD PARAGRAPH 2
The contents hereof are admitted.
16. AD PARAGRAPHS 3 AND 4
The defendant has no knowledge of the averments in these paragraphs, does not admit them
and puts the plaintiff to the proof thereof.
17. AD PARAGRAPH 5
(a) The contents hereof are denied.
(b) ALTERNATIVELY and in the event that the plaintiff is able to prove the averments in
paragraphs 3 and 4 of the particulars of claim, then the defendant denies that the colli-
sion was caused as a result of the negligence of the driver of the unidentified vehicle, and
pleads that the collision was caused as a result of the negligence of the driver of the Ford
Cortina.
18. AD PARAGRAPHS 6, 7, 8 AND 9
The defendant has no knowledge of the averments in these paragraphs, does not admit them
19. ALTERNATIVELY in the event of the plaintiff proving that he was a passenger in the Ford
Cortina and this Honourable Court finding that the collision was caused solely by the negli-
gence of the unidentified driver, the defendant pleads that the plaintiff:
a) at all material times negligently failed to make use of a seatbelt which was available
for use by him in motor vehicle registration number ABC 123 GP and that he reasonably
should have made use of the seatbelt;
b) the aforesaid negligent omission by the plaintiff was a cause of or contributed to the
extent of the injuries which he sustained in the aforementioned collision.
20. AD PARAGRAPHS 10 AND 11
(a) The defendant admits that it has not made any payments towards the plaintiffs claim.
(b) The defendant denies the remaining averments in this paragraph and repeats the aver-
ments in its second special plea.
WHEREFORE the defendant prays for the plaintiffs claim to be dismissed with costs.
DATED at DURBAN on this 8th day of FEBRUARY 2014.
____________________________________
DEFENDANT’S ATTORNEY
16.13 SPECIAL PLEAS IN THE ALTERNATIVE

Non-compliance with Regulation 3 relating to the serious injury assessment
report of the current regulations: 4 possible alternative defects in compli-
ance pleaded IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case No: 64075/2012

JOHN DE KLERK (Plaintiff)
and
©LSSA 141
DEFENDANT’S FIRST SPECIAL PLEA
1. The plaintiff’s claim against the defendant is governed by the provisions of the Road Accident
Fund Act, Act no 56 of 1996, as amended by Act no 19 of 2005 and its Regulations (“the Act”).
2. In terms of section 17(1) of the Act, the defendant’s obligation to compensate a Third party
for non – pecuniary loss is limited to compensation for a “serious injury” as contemplated in
Section 17(1A).
3. The prescribed method of determining whether an injury is “serious’ as contemplated in the Act
is set out in Regulation 3 of the 2008 Regulations to the Act.
4. In terms of Regulation 3, a Third Party who wishes to claim for non – pecuniary loss shall,
inter alia, submit him / herself to an assessment by a medical practitioner in accordance with
the Regulations and shall obtain from such medical practitioner concerned, a Serious Injury
Assessment Report, completed in accordance with the Regulations and in which form, the find-
ings of the medical practitioner are recorded.
5 In terms of Regulation 3(3)(c), the Defendant shall only be obliged to compensate a Third Party
for non - pecuniary loss as provided in the Act if the claim of the Third Party is supported by
a Serious Injury Assessment Report submitted in terms of the Act and Regulations and the
Defendant is satisfied that the injury has been correctly assessed as being serious in terms of
the method provided in the Regulations.
6. The procedure to be followed, should the defendant not be satisfied that the injury has correctly
been assessed in a duly submitted and completed Serious Injury Assessment Report, are set out
in Regulations 3(3)(d) and 3(4) to (14). The procedures set out in Regulations 3(3) to 3(14) will
finally determine whether the injury concerned is a serious injury, including the pronounce-
ment of the Appeal Tribunal which is required by Regulation 3(13) to be final and binding.
7 The defendant accordingly pleads that the above Honourable Court does not have jurisdiction
to make a finding as to whether the plaintiff’s injury is a serious injury and does not have the
jurisdiction to make a finding regarding whether the plaintiff is entitled to claim non - pecu-
niary loss against the defendant.
WHEREFORE the Defendant prays that:
(a) the plaintiff’s claim for general damages be dismissed, with the plaintiff to pay the
defendant’s costs;
(b) the plaintiff’s claim for general damages be referred to the appropriate forum as set out
in the Regulations, with the plaintiff to pay the defendant’s costs.
DEFENDANT’S SECOND SPECIAL PLEA
1. The plaintiff’s claim against the defendant is governed by the provisions of the Road Accident
Fund Act, Act no 56 of 1996, as amended by Act no 19 of 2005 and its Regulations (“the Act”).
2. In terms of section 17 (1) of the Act, the defendant’s obligation to compensate a Third party
for non – pecuniary loss is limited to compensation for a “serious injury” as contemplated in
Section 17 (1A).
3. The prescribed method of determining whether an injury is “serious’ as contemplated in the Act
is set out in Regulation 3 of the 2008 Regulations to the Act.
4. In terms of Regulation 3, a Third Party who wishes to claim for non – pecuniary loss shall,
inter alia, submit him / herself to an assessment by a medical practitioner in accordance with
the Regulations and shall obtain from such medical practitioner concerned, a Serious Injury
Assessment Report, completed in accordance with the Regulations and in which form, the find-
ings of the medical practitioner are recorded.
5. In terms of Regulation 3 (3) (c), the defendant shall only be obliged to compensate a Third
Party for non - pecuniary loss as provided in the Act if the claim of the Third Party is supported
by a Serious Injury Assessment Report submitted in terms of the Act and Regulations and the
defendant is satisfied that the injury has been correctly assessed as being serious in terms of
the method provided in the Regulations.
6. The procedure to be followed, should the defendant not be satisfied that the injury has correctly
©LSSA 142
been assessed in a duly submitted and completed Serious Injury Assessment Report, are set out
in Regulations 3 (3) (d) and 3(4) to (14).
7. As at date hereof, the plaintiff has not submitted a Serious Injury Assessment Report. Accord-
ingly, the defendant is not obliged to compensate the plaintiff for non - pecuniary loss as
alleged or at all.
OR
8. As at date hereof, the plaintiff has submitted a Serious Injury Assessment Report, but the
defendant has not yet made a decision in terms of Regulations 3(3)(c) and (d) regarding whether
the injury has correctly been assessed as serious
OR
9. As at the date hereof, the plaintiff has submitted a Serious Injury Report, but the defendant has
rejected the Serious Injury Report in terms of Regulation 3(3)(d)(i). The plaintiff’s alleged injury
has not been finally determined to be a serious injury in terms of Regulations 3(4) to 3(14).
Accordingly, the defendant is not obliged to compensate the plaintiff for non -pecuniary loss as
alleged or at all.
OR
10 As at the date hereof, the plaintiff has submitted a Serious Injury Report, but the defendant
has directed that the plaintiff undergo a further assessment to determine whether the injury
is serious, in terms of Regulation 3(3)(d)(Ii). The plaintiff’s alleged injury has not been finally
determined to be a serious injury in terms of Regulations 3(4) to 3(14). Accordingly, the
defendant is not obliged to compensate the plaintiff for non - pecuniary loss as alleged or at all.
WHEREFORE the Defendant prays that:
(a) the plaintiff’s claim for general damages be dismissed, with the plaintiff to pay the
defendant’s costs;
(b) the plaintiff’s claim for general damages be postponed sine die, with the plaintiff to pay
the defendant’s costs.
DEFENDANT’S PLEA OVER
The defendant pleads as follows to the plaintiff’s Particulars of Claim.

1. AD PARAGRAPH 1 THEREOF
Save to admit that the plaintiff is cited as JOHN DE KLERK, the defendant bears no knowledge
of the remainder of the allegations therein contained, accordingly denies same as if specifically
traversed and puts the plaintiff to the proof thereof.
The defendant admits the allegations therein contained insofar as same accords with the provi-
sions of the Road Accident Fund Act 56 of 1996. Save as aforesaid, the remainder of the alle-
gations therein contained are denied as if specifically traversed and the plaintiff is put to the
proof thereof.
The defendant denies each and every allegation therein contained as if specifically traversed
The defendant has no knowledge of the allegations therein contained and therefore denies
same and accordingly put plaintiff the proof thereof.
5.1 The defendant denies each and every allegation therein contained as if specifically
traversed and puts the plaintiff to the proof thereof. In particular it is denied that the
driver of the motor vehicle with registration number ABC 123 GP (the insured motor vehi-
cle’s), insured driver was negligent either as alleged or at all:
5.2 Alternatively, and in the event of it being found that
(a) a collision occurred as alleged by the plaintiff; and
©LSSA 143
(b) the driver of the insured vehicle was negligent in one or more or all of the respects
alleged by the plaintiff, all of which is still denied, then defendant pleads that the
negligent driving of the driver of the insured vehicle did not contribute to the colli
sion as alleged by the plaintiff.
5.3 In the further alternative to paragraph 5.1. above and only in the event of it being found
that:
(a) a collision occurred as alleged by the plaintiff; and
(b) the driver of the insured vehicle was negligent in one or more or all of the respects
alleged by the plaintiff; and
(c) the negligent driving of the driver of the insured vehicle did contribute to the
collision as alleged by the plaintiff, all of which is still denied, then the defendant
pleads that the driver of the motor cycle with registration numbers XYZ 456 GP
(driven by the plaintiff) negligently contributed to the collision in one or more
or all of the following respects:
(a) he failed to keep a proper look-out;
(b) he failed to take any, alternatively sufficient cognisance of the presence, the
actions and the visibly intended and I or probable further actions of the driver of the
insured vehicle;
(c) he failed to avoid a collision when by the exercise of skill and care he could and
(d) he travelled at an excessive speed under the circumstances;
(e) he failed to have any alternatively adequate regard for other vehicles on the
road, in particular to the vehicle driven by the insured driver;
(f) he failed to exercise any alternatively proper control over the bicycle he was
driving; and
(g) he failed to apply his brakes timeously, adequately or at all.
6. AD PARAGRAPHS 6; 7 & 8 THEREOF:
The defendant bears no knowledge of the allegations therein contained, accordingly denies
same as if specifically traversed and puts the plaintiff to the proof thereof.
7. AD PARAGRAPHS 6; 7 & 8 THEREOF:
The defendant admits demand but denies that it is liable to pay to the plaintiff the amount
claimed in the Particulars of Claim or any amount whatsoever.
8. AD PARAGRAPH 9 THEREOF:
The defendant bears no knowledge of the allegations therein contained, accordingly denies
same as if specifically traversed and puts the plaintiff to the proof thereof.
WHEREFORE the defendant prays that the plaintiff’s claim be dismissed with costs, alterna-
tively be reduced In proportion to the degree by which the plaintiff negligently contributed to
the collision and/or alternatively to the fact or extent of his alleged injuries with, in that event,
an appropriate award as to costs.
__________________________
(SGND.) AB ATTORNEY
©LSSA 144
Admitted herein in terms of

Section 4 (2) of Act 62 of 1995 with right of appearance in the High Court
DATED AND SIGNED at PRETORIA on the 7TH day of JUNE 2013.
(sgd) CD ATTORNEY
ATTORNEY FOR DEFENDANT
MAPONYA INC.
[ETC…………………….]
To: ADLEE ATTORNEYS
ATTORNEY FOR PLAINTIFF
[ETC………………………]
And to: REGISTRAR OF THE HIGH COURT
16.14 DISCOVERY AFFIDAVIT WITH SCHEDULES “A” AND “B”
IN THE HIGH COURT OF SOUTH AFRICAGAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 05550/15

HARRIS: DEAN JOHN (Plaintiff)
and
DISCOVERY AFFIDAVIT
I, the undersigned,
DEAN JOHN HARRIS
do hereby make oath and say:
1. In my full and personal capacity as the Plaintiff in the above action and duly authorized to
make this affidavit. The facts herein contained, save where specifically otherwise stated, are
within my own personal knowledge and are to the best of my belief, true and correct.
2. That I have in my possession or power the documents relating to the matters in question in this
suit set forth in the first and second parts of the schedule annexed hereto.
3. That I object to producing the documents set forth in the second part of the said schedule hereto
attached on the grounds that the said documents are privileged from disclosure being the corre-
spondence between myself and my attorneys and statements from witnesses and myself.
4. That I have not now, nor have I ever had in my possession or under my control, any documents
relating to the matters under issue in this suit other than these documents set forth in the first
and second parts of the attached hereto.
________________________
DEPONENT
I certify that on the ______day of ____________________________ 2016, in my presence at

_________________________
The deponent signed this affidavit and declared that he knew and understood the contents
hereof, had no objection to taking the oath and considered this oath as binding on his conscience.
_______________________
COMMISSIONER OF OATHS
©LSSA 145
SCHEDULE “A”
NO: DATE: DOCUMENT: ORI: COPY:

All Pleadings and Notices under case number 07590/15 X
in the above Honourable Court
21/10/14 Lodgement letter from Corne van de Venter Attorneys to X
the RAF
27/01/15 Letter from Corne van de Venter Attorneys to the RAF X
06/02/15 Email from Corne van de Venter Attorneys to the RAF X
15/05/15 Letter from Corne van de Venter Attorneys to Mothle X

Jooma Sabdia Inc
15/05/15 Letter from Corne van de Venter Attorneys to the RAF X
02/07/15 Email from the RAF to Corne van de Venter Attorneys X
02/07/15 Email from Corne van de Venter Attorneys to the RAF X
02/07/15 Letter from Mothle Jooma Sabdia Inc to Corne van de X

Venter Attorneys
07/07/15 Email from Corne van de Venter Attorneys to Mothle X
Jooma Sabdia Inc
01/10/15 Email from Corne van de Venter Attorneys to Mothle X
Jooma Sabdia Inc
RAF 1 X
Statutory affidavit deposed by the Plaintiff X
Identity document & driver’s licence of the Plaintiff X
Accident report X
Affidavit deposed by S Barry X
Hospital records from Milpark Hospital X
Employment Certificate X
Pay slips of Logical Wireless X
Pay slips of employer SASOL X
21/10/14 Duly signed power of attorney X
21/10/14 Duly signed consent X
Ambulance Records X
RAF 4 and report compiled by Dr Bailey X
National Senior Certificate X
Pay slips of employer Cargo Trucking X
Microsoft Certified Professional Transcript X
Schedule with supporting vouchers X
SCHEDULE “B”
1. Correspondence between Attorney and client containing communications of a confidential
nature with the object of obtaining legal advice in relation to the matters in question in this
action prior to in contemplation of and during the continuance of these proceedings.
©LSSA 146
2. Statements of witnesses and reports brought into existence prior to, in contemplation of and
during the continuance of these proceedings, and correspondence and documents in relation to
the evidence to be used and in relation to information which might lead to the obtaining of such
evidence or otherwise to enable the Plaintiff’s case in this action to be conducted, which state-
ments, reports, correspondence and documents are by their nature privileged or correspondence
between the plaintiff’s attorneys and defendant’s attorneys marked “without prejudice”.
3. Plans, photographs, instructions to Counsel, cases for the opinion of Counsel, notes and opin-
ions thereon with Counsel’s advices and drafts of documents given upon such instructions,
and briefs to Counsel, which came into existence prior to, in contemplation of and during the
continuance of these proceedings, solely for the purpose of obtaining for or furnishing to the
Plaintiff or its Attorneys legal advice in relation to these proceeding or which may have been
made confidential in relation to the matters in question in this action, which said documents
are by their nature privileged.
4. All other documents and correspondence brought into existence to enable the Plaintiff’s case in
this action to be conducted, which are by their nature privileged in respect of the proceedings
between the parties.
(Discover under Schedule B) ORG COPY

1 NONE
17. FORMS UNDER THE RAF REGULATIONS, 2008, DISCUSSED
17.1 THIRD PARTY CLAIM FORM - RAF 1

Comments for attorneys representing third parties
PARAGRAPH 1 - NOTE the RAF asks the third party “How would you prefer us to contact you?’ A
decision must be taken on whether there should be an opportunity for direct contact between the third
party and the RAF.
PARAGRAPH 3 - See the unreported judgement of Traverso, AJP of the CPD delivered on 15 August
2008 under case no; 12209/08 in Law Society of SA and Others v RAF when the implementation of
the “Direct Payment System” was refused pending the determination of a judicial review to invalidate
the decision of the RAF to pay third parties directly.
PARAGRAPH 4 - there should be no problem with the furnishing of trust bank account details.
Whether the RAF is entitled to the documentary proof requested is another matter.
PARAGRAPH 20 - “Substantial compliance” has been pronounced upon in a number of judgements
and the enforcement of this definition will be interesting.
PARAGRAPH 21 - the attempt to obtain the CONSENT from the third party for the RAF “to contact
any person or entity for purposes of obtaining or verifying such information and/or documentation.”
seems to be far reaching.
17.2 ACCIDENT REPORT FORM - RAF 3

The RAF 3 is most comprehensive. In an attempt to achieve the well-intended objectives the RAF
should take steps to educate scholars, learners for driver’s licenses, traffic authorities and charge
offices to ensure that the general public is made aware of its obligations and that the RAF 3 forms are
readily available.
17.3 SERIOUS INJURY ASSESSMENT REPORT FORM - RAF 4

This form must be filled out by the registered medical practitioner (see Duma’s case above) when he
assesses the claimant for serious injury. Paragraph 4 must be used when the AMA test is applied in
terms of regulation 3(1)(b)(ii), and if the result is less than 30% WPI, and the claimant may still qualify
in terms of Regulation 3(1)(b)(iii)(aa)–(dd) (the “narrative test”), Paragraph 5 must be filled out.
©LSSA 147
Paragraph 5: The narrative test would require a proper medico-legal assessment and report, but
the medical expert would further have to explain -
• that the injury is not on the list of non-serious injuries as set out in Regulation 3(1)(b)(i)(aa) –(pp);
or if it does appear that
• complications arose / will arise, and / or functional impairment relating to the third party exist,
which in the opinion of the medical practitioner, could result in the injury being assessed as
serious in terms of sub regulation 3(1)(b)(ii) and/or 3(1)(b)(iii).
Such medico-legal and other reports must then be attached as annexures to the RAF4.
17.4 HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA: GUIDELINE ON THE

NARRATIVE TEST
No guidelines for either the AMA assessment or the Narrative Test have ever been published by the
Minister. The Health Professions Council of South Africa has published a guideline in The South
African Medical Journal, SAMJ Vol 103, No 10 (2013) with Dr HJ Edeling as the corresponding author
relating to the approach to be followed by medical practitioners when doing the assessment by way of
the “narrative test”.
The abstract is as follows:

“This guideline is published by the Health Professions Council of South Africa Appeal Tribunals
to define the use of a Serious Injury Narrative Test Report, as well as the required structure,
content and criteria thereof.
Current South African Road Accident Fund (RAF) legislation requires a medical determination of the
seriousness of injuries sustained in motor vehicle accidents to determine whether the claimant is
entitled to a claim for general damages. Such medical assessments are submitted in the form of RAF
4 Serious Injury Assessment Reports. Contested claims for serious injury are referred to the Health
Professions Council of South Africa (HPCSA) Appeal Tribunals for final determination. The legislation
prescribes 2 instruments, namely the American Medical Association (AMA) Guides (6th edition) and
the Narrative Test for this purpose. Whereas the AMA Guides are published in a comprehensive book,
and training courses are provided in their use, existing legislation does not provide any indication of
the required structure, content or criteria of a Narrative Test report. This document is published by the
HPCSA Appeal Tribunals as a guideline to the performance of the Narrative Test; what it is, reasons
for applying it and who should compile it, as well as the required structure, content and criteria
thereof. A Narrative Test Report should include relevant and meaningful comment in relation to each
of the 6 sections described in the article.”
It would be important that attorneys consider such assessments and measure them against these
guidelines in order to make sure that the medical practitioner considered and covered all relevant
aspects before submission to the RAF.
17.5 EXPERT EVIDENCE: THE CERTIFICATION PROCESS FOR TRIAL READINESS IN

CERTAIN HIGH COURTS – APPLICABLE TO ALL PERSONAL INJURY CLAIMS
17.5.1 INTRODUCTION
In certain High Courts a Certification process is followed before a trial involving experts may be set
down for trial. For purposes of illustration the Practice Directives of the Deputy Judge President in the
Gauteng Local Division, Johannesburg, are summarized here. It must be read together with the Prac-
tice Directives for each specific court, as well as The Rules of Court applicable to Pre-Trials, especially
rule 37. Itis clear that in personal injury claims this process will have to be followed where applicable.
©LSSA 148
17.5.2 THE HIGH COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION:

CASE MANAGEMENT DIRECTIVE EFFECTIVE FROM FIRST TERMS OF 2015 (AMENDED UP
TO AUGUST 2015: EFFECTIVE FOR ENROLMENTS FOR CERTIFICATION FROM 7 SEPTEMBER:
TRIALS SET DOWN FROM 5 OCTOBER 2015)
The High Court of South Africa, Gauteng Local Division (“the Court”) has implemented a new judicial
case management system which is mandatory for all trial matters involving expert evidence that
therefore require certification conference’s to be applied for before being able to proceed with trial.
17.5.3 THE CASE MANAGEMENT PROCESS IS SUMMARIZED IN 17.5.4 TO 17.5.11

BELOW
17.5.4 AT THE ISSUING OF THE SUMMONS:

Only trial matters involving expert evidence shall be subject to judicial case-flow management and
require certification before being allowed to proceed to trial on the set down date, in accordance with
the procedures set out herein.
At the time a summons is issued, the plaintiff’s attorney shall declare to the registrar which of two
classifications must be recorded; i.e.:
* ‘Trial requiring expert evidence’ - in respect of which the registrar shall add an “X” to the
case number.
* ‘Other matter’
17.5.5 AT THE APPLICATION FOR A TRIAL DATE:

The plaintiff shall file a practice note that the parties are in agreement that the merits of the claim and
the quantum of damages be separated or not be separated, and the registrar shall staple that practice
note to the inside left cover of the file. The allocation of a date shall be notified to the attorney by fax.
If the parties agree to a separation, the merits leg will not be case managed. If there is no agreement
to separate, the judge convening the certification conference shall deal with the issue as set out in
paragraph 11.3.
17.5.6 APPLICATION FOR CERTIFICATION CONFERENCE:

The Plaintiff can at any time that he/she believes that the matter is trial ready, but not later than the
Monday, 5 weeks before the week in which the trial is set down, file an application to the Registrar at
Room 004 of the Court for a Pre Trial Conference with a Judge, to certify that the matter is in actual
fact, trial ready. A copy of same shall be sent to all the other Parties to the action. If this is not done,
the trial will not be allowed to proceed on the set down date.
17.5.7 REQUIREMENTS WHEN MAKING APPLICATION FOR THE CERTIFICATION

CONFERENCE: (can only can be done on Mondays)
When making application for the Certification Conference the following is required:
• The prescribed form shall be completed and submitted to the Registrar.
• A statement by the Plaintiff’s attorney which shall contain:
* Confirmation that the discovery is complete for all Parties and if not, an explanation as to
why same has not been done;
* A concise summary of common cause facts (no evidence shall be led at trial regarding these);
* A statement of the questions of law and of fact that the Court must decide;
* If the Parties have agreed to separate the merits and the quantum and if not, an explanation
as to why not; and
* A list of witnesses that the Parties will be calling to testify as well as what issue each
witness will address.
©LSSA 149
* A legible indexed and paginated bundle of the Pleadings as well as a spread sheet of the
allegations contained in the Pleadings which are admitted and disputed;
* Copy of a registered recent Rule 37 Conference (Pre-Trial Conference) which is indexed and
paginated and signed by all the Parties;
17.5.8 EXPERT EVIDENCE:

• All evidence by experts which must be indexed, paginated and bound;
• If there are any reports, these must be included and same must be drafted in a format that is
designed for lucidity, brevity and convenient cross referencing, set out in numbered paragraphs;
• If there are no reports there must be an explanation as to why these have not been provided as well
as a timetable of when the specific experts are available; and
• A Joint Minute of the experts must be provided and same must identify what is agreed and not
agreed, if agreement cannot be reached, there must be reasons stated as to why.
17.5.9 ALLOCATION OF CERTIFICATION CONFERENCE:

A date shall be allocated to a Judge on a fixed date and time on a Wednesday, Thursday or Friday from
9h30 onwards in the fourth week before the week of the trial date.
The Plaintiff must notify every Party to the matter of the date and time within 1 day of allocation and
proof of same must be filed.
17.5.10 CERTIFICATION CONFERENCE:

The Judge who shall preside at the Conference must be provided by the Registrar with the trial files on
the Friday before the week in which the Conference shall take place.
On conclusion of the Conference the Judge shall summarize the decisions made and the Judge may if
he/she deems necessary, direct that the Plaintiff file a minute within 5 days, which will be settled by
the Judge and shall be stapled to the inside left cover of the file.
In the certification conference the judge shall engage the parties’ representatives (who must be briefed
on the merits and be in a position to address the issues meaningfully) in a manner foreshadowed by
the prescriptions of the application for certification and, without limiting the scope of the engagement:
shall, initially explore a settlement, and if that is not attainable,
• shall deal with the grant or refusal of any amendments sought, and,
• shall identify the exact issues to go to trial, and order a separation in terms of Rule 33(4) if appro-
priate, and
• shall endeavour to promote agreement on limiting the number of witnesses that are necessary to
be called, and, thereafter:
• may certify the matter trial ready, or
• may, subject to paragraph 11.7, refuse certification, in which event the set down date is forfeited;
provided that if the matter becomes settled by the date setdown for trial, an order by consent may
be sought at the roll call, or
• may, in exceptional circumstances, if in certain respects compliance in terms of the Rules is not
yet due, e.g. filing of expert reports, as regulated in Rule 36, and it is for that reason the matter
is not fully ready, the judge shall put the parties on such terms as are appropriate to achieve trial
readiness in time for the matter to commence on the set down date, and
• may, whenever .necessary, direct an issue to be addressed in the Interlocutory Court at its next
sitting, or
• may make such other order appropriate to expedite the progress of preparation.
At the conclusion of a certification conference, the judge shall summarise the decisions made and the
judge may, if deemed necessary, direct the plaintiff to file a minute within five days, which shall be
settled by the judge, and stapled to the inside left cover of the file.
©LSSA 150
17.5.11 TRIAL PREPARATION:

- On the Monday 2 weeks before the trial date, before 12h00, the Plaintiff shall file a Practice Note
with the Deputy Judge President stating the following:
• Any information about settlement or prospective settlement;
• The status quo regarding the trial readiness;
• The estimated duration of the trial;
• The names and email address of all counsel as well as the attorneys involved in the matter;
• An updated version of a Rule 37 Pre-Trial Conference Minute; and
• A copy of the minute that has been drafted in accordance with the certification conference shall be
attached to the Practice Note.
18. FUTURE LEGISLATION: ROAD ACCIDENT BENEFIT SCHEME

(“RABS”)
18.1 INTRODUCTION TO THE RABS

The final policy on the Road Accident Benefit Scheme was approved by Parliament on 8 September
2011. The Department of Transport intends for the RABS to be implemented in place of the existing
RAF Act very soon. A draft Road Accident Benefit Scheme Bill, 2013 was published for comment on
8 February 2013 in Government Gazette No. 36138. The Department of Transport later announced a
further period of 60 days to comment on the draft Road Accident Benefit Scheme Bill (RABS) after
considering representations by various stakeholders who requested an extension of the period to
provide comments on the Bill. This is government’s plan to reform the current common-law based
compensation system to align it with other social insurance funds (like the WCC). It will be a
“no-fault” system with limitations on loss of income/support benefits and no general damages
will be payable. Benefits may be reviewed from time to time (no “final” settlement of claims).
The amended draft Road Accident Benefit Scheme Bill, 2013, as well as the Draft Regulations and
the Draft Rules were published for comment on 9 May 2014 in Government Gazette No. 37612 The
Bill provides for a social security based structure similar to that found in the Compensation for Occu-
pational Injuries and Diseases Act, 1993 (Act No. 130 of 1993). A process of public consultation and
research in some issues is currently underway. In the latter half of 2016 there is no indication when
exactly it will be implemented.
18.2 HIGHLIGHTS OF THE RABS BILL

Preamble: “No-fault” system, and Definitions
The preamble makes it clear that a fair and just system that is sustainable given the limited
resources available, is required and that it will be a no-fault system.
Road Accident defined: no reference to the owner’s actions as in the current RAF Act
S1. “road accident” means an incident caused by or arising from-

(a) the driving of a vehicle;
(b) entering or exiting a vehicle;
(c) leaving a vehicle stationary;
(d) the moving of a vehicle as a result of gravity;
(e) a vehicle coming to a standstill; or
(f) evasive action taken to avoid collision with a vehicle.
Objectives of the Act: Injury or death from road accident may qualify for benefits
S2. The objectives of this Act are to-
(a) provide an effective benefit scheme in respect of injury or death caused by or arising from road
accidents, which benefit scheme is reasonable, equitable, affordable and sustainable;..
©LSSA 151
Administrator and Board created
S3. The Road Accident Benefit Scheme Administrator is established. (“RABSA”) It will eventually
replace the RAF the moment that this Bill is put into operation, and the Administrator must ring-fence
the former act’s claims.
The Administrator has a duty to assist claimants. It must:

S5. The Administrator must-
(a) assist qualifying persons to submit claims;
(b) receive claims and medical reports;
(c) assess, accept or reject claims for benefits and establish and maintain a database of claimants and
beneficiaries;
(d) determine appeals regarding the entitlement to or the provision of benefits;
(e) facilitate access to early and effective medical and vocational rehabilitation for injured persons;
(f) enter into agreements with public and private health care service providers as set out in section 32;
(g) adopt measures to detect, investigate and prevent fraudulent and corrupt activities regarding
claims and the provision of benefits; and
(h) keep such accounting and related records as required by law.
NOTE: However, i.t.o. S 52 the RABSA and employees absolved if they are negligent or reckless and
cause damage to claimants, perhaps through inferior or incompetent advice or assistance. This
certainly does not inspire confidence in the quality of assistance that one could expect.
S7. A Board is created that will devise strategies and policies as well as govern, monitor and supervise
the Administrator.
Funding through a levy

S27. The Administrator is funded from-
(a) a Road Accident Benefit Scheme levy provided for in the Customs and Excise Act, 1964 (Act No. 91
of 1964), to perform its functions as provided for in this Act but excluding its functions referred to
in paragraph (b); and
(b) moneys appropriated by Parliament to perform its functions in respect of all claims under the Road
Accident Fund Act, 1996 (Act No. 56 of 1996).
Terrorism-related injuries do not qualify

S28(1). The Administrator shall not be liable to provide a benefit, nor is the liability of any person
excluded, in respect of bodily injury or death caused by or arising from the use of a vehicle to perpe-
trate a terrorist activity, as defined n the Protection of Constitutional Democracy Against Terrorist and
Related Activities Act, 2004 (Act No.33 of 2004).S28(3)
COIDA payments; SANDF payments may be subtracted by RABSA

S28(2).
(a) RABSA may deduct any amounts that a claimant may be entitled to i.t.o. the Compensation for
Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993); or
(b) that a member of the South African National Defence Force contemplated in the Defence Act, 2002
(Act No. 42 of 2002), may be entitled to;in respect of bodily injury or death caused by or arising
from the road accident.
Claims by Illegal Aliens limited to emergency health care services only

S28(4). If an injured person or deceased breadwinner was not legally present in the Republic at the
time of the road accident, the liability of the Administrator to-
(a) the injured person; and
(b) any other person, including the dependants of a deceased breadwinner is limited to payment for
the provision of emergency health care services.
No claim may be instituted against owner, driver and employer of driver

S29. Exclusion of liability of owner, driver and employer of driver- No civil action may be instituted
against these persons. Vicarious liability is also excluded.
©LSSA 152
Liability of Administrator in respect of health care services

S31(1). Subject to this Act, the Administrator shall be liable to pay for health care services reasonably
required for the treatment, care and rehabilitation of injured persons including but not limited to-
(a) transport required to receive any health care service;
(b) pre-hospital care and inter-facility transfer;
(c) emergency and acute care;
(d) hospitalisation and outpatient services;
(e) accommodation required to receive any health care service;
(f) rehabilitative care;
(g) vocational ability assessment and training;
(h) long-term personal care;
(i) assistive devices;
(j) structural changes to homes, vehicles and the workplace; and
(k) medical reports required under this Act.
S31(2). In assessing whether a health care service is reasonably required for the treatment, care or
rehabilitation of an injured person, the Administrator shall have to regard whether it is-
(a) for the purpose of restoring the injured person’s health to the extent practicable;
(b) appropriate and of the quality required for that purpose;
(c) performed only on a number of occasions necessary for that purpose;
(d) given at a time or place appropriate for that purpose;
(e) of a type normally provided by a health care service provider; and
(f) provided by a health care service provider who is qualified to provide that service and who
normally provides the health care service.
S32. A sytem of preferred Health Care Providers would be introduced.
S33(2). The Administrator may require prior approval of all health care service, except for emergency
treatment. (Should the Administrator not approve the treatment, an appeals procedure i.t.o. S5(d) and
S49 must be followed).
S34. The Administrator may prescribe treatment to be undergone and i.t.o. S33(3) it may designate
the medical service provider to whom the injured must submit himself.
Temporary or Long-term Income Loss benefits: only for claimants ordinarily resident in the RSA
as per these requirements
35(1). Subject to this Act, the Administrator shall be liable to provide-
(a) a temporary income support benefit to injured persons; and (b) a long-term income support benefit
to injured persons, provided that no temporary or long-term income support benefit shall be paid
to a person who is not ordinarily resident in the Republic.
(2) For the purpose of subsection (1) and unless the contrary is shown, a person shall be deemed not
to be ordinarily resident in the Republic if he or she-
(a) is absent from the Republic for a period of longer than six months per year, for the three years
preceding the road accident or any consecutive three year period thereafter; or
(b) fails to submit, within a reasonable period after being requested to do so by the Administrator, an
affidavit, affirmation or solemn or attested declaration commissioned in the Republic confirming
that he or she remains ordinarily resident in the Republic and furnishing his or her place of resi-
dence in the Republic.
(Clearly the rights of foreigners are more or less excluded here but more alarming the rights of SA citi-
zens that may be working internationally are somewhat diluted here. Given the high rate of unemploy-
ment in SA this aspect is highly questionable.)
Temporary Income Loss benefit – Formulae in Schedule 1 subject to an Annual Cap
S36. This prescribes how a temporary income loss would have to be proven, what would be applicable
if the claimant cannot prove his income over the past three years and provides for a default position
where someone who cannot provide the necessary proof, will be deemed to have earned the national
©LSSA 153
average income. The only requirement i.t.o. S36(4)(b) seems to be proof from a medical practitioner
that the injured would not have been able to perform his normal work as a result of the injuries,
regardless of whether he was actually working before the accident or not.
Schedule 1 provides the formula

1. Temporary Income Support Benefit formula
((X/365) *Y) *75%
where
X = the amount determined in accordance with section 36(2)(a) or (b) of the Act; and
Y = the period of entitlement expressed in number of days, which must be calendar days inclusive of
weekends and public holidays
Long-term Income Loss benefit – Formulae in Schedule 1 subject to an Annual Cap

S37. Long-term income support benefit claims will have to be substantiated through assessment as
prescribed by Administrator and the Board, in consultation with the Health Professions Council of
South Africa, may make rules specifying -
(a) guidelines for the assessment of the injured person’s post-accident vocational ability;
(b) training programmes for assessors; and
(c) accreditation criteria for assessors.
Schedule 1 again provides the formula

2. Long-term Income Support Benefit formula
(X*75%) minus Z
where
X = the amount determined in accordance with section 36(2)(a) or (b), as the case may be; and
Z = the amount determined by the Administrator in terms of section 37(5) to be the injured person’s
annual post-accident earning capacity
S1. According to the definitions “pre-accident income cap” means the amount determined by the
Minister under section 55(5). The temporary and long-term support benefit claims will therefore be
capped. I.t.o. S37(7)(c) further limitations apply in the case of long-term support benefit claims: the
period of entitlement to the long-term income support benefit must exclude-
(i) the period ending two years after the date of the road accident;
(ii) any period before the injured person reached the age of 18 years; and
(iii) any period after the injured person has reached the age of 60 years.
No beneficiary of temporary or long-term income support may receive less that the average annual
national income, but this is merely an amount the Minister of Transport will decide in consultation
with the Minister of Finance. i.t.o. S55(4).
I.t.o. the draft Regulations the current average annual national income amounts to R43, 965.00 (Forty
Three Thousand Nine Hundred and Sixty Five Rands).
The draft Regulations also determine that the “pre-accident income cap” amounts to R 219 820.00.
(Two Hundred and Nineteen Thousand Eight Hundred and Twenty Rands).
Furthermore i.t.o. S37(9) a long-term income support beneficiary is not entitled to inflationary adjust-
ments of the amount of the benefit paid by the Administrator but the Minister may, subject to afforda-
bility, from time to time, adjust the long-term income support benefit by notice in the Gazette to take
into account the effects of inflation.
Benficiaries may be forced to undergo vocational training
S38. The beneficiary of a temporary or long-term income support benefit may be required by the
Administrator to undergo vocational training.
Family Support benefits – Formulae in Schedule 1 subject to an Annual Cap

S39. This deals with Family support benefits where the breadwinner is deceased and residency in SA
is again a pre-requisite. S39(4) introduces the annual cap that the Minister will prescribe. i.t.o. S 55(4).
©LSSA 154
I.t.o. S39(7) The amount of a family support benefit is to be determined in terms of the method and
formula provided in Schedule 1,
Schedule 1
3. Family Support Benefit formula
(a) If the dependant is the sole surviving spouse and there are no other dependants:
(A*(2/4)) - (C*(2/4))
where
A = the amount determined in accordance with section 39(3) to be the deceased breadwinner’s pre-ac-
cident income; and
C = the amount determined in accordance with section 39(5) to be the surviving spouse’s pre-accident
income, if any;
(b) if the dependant is the sole surviving spouse and there are other dependants:
(A*(2/(4 + B))) - (C*(2/(4 + B)))
where
cident income;
B = the number of children and other dependants, excluding the surviving spouse; and
C = the amount determined in accordance with section 39(5) to be the surviving spouse’s pre-accident
income, if any;
(c) if the dependant is a child or any other dependant and there is also a sole surviving spouse:
(A*(1/(4 + B)))
where
cident income; and
B = the number of children and other dependants, excluding the surviving spouse;
(d) if the dependant is a child or any other dependant and there is no surviving spouse:
(A*(1/(2 + B)))
where
cident income;
B = the number of children and other dependants;
(e) if the dependant is a spouse, child or any other dependant and the deceased breadwinner is
survived by more than one spouse:
(A*(1/(2 + B)))
where
cident income;
B = the number of spouses, children and other dependants:
Provided that, in the case of a surviving spouse who earns an income, the following formula
shall apply to that spouse’s benefit only
(A*(1/(2 + B))) - (C*(1/(2 + B)))
where
C = the amount determined in accordance with section 39(5) to be the earning surviving spouse’s
pre-accident income, if any;
(f) a dependant who is a surviving spouse is entitled to a family support benefit for a period of 15
years calculated from the date of death of the breadwinner or until he or she reaches the age of 60,
whichever period is the shortest;
(g) a dependant who is a child is entitled to a family support benefit until he or she reaches the age
of 18;
©LSSA 155
(h) a dependant who is not a spouse or a child is entitled to a family support benefit for as long as
he or she would have been legally entitled to support and would have received such support had the
breadwinner not died, or until he or she reaches the age of 60, whichever period is the shortest; and
subject to section 39(10), the Administrator must pay the family support benefit by way of monthly
instalments.
Funeral claims
S40. The amount for funeral claims is limited to R10 000,00.
Benefits may be reviewed by the Administrator

S41. The Administrator may review benefits, and may terminate, suspend and revise benefits at any
time. Benefits terminate on the death of the beneficiary.
Obligations of the claimant and beneficiary

S43 – 45. A claims procedure is envisaged and the forms and procedures will be set out in the rules.
I.t.o. S45 the Administrator has got vast powers to request information from inter alia the South
African Police Services, health care providers, and financial institutions.
Administrator may require claimant to do the following:

44(1). Notwithstanding anything to the contrary in any law, and to assist the Administrator to make
a determination in terms of this Act, the Administrator may require any claimant or beneficiary
to-
(a) attend an interview by the Administrator or its agents;
(b) furnish a written statement or affidavit to the Administrator regarding any aspect of a claim or
benefit;
(c) furnish the Administrator with further particulars of the road accident or any other relevant infor-
mation regarding any aspect of a claim or a benefit;
(d) furnish a document in his or her possession or under his or her control, relevant to a claim or a
benefit to the Administrator; and
(e) provide his or her consent to the Administrator to access records held by third parties relevant to
his or her claim or benefit.
(2) The Administrator shall not be obligated to process any claim until a claimant has complied
with any requirement imposed on him or her in terms of this section.
The Administrator may suspend any benefit until a beneficiary has complied with any require
ment imposed on him or her in terms of this section.
S46. The Administrator is given vast investigative powers and may even subpoena potential witnesses
to appear before it.
Prescription / “Lapsing” of claims

S47. Claims lapse 3 years after the claim arose, but a claim shall be deemed not to arise until the
qualifying person has knowledge of the facts from which the claim arose. The time period also does
not run against a qualifying person if the qualifying person-
(a) is a minor or is insane or is a person under curatorship or is prevented by superior force including
any law or any order of court from submitting a claim; or
(b) is deceased and an executor of the estate in question has not yet been appointed, in which case
the three year period is deemed not to be completed before one year after the relevant impediment
referred to in paragraph (a) or (b) has ceased to exist.
Time periods for determination of claims

S48. The RABSA must accept or reject a claim within 180 days of receipt of such claim and if it fails
to do so, the claim is deemed to be rejected. The claimant may then appeal i.t.o. S49 to the Appeals
body which will be established by the Administrator. The claimant may also appeal within 30 days
after the Administrator has made a decision. The Appeals bodies are internal Appeals bodies, and
i.t.o. S 49(5), Subject to this Act and the review jurisdiction of the courts conferred by the Promotion
of Administrative Justice Act, 2000 (Act No. 3 of 2000), the decision of the appeal body regarding the
liability of the Administrator is final.
©LSSA 156
Appeals procedure- Internal Appeals Bodies

49(1). A claimant or beneficiary may within 30 days after being notified of the decision of the Admin-
istrator, or after the expiry of the periods specified in section 48, in the manner and in accordance
with the procedure set out in the rules, lodge an appeal in writing against the decision.
(2) The Administrator must establish one or more internal appeal bodies, each comprising of at
least three officers employed by the Administrator and authorised by the Chief Executive Officer,
to decide any appeals lodged.
(3) The appeal body may-
(a) affirm or reverse any decision in respect of a claim or the provision of a benefit and may
substitute it with its own decision;
(b) refer any issue raised in an appeal to a medical or any other expert for an opinion; and
(c) refer any issue raised in an appeal to a medical or any other expert for final determination,
in which event, the medical or other expert may affirm or reverse any decision in respect of
a claim or the provision of a benefit and may substitute it with his or her own decision.
Internal Appeals Body’s decision is final, subject to review by a court i.t.o. PAJA only
S49(5). This subsection states that subject to this Act and the review jurisdiction of the courts
conferred by the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), the decision of the
appeal body regarding the liability of the Administrator is final.
No costs legal costs payable for preparation and claiming

S51. Unless otherwise provided in this Act, the Administrator shall not be liable to contribute to the
costs of an injured person, claimant or beneficiary, including his or her medical and legal costs, to
prepare and submit a claim or an appeal or to meet any requirement in this Act.
(This provision ensures that legal representation will not be financed and it also is a cause of concern
as to how a claimant will be able to afford the medico-legal reports that are prohibitively expensive
in order to prove a claim.)
NOTE: Section 29 of the draft Bill indicates that no civil action in respect of a bodily injury to, or
the death of any person, caused by or arising from a road accident shall lie against the owner or
driver of a vehicle involved in a road accident, or against the employer of the driver. The heading of
this intended Section is “Exclusion of liability of owner, driver and employer of driver” whereas the
heading of Section 21 of the current legislation after the amendments of 1 August 2008 reads: “Aboli-
tion of certain common law claims”. The result will however still be the same for all practical purposes
– the common law wrongdoer may not be sued for damages as a result of somebody’s personal injury
or death after a road accident.
As with the current amended Road Accident Fund Act, one would have to consider taking out insur-
ance for the shortfall in compensation in terms of RABS, should you be injured or your breadwinner be
killed in a road accident, since there is no recourse against the common law wrongdoer. It also creates
an internal appeals procedure and therefore courts will only be able to deal with reviews in terms of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA), as stipulated in S51.
The Draft Regulations
It is interesting to note that service of process is also required to be done by e-mail or fax or a hard
copy must be delivered to the head office:
2. Service of process commencing litigation

A notice or other process commencing litigation against the Administrator in any court may be served
on the Administrator in any manner provided for in the Uniform Rules of Court, provided that service
on the Administrator shall not be effective unless-
(a) an electronic copy of the notice or other process is sent to the email address indicated on the
Administrator’s website;
(b) the notice or process is faxed to the facsimile number indicated on the Administrator’s website; or
(c) a hard copy of the notice or process is delivered to the physical address of the head office of the
Administrator indicated on its website
©LSSA 157
The Draft Rules under RABS
The draft rules are extensive. It is clear that the RAF is attempting to codify all aspects of any possible
claim with the Rules and that all possible variables are being covered. This approach is directed at
avoiding as many possible types of dispute as possible, apart from any initial general disputes about
the validity, legality and constitutionality of the Act, the Regulations and the Rules.
The forms to be used are also incorporated in the Rules, ranging as follows:
Annexure A RABS 1: Accident Report
Annexure B RABS 2: Claim Form Health Care Services Benefit
Annexure C RABS 3: Claim Form Temporary Income Support Benefit
Annexure D RABS 4: Claim Form Long-Term Income Support Benefit
Annexure E RABS 5: Claim Form Family Support Benefit
Annexure F RABS 6: Claim Form Funeral Benefit
Annexure G RABS 7: Form Incapacity Certificate
Annexure H RABS 8: Form Notice of Appeal
Annexure I RABS 9: Form Pre-Authorisation Request
Annexure J RABS 10: Bank Indemnity Form
Annexure K RABS 11: Form Vocational Ability Assessment
19. ROAD ACCCIDENT INJURY ACTS, REGULATIONS AND FORMS
19.1 ROAD ACCIDENT FUND ACT, 1996 (ACT 56 OF 1996)

ROAD ACCIDENT FUND ACT, 1996 (ACT No. 56 OF 1996)
[Assented to 24 October 1996.] [Date of commencement: 1 May 1997, except section

10: 21 April 1996.]
(English text signed by the President.)
as amended by
Road Accident Fund Amendment Act, 2001 (Act No. 15 of 2001)

Revenue Laws Amendment Act, 2001 (Act No. 19 of 2001)
Revenue Laws Amendment Act, 2005 (Act No. 31 of 2005)
ACT
To provide for the establishment of the Road Accident Fund; and to provide for matters
connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:–
Definitions
1. In this Act, unless the context otherwise indicates–
(i) “agent” means an agent of the Fund appointed under section 8; (i)
(ii) “Board” means the Board of the Fund referred to in section 10; (xii)
(iii) “Chief Executive Officer” means the Chief Executive Officer of the Fund referred to in
section 12; (viii)
©LSSA 158
(iv) “convey”, in relation to the conveyance of a person in or on a motor vehicle, includes–

(a) entering or mounting the motor vehicle concerned for the purpose of being so
conveyed; and
(b) alighting from the motor vehicle concerned after having been so conveyed; (xv)
(v) “driver” means the driver referred to in section 17(1); (ii)
(vi) …
[Definition of “fuel” deleted by section 125(1) of Act No. 31 of 2005 with effect from 1 April
2006.]
(vii) “Fund” means the Road Accident Fund established by section 2 (1); (vi)
(viii) “lift club” means any club of which–
(a) every member shall have a turn to convey or cause to be conveyed by means of a
motor car the members of such a club or other persons designated by such members
to or from or to and from specified places for a specified purpose; or
(b) every member is the owner of a motor car and of which one or some of its members
shall by means of a motor car of which he or she is the owner or they are the owners,
as the case may be, convey or cause to be conveyed the members of such lift club or
other persons designated by such members to or from a specific place for a specific
purpose; (xiii)
(ix) “Minister” means the Minister of Transport; (ix)
(x) “motor car” means a motor vehicle designed or adapted for the conveyance of not more
than 10 persons, including the driver; (x)
(xi) “motor vehicle” means any vehicle designed or adapted for propulsion or haulage on a
road by means of fuel, gas or electricity, including a trailer, a caravan, an agricultural or
any other implement designed or adapted to be drawn by such motor vehicle; (xi)
(xii) “owner”, in relation to–
(a) a motor vehicle which a motor dealer has in his or her possession during the course
of his or her business and which may in terms of any law relating to the licensing of
motor vehicles not be driven or used on a public road except under the authority of a
motor dealer’s licence of which the motor dealer concerned is the holder, means that
motor dealer;
(b) a motor vehicle which has been received for delivery by a motor transport licence
holder in the course of his or her business of delivering new motor vehicles and
which has not yet been delivered by him or her, means that motor transport licence
holder;
(c) a motor vehicle which is the subject of an instalment sale transaction, means the
purchaser in the instalment sale transaction concerned;
(d) a motor vehicle under an agreement of lease for a period of at least 12 months,
means the lessee concerned; (v)
(xiii) “prescribe” means prescribe by regulation under section 26; (xvi)
(xiv) “reward”, in relation to the conveyance of any person in or on a motor vehicle, does not
include any reward rendering such conveyance illegal in terms of any law relating to the
control of road transportation services; (xiv)
(xv) “third party” means the third party referred to in section 17(1); (iv)
(xvi) “this Act” includes any regulation made under section 26.(vii)
Establishment of Fund
2. (1) There is hereby established a juristic person to be known as the Road Accident Fund.
(2)(a) Subject to section 28(1), the Multilateral Motor Vehicle Accidents Fund established by the
Agreement concluded between the Contracting Parties on 14 February 1989, shall cease
to exist, and all money credited to that fund immediately before the commencement of
this Act shall vest in the Fund, all assets, liabilities, rights and obligations, existing as
©LSSA 159
well as accruing, of the first-mentioned fund shall devolve upon the Fund, and any refer-
ence in any law or document to the said Multilateral Motor Vehicle Accidents Fund shall,
unless clearly inappropriate, be construed as a reference to the Fund.
(b) No moneys, duties or fees of office shall be payable by the Fund in respect of any noting
or endorsement or any other written alteration which may be necessary in any contract,
licence, register or other document by virtue of paragraph (a).
Object of Fund
3. The object of the Fund shall be the payment of compensation in accordance with this Act for
loss or damage wrongfully caused by the driving of motor vehicles.
Powers and functions of Fund

4. (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 estab-
lished;
(c) the management and utilisation of the money of the Fund for purposes connected with or
resulting from the exercise of its powers or the performance of its duties; and
(d) procuring reinsurance for any risk undertaken by the Fund under this Act.
(2) In order to achieve its object, the Fund may–
(a) purchase or otherwise acquire goods, equipment, land, buildings, shares, debentures,
stock, securities and all other kinds of movable and immovable property;
(b) sell, lease, mortgage, encumber, dispose of, exchange, cultivate, develop, build upon,
improve or in any other way deal with its property;
(c) invest any money not immediately required for the conduct of its business and realise, alter
or reinvest such investments or otherwise deal with such money or investments;
(d) borrow money and secure the payment thereof in such manner as it may deem fit;
(e) make donations for research in connection with any matter relating to injuries sustained in
motor vehicle accidents on such conditions as it may deem advisable;
(f) draw, draft, accept, endorse, discount, sign and issue promissory notes, bills and other
negotiable or transferable instruments, excluding share certificates;
(g) take any other action or steps which are incidental or conducive to the exercise of its
powers or the performance of its functions;
(h) make financial contributions to road safety projects and programmes approved by the
Minister.
[Paragraph (h) added by section 1 of Act No. 15 of 2001 with effect from 18 July 2001.]
(i) conclude any agreement with any person for the performance of any particular act or
particular work or the rendering of particular services contemplated in this Act.
[Paragraph (i) added by section 1(a) of Act No. 19 of 2005 with effect from 31 July 2006.]
(3) In the exercising of the powers conferred on it by this Act, the Fund may deal with any person,
partnership, association, company, corporation or other juristic person wherever seated.
(4)(a) The Fund may conclude an agreement with any organ of State regarding any matter provided
for in this Act in order to improve or ensure–
(i) the effective management of the Fund;
(ii) the efficiency of the Fund;
(iii) co-ordination of functions;
(iv) co-operative governance contemplated in Chapter 3 of the Constitution.
©LSSA 160
(b) The Minister shall, by notice in the Gazette, publish a summary of the terms of any agree-
ment concluded under paragraph (a).
[Subsection (4) added by section 1(b) of Act No. 19 of 2005 with effect from 31 July 2006.]
Financing of Fund
5. (1) The Fund shall procure the funds it requires to perform its functions–
(a) by way of a Road Accident Fund levy as contemplated in the Customs and Excise Act, 1964;
and
[Paragraph (a) substituted by section 126(1)(a) of Act No. 31 of 2005 with effect from 1 April
2006.]
(b) by raising loans.
(2) The Road Accident Fund levy paid into the National Revenue Fund in terms of the provisions
of section 47(1) of the Customs and Excise Act, 1964, less any amount of such levy refunded
under that Act, is a direct charge against the National Revenue Fund for the credit of the Fund.
[Subsection (2) substituted by section 126(1)(b) of Act No. 31 of 2005 with effect from 1 April
2006.]
(3) …
[Subsection (3) added by section 74 of Act No. 19 of 2001 with effect from 27 July 2001 and
deleted by section 126(1)(c) of Act No. 31 of 2005 with effect from 1 April 2006.]
Financial year of and budgeting for Fund

6. (1) The financial year of the Fund shall run from 1 April of any year to 31 March of the following year.
[Subsection (1) substituted by section 2 of Act No. 19 of 2005 with effect from 31 July 2006.]
(2) The Chief Executive Officer shall annually prepare a budget for the Fund for consideration by
the Board, and the Board shall submit the budget to the Minister for approval.
Use of resources and facilities of Fund

7. The resources and facilities of the Fund shall be used exclusively to achieve, exercise and
perform the object, powers and functions of the Fund, respectively.
Appointment of agents for Fund

8. (1) The Board may appoint agents, who shall have power–
(a) to investigate and to settle on behalf of the Fund the prescribed claims, contemplated in
section 17(1), arising from the driving of a motor vehicle in a case where the identity of
either the owner or the driver thereof has been established; or
(b) to commence, conduct, defend or abandon legal proceedings in connection with such claims.
(2) The Fund shall guarantee or insure the obligations of agents arising from the application of this
Act.
(3) The Fund shall cause the names of agents and the claims in respect of which they are liable to
be published in the Gazette.
Co-operation with other institutions

9. (1) The Minister may, upon the recommendation of the Board, co-operate and enter into agree-
ments with any public or private institution in respect of the reciprocal recognition of compul-
sory motor vehicle insurance or compulsory motor vehicle accidents compensation.
(2) An agreement with any public or private institution contemplated in subsection (1) shall be
signed by the Minister on behalf of the Fund.
Board of Fund
[Heading substituted by section 3(a) of Act No. 19 of 2005 with effect from 31 July 2006.]
10. (1) There shall be a Board of the Fund, constituted as follows:
(a) The Director-General: Transport or any other senior officer in the Department of Trans-
port, designated by him or her; and
©LSSA 161
[Paragraph (a) substituted by section 1(a) of Act No. 43 of 2002 with effect from 4 December
2002 and by section 3(b) of Act No. 19 of 2005 with effect from 31 July 2006.]
(b) at least 8, but not more than 12, members appointed by the Minister, who may not be
in the full-time employment of any government, and who shall each command extensive
experience in one or more of the fields of insurance, finance, medical service provision, law,
accounting and actuarial science, or in matters relating to disabled persons, road users,
commuters’ or consumers’ interests.
[Paragraph (b) substituted by section 1(b) of Act No. 43 of 2002 with effect from 4 December
2002 and by section 3(b) of Act No. 19 of 2005 with effect from 31 July 2006.]
(2) Subject to this section, a member of the Board shall–
(a) declare any interest relating to the functions, duties and obligations of the Fund or its
agents in terms of this Act, and such a member shall not vote in respect of any decision of
the Board in so far as he or she has such an interest therein;
(b) at all times act in the best interest of the Fund;
(c) hold office for a period of three years as from the date of appointment of such member
and may, subject to nomination contemplated in subsection (9), be reappointed for further
terms of office not exceeding three years at a time, provided that such a member may not
serve for more than three consecutive terms of office.
[Paragraph (c) substituted by section 3(c) of Act No. 19 of 2005 with effect from 31 July 2006.]
(3) The Minister may remove a member of the Board referred to in subsection 1(b) from office if
there is sufficient reason to do so.
(4) Only a member of the Board referred to in section (1)(b) shall, subject to subsection (2)(a), have
a vote on any matter before the Board.
[Subsection (4) substituted by section 3(d) of Act No. 19 of 2005 with effect from 31 July 2006.]
(5) The Chief Executive Officer may attend the meetings of the Board, but has no vote.
(6) The Minister shall appoint two of the members of the Board as Chairperson and Vice-Chair-
person, respectively.
[Subsection (6) substituted by section 3(e) of Act No. 19 of 2005 with effect from 31 July 2006.]
(7) The Chairperson, or in his or her absence, the Vice-Chairperson, shall at all times preside at the
meetings of the Board.
[Subsection (7) substituted by section 3(e) of Act No. 19 of 2005 with effect from 31 July 2006.]
(8) …
[Subsection (8) deleted by section 3(f) of Act No. 19 of 2005 with effect from 31 July 2006.]
(9) Whenever it is necessary to appoint a member referred to in subsection (1)(b) to the Board, but
subject to subsection (10), the Minister shall–
[The words preceding paragraph (a) substituted by section 1(c) of Act No. 43 of 2002 with effect
from 4 December 2002.]
(a) by notice in the Gazette and the national news media, invite persons or bodies who have
an interest in the operations of the Fund to nominate persons who comply with the criteria
mentioned in subsection 1(b);
(b) so publish a list of nominees received in response to such invitation, which list shall include
the names of the relevant nominators.
[Subsection (9) substituted by section 3(g) of Act No. 19 of 2005 with effect from 31 July 2006.]
(9A) The Minister shall cause the name of a member appointed under subsection (1)(b), or
reappointed under subsection (2)(c), together with such member’s area of expertise, to be
published in the Gazette.
[Subsection (9A) inserted by section 3(h) of Act No. 19 of 2005 with effect from 31 July 2006.]
(10) Whenever a position on the Board becomes vacant before the expiry of the term of office referred
to in subsection (2)(c), the Minister may appoint any other competent person, as contemplated
in subsection (1)(b), to serve for the unexpired portion of the term of office of the previous
member irrespective of when the vacancy occurs.
©LSSA 162
[Subsection (10) added by section 1(d) of Act No. 43 of 2002 with effect from 4 December
2002.]
Powers and functions of Board, and procedure
11. (1) The Board shall, subject to the powers of the Minister, exercise overall authority and control
over the financial position, operation and management of the Fund, and may inter alia–
(a) make recommendations to the Minister in respect of–
(i) the annual budget of the Fund;
(ii) any amendment of this Act;
(iii) the entering into an agreement with any institution referred to in section 9;
(iv) …
[Subparagraph (iv) deleted by section 4 of Act No. 19 of 2005 with effect from 31 July
2006.]
(v) any regulation to be made under this Act;
(b) terminate the appointment of any agent and determine the conditions on which such
appointment is effected or terminated;
(c) approve the appointment, determination of conditions of employment and dismissal by
the Chief Executive Officer of staff of the Fund on management level;
(d) approve internal rules and directions in respect of the management of the Fund;
(e) approve loans made or given by the Fund;
(f) approve donations for research in connection with any matter regarding injuries sustained
in motor vehicle accidents;
(g) determine guidelines in relation to the investment of the money of the Fund; and
(h) delegate or assign to the Chief Executive Officer and any member of the staff of the Fund
any power or duty of the Board as it may deem fit, but shall not be divested of any power
or duty so delegated or assigned, and may amend or withdraw any decision made by virtue
of such delegation or assignment.
(2) The Board may as often as it deems necessary, but shall at least once during a financial year,
or when requested by the Minister to do so, report to the Minister regarding matters dealt with
during that year or as requested by the Minister.
(3) A quorum for any meeting of the Board shall be a majority of its voting members.
(4) The Board shall meet as often as the business of the Fund may require.
(5) (a) The member of the Board referred to in section 10(1)(a) shall be reimbursed by the Fund
for all reasonable expenses incurred in attending meetings of the Board.
(b) Members of the Board referred to in section 10(1)(b) shall be remunerated by the Fund for
services rendered as such members and reimbursed for all reasonable expenses incurred in
attending meetings of the Board: Provided that the Chairperson of the Board may receive
such higher remuneration than that of the other members, as may be determined by the
Board.
(6) (a) Resolutions of the Board shall, whenever practicable, be taken on the basis of consensus.
(b) If consensus cannot be reached and except where otherwise expressly provided, all matters
before the Board shall be decided by a majority of the votes cast.
Chief Executive Officer and staff

12. (1) (a) The Minister shall upon the recommendation of the Board appoint the Chief Executive
Officer of the Fund on such terms and conditions of employment as the Board may deter-
mine.[Paragraph (a) substituted by section 5(a) of Act No. 19 of 2005 with effect from 31
July 2006.]
(b) The Chief Executive Officer shall be a person who is suitably qualified and experienced to
manage the day to day affairs of the Fund. [Paragraph (b) substituted by section 5(b) of
Act No. 19 of 2005 with effect from 31 July 2006.]
(2) Subject to the directions of the Board, the Chief Executive Officer shall conduct the current
©LSSA 163
business of the Fund, and he or she may–
(a) exercise the powers and shall perform the functions of the Fund mentioned in section 4(1)
(b), (c) and (d), (2) and (3);
(b) appoint, determine the conditions of employment of and dismiss the staff of the Fund,
excluding members of staff on management level;
(c) draft internal rules and directions in respect of the management of the Fund and make
recommendations in respect thereof to the Board;
(d) enter into an agreement with any person for the rendering of a particular service related
to the management of the Fund or its functions;
(e) issue guidelines to agents regarding the manner in which claims should be administered
by them on behalf of the Fund; and
(f) exercise such powers and shall perform such duties as may be delegated and assigned to
him or her by the Board under section 11(1)(h).
Annual report
13. (1) The Board shall publish an annual report containing–
(a) the audited balance sheet of the Fund together with a report by the auditor, contemplated
in section 14, in respect of such audit; and
(b) a report on the activities of the Fund during the year to which the audit relates.
(2) The Minister shall lay upon the Table in Parliament a copy of the annual report within 30 days
after rceipt thereof if Parliament is then in session, or, if Parliament is not then in session, within
30 days after the commencement of its next ensuing session.
Financial control
14. (1) The Fund shall keep proper records of all its financial transactions and its assets and liabili-
ties.
(2) (a) The accounts of the Fund shall be audited annually by the Auditor-General appointed in terms
of section 2 of the Auditor-General Act, 1989 (Act No. 52 of 1989), in accordance with the said
Act and with such other laws as may be referred to in that Act.
(b) The Auditor-General shall submit to the Board copies of any report referred to in section
6 of the Auditor-General Act, 1989.
(3) The Financial Services Board established by section 2 of the Financial Services Board Act, 1990
(Act No. 97 of 1990), shall–
(a) exercise financial supervision over the Fund in accordance with the Financial Supervision
of the Road Accident Fund Act, 1993 (Act No. 8 of 1993), and with such other laws as may
be referred to in that Act;
(b) submit copies of any reports on the business of the Fund compiled by that Board in terms
of the provisions of the Financial Supervision of the Road Accident Fund Act, 1993, to the
Board of the Fund; and
(c) consult with the Minister prior to the making of regulations under section 5 of the Finan-
cial Supervision of the Road Accident Fund Act, 1993.
Legal status of and proceedings by Fund, and limitation of certain liability

15. (1) The Fund may–
(a) institute or defend legal proceedings; and
(b) commence, conduct, defend or abandon legal proceedings in connection with claims
investigated and settled by it.
(2) An action to enforce a claim against the Fund or an agent may be brought in any competent
court within whose area of jurisdiction the occurrence which caused the injury or death took
place.
(3) No member of the Board or officer or employee of the Fund, or other person performing work
for the Fund, shall be liable for anything done in good faith in the exercise of his or her powers
©LSSA 164
or the performance of his or her functions or duties under or in terms of this Act.
Exemption from taxation
16. (1) (a) The Fund, its assets, property, income and its operation and transactions shall be exempt
from all taxation, or the Fund shall be refunded all taxation paid by it, as the case may be.
(b) The Fund shall be exempt from–
(i) all customs, excise and stamp duties; and
(ii) liability for payment, withholding or collecting of any tax or duty.
(2) Goods which have been acquired or imported free from customs or excise duty by the Fund shall
not be sold, hired out or otherwise disposed of unless authority has been obtained in advance
and any necessary duties and taxes paid.
(3) Notwithstanding subsection (1), the Fund shall not claim exemption from taxes which are no
more than charges for public utility services.
Liability of Fund and agents

17. (1) The Fund or an agent shall–
(a) subject to this Act, in the case of a claim for compensation under this section arising from
the driving of a motor vehicle where the identity of the owner or the driver thereof has
been established;
(b) subject to any regulation made under section 26, in the case of a claim for compensa-
tion under this section arising from the driving of a motor vehicle where the identity of
neither the owner nor the driver thereof has been established, be obliged to compensate
any person (the third party) for any loss or damage which the third party has suffered as
a result of any bodily injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving of a motor vehicle by any person
at any place within the Republic, if the injury or death is due to the negligence or other
wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in
the performance of the employee’s duties as employee: Provided that the obligation of the
Fund to compensate a third party for non-pecuniary loss shall be limited to compensation
for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump
sum.
(1A) (a) Assessment of a serious injury shall be based on a prescribed method adopted after consul-
tation with medical service providers and shall be reasonable in ensuring that injuries are
assessed in relation to the circumstances of the third party.
(b) The assessment shall be carried out by a medical practitioner registered as such under the
Health Professions Act, 1974 (Act No. 56 of 1974).
(2) …
(3) (a) No interest calculated on the amount of any compensation which a court awards to any third
party by virtue of the provisions of subsection (1) shall be payable unless 14 days have elapsed
from the date of the court’s relevant order.
(b) In issuing any order as to costs on making such award, the court may take into consider-
ation any written offer, including a written offer without prejudice in the course of settle-
ment negotiations, in settlement of the claim concerned, made by the Fund or an agent
before the relevant summons was served.
(4) Where a claim for compensation under subsection (1)–
(a) includes a claim for the costs of the future accommodation of any person in a hospital or
nursing home or treatment of or rendering of a service or supplying of goods to him or
her, the Fund or an agent shall be entitled, after furnishing the third party concerned with
an undertaking to that effect or a competent court has directed the Fund or the agent to
furnish such undertaking, to compensate–
(i) the third party in respect of the said costs after the costs have been incurred and on
proof thereof; or
(ii) the provider of such service or treatment directly, notwithstanding section 19(c) or
©LSSA 165
(d), in accordance with the tariff contemplated in subsection (4B);
(b) includes a claim for future loss of income or support, the amount payable by the Fund or
the agent shall be paid by way of a lump sum or in instalments as agreed upon;
(c) includes a claim for loss of income or support, the annual loss, irrespective of the actual
loss, shall be proportionately calculated to an amount not exceeding–
(i) R160 000 per year in the case of a claim for loss of income; and
(ii) R160 000 per year, in respect of each deceased breadwinner, in the case of a claim for
loss of support.
(4A) (a) The Fund shall, by notice in the Gazette, adjust the amounts referred to in subsection (4)(c)
quarterly, in order to counter the effect of inflation.
(b) In respect of any claim for loss of income or support the amounts adjusted in terms of
paragraph (a) shall be the amounts set out in the last notice issued prior to the date on
which the cause of action arose.
(4B) (a) The liability of the Fund or an agent regarding any tariff contemplated in subsections (4)
(a), (5) and (6) shall be based on the tariffs for health services provided by public health estab-
lishments contemplated in the National Health Act, 2003 (Act No. 61 of 2003), and shall be
prescribed after consultation with the Minister of Health.
(b) The tariff for emergency medical treatment provided by a health care provider contem-
plated in the National Health Act, 2003–
(i shall be negotiated between the Fund and such health care providers; and
(ii) shall be reasonable taking into account factors such as the cost of such treatment
and the ability of the Fund to pay.
(c) In the absence of a tariff for emergency medical treatment the tariffs contemplated in
paragraph (a) shall apply.
(5) Where a third party is entitled to compensation in terms of this section and has incurred costs
in respect of accommodation of himself or herself or any other person in a hospital or nursing
home or the treatment of or any service rendered or goods supplied to himself or herself or any
other person, the person who provided the accommodation or treatment or rendered the service
or supplied the goods (the supplier) may, notwithstanding section 19(c) or (d), claim an amount
in accordance with the tariff contemplated in subsection (4B) direct from the Fund or an agent
on a prescribed form, and such claim shall be subject, mutatis mutandis, to the provisions
applicable to the claim of the third party concerned, and may not exceed the amount which the
third party could, but for this subsection, have recovered.
(6) The Fund, or an agent with the approval of the Fund, may make an interim payment to the third
party out of the amount to be awarded in terms of subsection (1) to the third party in respect
of medical costs, in accordance with the tariff contemplated in subsection (4B), loss of income
and loss of support: Provided that the Fund or such agent shall, notwithstanding anything to
the contrary in any law contained, only be liable to make an interim payment in so far as such
costs have already been incurred and any such losses have already been suffered.
Liability limited in certain cases

18. (1) …
[Subsection (1) deleted by section 7(a) of Act No. 19 of 2005 with effect from 1 August 2008.]
(2) Without derogating from any liability of the Fund or an agent to pay costs awarded against it
or such agent in any legal proceedings, where the loss or damage contemplated in section 17 is
suffered as a result of bodily injury to or death of any person who, at the time of the occurrence
which caused that injury or death, was being conveyed in or on the motor vehicle concerned
and who was an employee of the driver or owner of that motor vehicle and the third party is
entitled to compensation under the Compensation for Occupational Injuries and Diseases Act,
1993 (Act No. 130 of 1993), in respect of such injury or death–
(a) the liability of the Fund or such agent, in respect of the bodily injury to or death of any
one such employee, shall be limited in total to the amount representing the difference
©LSSA 166
between the amount which that third party could, but for this paragraph, have claimed
from the Fund or such agent and any lesser amount to which that third party is entitled
by way of compensation under the said Act; and
[Paragraph (a) substituted by section 7(b) of Act No. 19 of 2005 with effect from 1
August 2008.]
(b) the Fund or such agent shall not be liable under the said Act for the amount of the
compensation to which any such third party is entitled thereunder.
(3) Without derogating from any liability of the Fund or an agent to pay costs awarded against it
or such agent in any legal proceedings, where the loss or damage contemplated in section 17
is suffered as a result of bodily injury to or death of a member of the South African National
Defence Force, other than a person referred to in subsection (2), and the third party is entitled
to compensation under the Defence Act, 1957, or another Act of Parliament governing the said
Force in respect of such injury or death–
(a) the liability of the Fund or such agent, in respect of the bodily injury to or death of any
such member of the said Force, shall be limited in total to the amount representing the
difference between the amount which that third party could, but for this paragraph, have
claimed from the Fund or such agent and any lesser amount to which that third party is
entitled by way of compensation under the said Defence Act or the said other Act; and
(b) the Fund or such agent shall not be liable under the said Defence Act or the said other Act
for the amount of the compensation to which any such third party is entitled thereunder.
(4) The liability of the Fund or an agent to compensate a third party for any loss or damage contem-
plated in section 17 which is the result of the death of any person shall in respect of funeral
expenses be limited to the necessary actual costs to cremate the deceased or to inter him or her
in a grave.
Liability excluded in certain cases

19. The Fund or an agent shall not be obliged to compensate any person in terms of section 17 for
any loss or damage–
(a) for which neither the driver nor the owner of the motor vehicle concerned would have
been liable but for section 21; or
(b) …
[Paragraph (b) deleted by section 8(a) of Act No. 19 of 2005 with effect from1 August 2008.]
(c) if the claim concerned has not been instituted and prosecuted by the third party, or on
behalf of the third party by–
(i) any person entitled to practise as an attorney within the Republic; or
(ii) any person who is in the service, or who is a representative of the state or government
or a provincial, territorial or local authority; or
(d) where the third party has entered into an agreement with any person other than the one
referred to in paragraph (c)(i) or (ii) in accordance with which the third party has under-
taken to pay such person after settlement of the claim–
(i) a portion of the compensation in respect of the claim; or
(ii) any amount in respect of an investigation or of a service rendered in respect of the
handling of the claim otherwise than on instruction from the person contemplated in
paragraph (c)(i) or (ii); or
(e) suffered as a result of bodily injury to any person who–
(i) unreasonably refuses or fails to subject himself or herself, at the request and cost
of the Fund or such agent, to any medical examination or examinations by medical
practitioners designated by the Fund or agent;
(ii) refuses or fails to furnish the Fund or such agent, at its or the agent’s request and
costs, with copies of all medical reports in his or her possession that relate to the
relevant claim for compensation; or
(iii) refuses or fails to allow the Fund or such agent at its or the agent’s request to
inspect all records relating to himself or herself that are in the possession of any
©LSSA 167
hospital or his or her medical practitioner; or
(f) if the third party refuses or fails–
(i) to submit to the Fund or such agent, together with his or her claim form as prescribed
or within a reasonable period thereafter and if he or she is in a position to do so, an
affidavit in which particulars of the accident that gave rise to the claim concerned
are fully set out; or
(ii) to furnish the Fund or such agent with copies of all statements and documents
relating to the accident that gave rise to the claim concerned, within a reasonable
period after having come into possession thereof; or
(g) suffered as a result of an emotional shock sustained by that person when that person
witnessed or observed or was informed of the bodily injury or the death of another person
as a result of the driving of a motor vehicle.
[Paragraph (g) added by section 8(b) of Act No. 19 of 2005 with effect from1 August 2008.]
Presumptions regarding driving of motor vehicle

20. (1) For the purposes of this Act a motor vehicle which is being propelled by any mechanical,
animal or human power or by gravity or momentum shall be deemed to be driven by the person
in control of the vehicle.
(2) For the purposes of this Act a person who has placed or left a motor vehicle at any place shall
be deemed to be driving that motor vehicle while it moves from that place as a result of gravity,
or while it is stationary at that place or at a place to which it moved from the first-mentioned
place as a result of gravity.
(3) Whenever any motor vehicle has been placed or left at any place, it shall, for the purposes of
this Act, be presumed, until the contrary is proved, that such vehicle was placed or left at such
place by the owner of such vehicle.
Abolition of certain common law claims

21. (1) No claim for compensation in respect of loss or damage resulting from bodily injury to or the
death of any person caused by or arising from the driving of a motor vehicle shall lie–
(a) against the owner or driver of a motor vehicle; or
(b) against the employer of the driver.
(2) Subsection (1) does not apply–
(a) if the Fund or an agent is unable to pay any compensation; or
(b) to an action for compensation in respect of loss or damage resulting from emotional
shock sustained by a person, other than a third party, when that person witnessed or
observed or was informed of the bodily injury or the death of another person as a result
of the driving of a motor vehicle.
Submission of information to Fund, agent and third party

22. (1) (a) When, as a result of the driving of a motor vehicle, any person other than the driver of that
motor vehicle has been killed or injured, the owner and the driver, if the driver is not the owner,
of the motor vehicle shall, if reasonably possible within 14 days after the occurrence, furnish
the Fund on the prescribed form with particulars of the occurrence together with the prescribed
statements, and the Fund shall furnish such information to the agent who in terms of section
8 is responsible for any claim arising from the occurrence.
(b) Whenever the question arises whether it was reasonably possible to furnish the Fund
with the information contemplated in paragraph (a) within 14 days after the occurrence,
the onus of proving that it was not reasonably possible to do so shall be on the person
who in terms of that paragraph must so furnish the information.
(2) The agent or the Fund shall within a reasonable period after the third party has complied with
the requirements contemplated in section 19(f)(i), furnish the third party or his or her agent
with a copy of the information and statements which the owner or driver furnished in terms of
©LSSA 168
subsection (1), together with all statements which were or are obtained from witnesses to the
accident.
Prescription of claim
23. (1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2)
and (3), the right to claim compensation under section 17 from the Fund or an agent in respect
of loss or damage arising from the driving of a motor vehicle in the case where the identity of
either the driver or the owner thereof has been established, shall become prescribed upon the
expiry of a period of three years from the date upon which the cause of action arose.
(2) Prescription of a claim for compensation referred to in subsection (1) shall not run against–
(a) a minor;
(b) any person detained as a patient in terms of any mental health legislation; or
(c) a person under curatorship.
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 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.
[Subsection (3) substituted by section 10 of Act No. 19 of 2005 with effect from 1 August
2008.]
(4) Notwithstanding section 36 of the Compensation for Occupational Injuries and Diseases Act,
1993 (Act No. 130 of 1993), any right under subsection 1(b) of that section to recover an
amount which under the said Act is required to be paid to a third party in circumstances other
than those mentioned in section 18 (2) of this Act shall for the purposes of subsections (1) and
(3) be deemed to be a right to claim compensation under section 17 of this Act arising on the
same date as the cause of action of such third party under the said section 17: Provided that if
the recovery of any such amount has been debarred by virtue of this subsection, any compen-
sation thereafter awarded to the third party under this Act shall be reduced by the amount
concerned.
(5) Notwithstanding section 149ter of the Defence Act, 1957 (Act No. 44 of 1957), or of a similarly
worded section of another Act of Parliament governing the South African National Defence
Force, any right under the said sections to recover an amount which under the said legislation
is required to be paid to a third party in circumstances other than those mentioned in section
18(3), shall for the purposes of subsections (1) and (3) be deemed to be a right to claim compen-
sation under section 17 of this Act arising on the same date as the cause of action of such third
party under the said section 17: Provided that if the recovery of any such amount has been
debarred by virtue of this subsection, any compensation thereafter awarded to the third party
under this Act shall be reduced by the amount concerned.
Procedure
24. (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;
(b) be sent by registered post or delivered by hand to the Fund at its principal, branch or
regional office, or to the agent who in terms of section 8 must handle the claim, at the
agent’s registered office or local branch office, and the Fund or such agent shall at the
time of delivery by hand acknowledge receipt thereof and the date of such receipt in
writing.
(2) (a) The medical report shall be completed on the prescribed form by the medical practitioner who
treated the deceased or injured person for the bodily injuries sustained in the accident from
which the claim arises, or by the superintendent (or his or her representative) of the hospital
where the deceased or injured person was treated for such bodily injuries: Provided that, if
the medical practitioner or superintendent (or his or her representative) concerned fails to
complete the medical report on request within a reasonable time and it appears that as a result
of the passage of time the claim concerned may become prescribed, the medical report may be
completed by another medical practitioner who has fully satisfied himself or herself regarding
the cause of the death or the nature and treatment of the bodily injuries in respect of which the
claim is made.
©LSSA 169
(b) Where a person is killed outright in a motor vehicle accident the completion of the medical
report shall not be a requirement, but in such a case the form referred to in subsection
1(a) shall be accompanied by documentary proof, such as a copy of the relevant inquest
record or, in the case of a prosecution of the person who allegedly caused the deceased’s
death, a copy of the relevant charge sheet from which it can clearly be determined that
such person’s death resulted from the accident to which the claim relates.
(3) A claim by a supplier for the payment of expenses in terms of section 17(5) shall be in the
prescribed form, and the provisions of this section shall apply mutatis mutandis in respect of
the completion of such form.
(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 subsec-
tion (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.
(6) No claim shall be enforceable by legal proceedings commenced by a summons served on the
Fund or an agent–
(a) before the expiry of a period of 120 days from the date on which the claim was sent or
delivered by hand to the Fund or the agent as contemplated in subsection (1); and
(b) before all requirements contemplated in section 19(f) have been complied with:
Provided that if the Fund or the agent repudiates in writing liability for the claim before
the expiry of the said period, the third party may at any time after such repudiation serve
summons on the Fund or the agent, as the case may be.
Right of recourse of Fund or agent

25. (1) When the Fund or an agent has paid any compensation in terms of section 17 the Fund or
agent may, subject to subsections (2) and (3), without having obtained a formal cession of
the right of action, recover from the owner of the motor vehicle concerned or from any person
whose negligence or other wrongful act caused the loss or damage concerned, so much of the
amount paid by way of compensation as the third party concerned could, but for the provisions
of section 21, have recovered from the owner or from such person if the Fund or agent had not
paid any such compensation.
(2) The Fund’s or agent’s right of recourse against the owner of a motor vehicle under subsection
(1) shall only be applicable in any case where the motor vehicle at the time of the accident
which gave rise to the payment of the compensation was being driven–
(a) by a person other than the owner and the driver was under the influence of intoxicating
liquor or of a drug to such a degree that his or her condition was the sole cause of such
accident and the owner allowed the driver to drive the motor vehicle knowing that the
driver was under the influence of intoxicating liquor or of a drug; or
(b) by a person other than the owner without the driver holding a licence issued under any
law governing the licensing of drivers of motor vehicles which the driver was required to
hold, or the driver, being the holder of a learner’s or other restricted licence issued under
such law, failed, while he or she was so driving the motor vehicle, to comply with the
requirements or conditions of such learner’s or restricted licence, and the owner allowed
the driver to drive the motor vehicle knowing that the driver did not hold such a licence
or that the driver failed to comply with the requirements or conditions of a learner’s or
restricted licence, as the case may be; or
(c) by the owner and he or she was under the influence of intoxicating liquor or of a drug to
©LSSA 170
such a degree that his or her condition was the sole cause of such accident; or
(d) by the owner without holding a licence issued under any law governing the licensing of
drivers of motor vehicles, which he or she was required to hold, or the owner, being the
holder of a learner’s or other restricted licence issued under such law, failed, while he or
she was so driving the motor vehicle, to comply with the requirements or conditions of
such learner’s or restricted licence; or
(e) by the owner and he or she failed to comply with any requirement contemplated in section
22(1) with reference to the said accident, or knowingly furnished the Fund or the agent
with false information relating to such accident and the Fund or agent was materially
prejudiced by such failure or by the furnishing of such false information, as the case may
be.
(3) The provisions of subsection (2)(c), (d) and (e) shall apply mutatis mutandis in respect of any
right of recourse by the Fund or the agent against any person who, at the time of the accident
which gave rise to the payment of the compensation, was driving the motor vehicle concerned
with or without the consent of its owner.
Regulations
26. (1) The Minister may 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.
(1A) Without derogating from the generality of subsection (1), the Minister may make regulations
regarding–
(a) the method of assessment to determine whether, for purposes of section 17, a serious
injury has been incurred;
(b) injuries which are, for the purposes of section 17, not regarded as serious injuries;
(c) the resolution of disputes arising from any matter provided for in this Act.
(1B) Any regulation made under subsection (1A)(a) or (b) must be made after consultation with the
Minister of Health.
2. 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 months.
Repeal and amendment of laws

27. (1) Subject to section 28–
(a) the laws mentioned in Part I of the Schedule are hereby repealed; and
(b) all laws, including proclamations and decrees, which amended the laws mentioned in
Part I of the Schedule are hereby repealed in so far as they so amended those laws.
(2) The Financial Supervision of the Multilateral Motor Vehicle Accidents Fund Act, 1993 (Act No.
8 of 1993), is hereby amended as indicated in Part II of the Schedule.
Savings
28. (1) Notwithstanding section 2(2), this Act shall not apply in relation to a claim for compensation
in respect of which the occurrence concerned took place prior to the commencement of this Act
in terms of a law repealed by section 27, and any such claim shall be dealt with as if this Act
had not been passed.
(2) The repeal of any law by section 27 shall not affect–
(a) the previous operation of such law or anything duly done or permitted under such law; or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under such law;
or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed in
terms of such law; or
©LSSA 171
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as if this Act has not been passed.
Short title and commencement

29. This Act shall be called the Road Accident Fund Act, 1996, and shall come into operation on a
date fixed by the President by proclamation in the Gazette, except section 10, which shall be
deemed to have come into operation on 21 April 1996.
schedule
part I
No. and year of law Short title

Act No. 32 of 1980 Compulsory Motor Vehicle Insurance Act, 1980 (Bophuthat-
swana)
Act No. 28 of 1986 Motor Vehicle Accidents Act, 1986 (Ciskei)
Act No. 84 of 1986 Motor Vehicle Accidents Act, 1986
Decree No. 9 of 1988 Decree No. 9 (Motor Vehicle Accidents) of 1988 (Transkei)
Act No. 5 of 1989 Multilateral Motor Vehicle Accidents Fund Act, 1989
(Bophuthatswana)
Act No. 7 of 1989 Multilateral Motor Vehicle Accidents Fund Act, 1989 (Venda)
Decree No. 9 of 1989 Decree No. 9 (Multilateral Motor Vehicle Accidents Fund) of
1989 (Transkei)
Act No. 17 of 1989 Multilateral Motor Vehicle Accidents Fund Act, 1989 (Ciskei)
Act No. 93 of 1989 Multilateral Motor Vehicle Accidents Fund Act, 1989
PART II
The Financial Supervision of the Multilateral Motor Vehicle Accidents Fund Act, 1993, is hereby
amended–
(a) by the substitution for the long title of the following long title:
ACT
To further regulate the affairs of the [Multilateral Motor Vehicle Accidents] Road Accident Fund;
and to provide for matters connected therewith.”;
(b) by the substitution in section 1 for the definition of “Fund” of the following definition:
“‘Fund’ means the [Multilateral Motor Vehicle Accidents] Road Accident Fund mentioned in
the [Multilateral Motor Vehicle Accidents Fund Act, 1989 (Act No. 93 of 1989)] Road Acci-
dent Fund Act, 1996; and
(c) by the substitution for section 6 of the following section:
“Short title
6. This Act shall be called the Financial Supervision of the Road Accident Fund Act, 1993.”.
©LSSA 172
19.2 PROCLAMATION R31 OF 1997: RAF ACT INTO OPERATION ON 1 MAY 1997
PROCLAMATION
by the
President of the Republic of South Africa
No. R. 31, 1997

ROAD ACCIDENT FUND ACT, 1996 (ACT No. 56 OF 1996)
In terms of section 29 of the Road Accident Fund Act, 1996 (Act No. 56 of 1996), I hereby determine 1
May 1997 as the date on which the said Act shall come into operation.
Given under my Hand and the Seal of the Republic of South Africa at Pretoria, this Ninth day of April,
One thousand Nine hundred and Ninety-seven.
N. R. MANDELA
President
By Order of the President-in-Cabinet:
S. R. MAHARAJ
Minister of the Cabinet
19.3 FINANCIAL SUPERVISION OF THE ROAD ACCIDENT FUND ACT, 1993

(ACT No. 8 OF 1993)
FINANCIAL SUPERVISION OF THE ROAD ACCIDENT FUND ACT, 1993 (ACT No. 8 OF 1993)
(Afrikaans text signed by the State President.)

(Assented to 26 February 1993.)
as amended by
Road Accident Fund Act, 1996 (Act No. 56 of 1996)
ACT
To further regulate the affairs of the Road Accident Fund; and to provide for matters connected
therewith.
[Long title substituted by item (a) of Part II of the Schedule to Act No. 56 of 1996.]
1. Definitions
In this Act, unless the context otherwise indicates–
“executive officer” means the person appointed as such in terms of section 13 of the Financial
Services Board Act, 1990 (Act 97 of 1990);
“Financial Services Board” means the Financial Services Board mentioned in the Financial
Services Board Act, 1990;
“Fund” means the Road Accident Fund mentioned in the Road Accident Fund Act, 1996;
[Definition of “Fund” substituted by item (b) of Part II of the Schedule to Act No. 56 of 1996.]
“Minister” means the Minister of Finance.
2. Insurance Act, 1943, to apply
(1) Subject to any directions of the executive officer, the provisions of the Insurance Act,
1943 (Act 27 of 1943), in relation to an insurer registered in terms of that Act to carry on
short-term insurance business, shall apply to the Fund.
(2) The Fund shall furnish to the executive officer such returns as may by virtue of the provi-
sions of subsection (1) be required by the executive officer.
©LSSA 173
(3) The Fund shall obtain the opinion of an actuary as defined in section 1 of the Insurance
Act, 1943, or of a registered accountant and auditor, whenever required, by virtue of the
provisions of subsection (1), by the executive officer in respect of such aspects of the
business of the Fund as the executive officer may determine.
3. Returns
The returns mentioned in section 2(2) may include returns as from a date determined by the
executive officer in respect of–
(a) the assets and liabilities in respect of any business carried on by the Fund before the said
date; and
(b) the assets and liabilities in respect of any new business carried on by the Fund after that
date.
4. Reports by Executive Officer
The executive officer shall within six months after the end of every financial year of the Fund
submit a report on the business of the Fund carried on during the financial year concerned to
the Minister, and the Minister shall within 14 days after receipt of such submission lay the
report upon the Table in Parliament, if Parliament is then in session or, if Parliament is not then
in session, within 14 days after the commencement of its next ensuing session.
5. Regulations
The Financial Services Board may make regulations in relation to any matter which the Board
deems necessary or expedient to prescribe in order to achieve the objects of this Act.
6. Short title
This Act shall be called the Financial Supervision of the Road Accident Fund Act, 1993.
[Section 6 substituted by item (c) of Part II of the Schedule to Act No. 56 of 1996.]
Note: Date of commencement: 1 June 1993.
©LSSA 174
19.4 PROCLAMATION R29 OF 2008: ROAD ACCIDENT FUND AMENDMENT ACT,

2005 (ACT No. 19 OF 2005) INTO OPERATION ON 1 AUGUST 2008
©LSSA 175
19.5 ROAD ACCIDENT FUND REGULATIONS, 2008 INTO OPERATION ON 1 AUGUST
2008, AS AMENDED ON 15 MAY 2013
Notice Title ROAD ACCIDENT FUND ACT (56 of 199: ROAD ACCIDENT
FUND REGULATIONS, 2008)
Gazette Number 31249
Notice Number 770
Regulation Gazette Number 8927
Gazette Date 2008-07-21
Notice Type Government Notices
Department DEPARTMENT OF TRANSPORT
[PLEASE NOTE: The underlined parts have been included as a result of the amendments to the Regula-
tions No. R. 347 in GG 36452 of 15 May 2013 that also became operative on the same date.]
©LSSA 176
ROAD ACCIDENT FUND ACT, 1996

ROAD ACCIDENT FUND REGULATIONS, 2008
The Minister of Transport has, under section 26 of the Road Accident Fund Act, 1996 (Act No. 56 of
1996), made the Regulations in the
Schedule hereto.
SCHEDULE
1. Definitions
In these Regulations, unless the context otherwise indicates-
(i) "appeal tribunal" means the tribunal constituted in terms of regulation 3(8);
(ii) "AMA Guides" means the American Medical Association's Guides to the Evaluation of Perma-
nent Impairment, Sixth Edition, or such edition thereof as the Fund may from time to time give
notice of in the Gazette;
'"complications' means any medical complication and, or. functional impairment relating to the
third party, which in the opinion of the medical practitioner, could result in the injury being
assessed as serious in terms of sub regulation 3(1)(b)(ii) and/or 3(1)(b)(iii):".
(iii) "dispute resolution form" means a duly completed form RAF5, attached hereto as annexure E,
or such amendment or substitution thereof as the Fund may from time to time give notice of in
the Gazette.
(iv) "day" means any day other than a Saturday, Sunday orpublic holiday;
(v) "fiscal year" means the period commencing on the first day of March of a given year and ending
on the last day of February of the subsequent year;
(vi) "health care provider" means a health care provider, as defined in the National Health Act, 2003
(Act No. 61 of 2003).
(vii) "health practitioner" means a practitioner of a profession registrable in terms of the Health
Professions Act, 1974 (Act No. 56 of 1974);
(viii) "medical practitioner" means a person registered as such under the Health Professions Act,
1974 (Act No. 56 of 1974);
(ix) "Registrar" means the Registrar of the Health Professions Council of South Africa established
in terms of section 2 of the Health Professions Act, 1974 (Act No. 56 of 1974).
(x) "serious injury assessment report" means a duly completed form RAF4, attached hereto as
annexure D, or such amendment or substitution thereof as the Fund may from time to time give
notice of in the Gazette.
2. Further provision for liability of Fund in terms of section 17(1)(b)
(1) (a) A claim for compensation referred to in section 17(1)(b) of the Act shall be sent or delivered to
the Fund in accordance with the provisions of section 24 of the Act, within two years from the
date upon which the cause of action arose.
(b) A right to claim compensation from the Fund under section 17(1)(b) of the Act in respect of loss
or damage arising from the driving of a motor vehicle in the case where the identity of neither
the owner nor the driver thereof has been established, shall become prescribed upon the expiry
of a period of two years from the date upon which the cause of action arose, unless a claim has
been lodged in terms of paragraph (a).
(c) In the event of a claim having been lodged in terms of paragraph (a) such claim shall not
prescribe before the expiry of a period of five years from the date upon which the cause of
action arose.
(2) Notwithstanding anything to the contrary contained in any law a claim for compensation
referred to in section 17(1)(b) of the Act shall be sent or delivered to the Fund within two years
from the date upon which the cause of action arose irrespective of any legal disability to which
the third party concerned may be subject.
3. Assessment of serious injury in terms of section 17(1)(A)
(1) (a) A third party who wishes to claim compensation for non- pecuniary loss shall submit himself
or herself to an assessment by a medical practitioner in accordance with these Regulations.
©LSSA 177
"(b)(i) Any one, or any combination, of the following injuries, are for purposes of section 17 of the
Act, not to be regarded as a serious injury and no injury shall be assessed as serious if the
injury meets the following description -
(aa) any whiplash type or soft tissue injury to the neck or back;
(bb) any strain, tear, crush or damage to any muscle or soft tissue;
(cc) any mild sprain, strain, tear or damage to any ligament of any joint unless there is
continuing instability of the joint;
(dd) any lacerations, abrasion, cut, tear, or damage to skin or soft tissue, provided there is no
resulting permanent serious disfigurement;
(ee) any complete or partial amputation of the little finger of either hand, or both the right and
left hand;
(ff) fracture of any finger of either hand, or both the right and left hand;
(gg) any complete or partial amputation of any one toe of either foot or both the right and left
foot unless there is partial or complete amputation of the big toe;
(hh) fracture of any toe of either foot, or both the right and left foot;
(ii) any damage to or loss of a tooth or any number of teeth;
(jj) superficial burns to any part of the body;
(kk) superficial injury to one or both eyes;
(ll) fracture of the nasal bone or damage to the nasal cartilage;
(mm) any scar or scars caused by any injury listed in items
(aa) to (ll). provided there is no resulting permanent serious disfigurement;
(nn) any bruising or bleeding into the soft tissue as a result of any injury listed in items (aa)
to (mm);
(oo) any sequelae in the form of pain or discomfort as a result of any injury listed in items (aa)
to (nn); and
(pp) any mild or moderate form of depression, anxiety, chronic headaches or post-traumatic
stress disorder;
Provided that, if any complication arises from any one, or any combination of the injuries listed in
items (aa) to (pp), the third party shall be entitled to be assessed in terms of sub regulations 3(1)(b)
(ii) and (3)(1)(b)(iii).".
(ii) If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the
AMA Guides, the injury shall be assessed as serious.
(iii) An injury which does not result in 30 per cent or mor Impairment of the Whole Person may only
be assessed as serious if that injury:
(aa) resulted in a serious long-term impairment or loss of a body function;
(bb) constitutes permanent serious disfigurement;
(cc) resulted in severe long-term mental or severe long-term behavioural disturbance or
disorder; or
(dd) resulted in loss of a foetus.
(iv) The AMA Guides must be applied by the medical practitioner in accordance with operational
guidelines or amendments, if any, published by the Minister from time to time by notice in the
Gazette.
(v) Despite anything to the contrary in the AMA Guides, in assessing the degree of impairment, no
number stipulated in the AMA Guides is to be rounded up or down, regardless of whether the
number represents an initial, an intermediate, a combined or a final value, unless the rounding
is expressly required or permitted by the guidelines issued by the Minister.
(vi) The Minister may approve a training course in the application of the AMA Guides by notice in
the Gazette and then the assessment must be done by a medical practitioner who has success-
fully completed such a course.
(2) "(a) Unless otherwise provided in these Regulations -
©LSSA 178
(i) the costs of an assessment shall not exceed R 2 650.00 (excluding VAT), or such adjusted tariff
of fees determined by the Minister from time to time by notice in the Gazette;
(ii) no amount in excess of that determined in paragraph (i) shall be recoverable from the Fund or
an agent: provided that the amount determined in paragraph (i) excludes the additional cost of
information, records or reports required by the medical practitioner to perform the assessment,
the cost of which shall be in addition to the aforementioned amount; and
(iii) the costs of an assessment shall be borne by the Fund or an agent only if the third party's injury
is found to be serious and the Fund or the agent attracts overall liability in terms of the Act.";
(b) The Fund or an agent may at its cost, at the “written” request of a third party, make available
to the third party the services of, or, alternatively, refer the third party to-
(i) a medical practitioner for purposes of an assessment in accordance with these Regulations; and
(ii) a health care provider, for purposes of collecting and collating information to facilitate such an
assessment if the Fund decides that there is a reasonable prospect that a medical practitioner
may assess the injury to be serious and the third party lacks sufficient funds to obtain an
assessment.
"(2A) (a) The Fund or an agent must determine a request by a third party in terms of sub regulation
(2) within 60 days from the date on which the written request was sent by registered post or
delivered by hand to the Fund or an agent.
(b) A request by a third party in terms of sub regulation (2) shall not interrupt prescription.";
(3) (a) A third party whose injury has been assessed in terms of these Regulations shall obtain from
the medical practitioner concerned a serious injury assessment report.
(b) A claim for compensation for non-pecuniary loss in terms of section 17 of the Act shall be
submitted in accordance with the Act and these Regulations, provided that:
(i) the serious injury assessment report may be submitted separately after the submission of the
claim at any time before the expiry of the periods for the lodgement of the claim prescribed in
the Act and these Regulations; and
(ii) where maximal medical improvement, as provided in the AMA Guides, in respect of the third
party's injury has not yet been reached and where the periods for lodgement of the claim
prescribed in terms of the Act and these Regulations will expire before such improvement is
reached, the third party shall, notwithstanding anything to the contrary contained in the AMA
Guides, submit himself or herself to an assessment and lodge the claim and the serious injury
assessment report prior to the expiry of the relevant period.
(c) The Fund or an agent shall only be obliged to compensate a third party for non-pecuniary loss
as provided in the Act if a claim is supported by a serious injury assessment report submitted
in terms of the Act and these Regulations and the Fund or an agent is satisfied that the injury
has been correctly assessed as serious in terms of the method provided in these Regulations.
(d) If the Fund or an agent is not satisfied that the injury has been correctly assessed, the Fund or
an agent must:
(i) reject the serious injury assessment report and furnish the third party with reasons for the
rejection; or
(ii) direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a
further assessment to ascertain whether the injury is serious, in terms of the method set out in
these Regulations, by a medical practitioner designated by the Fund or an agent.
"(dA) The Fund or an agent must, within 90 days from the date on which the serious injury assess-
ment report was sent by registered post or delivered by hand to the Fund or to the agent who in
terms of section 8 must handle the claim, accept or reject the serious injury assessment report
or direct that the third party submit himself or herself to a further assessment.";
(e) The Fund or an agent must either accept the further assessment or dispute the further assess-
ment in the manner provided in these Regulations.
(4) 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 or the agent disputing the assessment performed by
©LSSA 179
a medical practitioner in terms of these Regulations, the disputant shall:
(a) within 90 days of being informed of the rejection or the assessment, notify the Registrar that
the rejection or the assessment is disputed by lodging a dispute resolution form with the Regis-
trar;
(b) in such notification set out the grounds upon which the rejection or the assessment is disputed
and include such submissions, medical reports and opinions as the disputant wishes to rely
upon; and
(c) if the disputant is the Fund or agent, provide all available contact details pertaining to the third
party.
(5) (a) If the Registrar is not notified that the rejection or the assessment is disputed in the manner
and within the time period provided for in subregulation (4), the rejection or the assessment
shall become final and binding unless an application for condonation is lodged with the Regis-
trar as well as sent or delivered to the other party to the dispute.
(b) A written response to the application for condonation may be submitted with the Registrar
within 15 days after receipt of the application for condonation and a reply thereto may be
lodged within 10 days.
(c) Every application for condonation, response and reply shall-
(i) be clear and succinct and to the point;
(ii) furnish fairly all such information as is necessary to enable the appeal tribunal to decide
the application; and
(iii) deal with the merits of the dispute only insofar as is necessary for the purpose of-ex-
plaining and supporting the grounds for or against condonation.
(d) The Registrar shall refer the application for condonation together with any response and reply
to the appeal tribunal.
(e) The appeal tribunal when considering the application for condonation may call for the submis-
sion of-
(i) further information; or
(ii) any additional documentation;
and the party concerned shall lodge with the Registrar the requested further information and
documents within the period stipulated by the appeal tribunal.
(f) If either party fails to comply with the direction given by the appeal tribunal, the appeal tribunal
may dispose of the application in its incomplete form without having regard to the further
information or documents called for.
(g) The appeal tribunal shall decide whether or not to condone the late notification of a dispute and
inform the parties accordingly.
(h) If late notification is not condoned, the rejection or the assessment shall become final and
binding.
(6) The Registrar shall within 15 days of having been notified of a dispute in terms of subreg-
ulation (4), or notified that condonation is granted to a disputant in terms of subregulation
(5), inform in writing the other party of the dispute and provide copies of all the submissions,
medical reports and opinions submitted by the disputant to the other party.
(7) After being informed in terms of subregulation (6), the other party may:
(a) in writing and within 60 days notify the Registrar which submissions, medical reports and
opinions are placed in dispute; and
(b) attach to such notification the submissions, medical reports and opinions relied upon.
(8) "(a) The Registrar shall within 60 days after receiving notification from the other party, or after the
expiry of the 60 day period referred to in sub regulation (7), refer the dispute for consideration
by an appeal tribunal paid for by the Fund.".
(b) The appeal tribunal consists of three independent medical practitioners with expertise in the
appropriate areas of medicine, appointed by the Registrar, who shall designate one of them as
the presiding officer of the appeal tribunal.
©LSSA 180
(c) The Registrar may appoint an additional independent health practitioner with expertise in any
appropriate health profession to assist the appeal tribunal in an advisory capacity.
(9) (a) The Registrar shall in writing inform the parties who the persons are that he or she has
appointed in terms of subregulation (8).
(b) (i) If a party is aggrieved by any one or more of the appointments made by the Registrar in terms
of subregulation (8), such party shall within 10 days deliver a written motivation to the Regis-
trar and the other party, setting forth grounds upon which the party objects to the appointment
made.
(ii) The other party may respond in writing within 10 days by delivering a response to the
Registrar and the aggrieved party.
(iii) The Registrar may, upon receipt of a written motivation, and a response thereto, if any,
either confirm the appointment made in terms of subregulation (8) or substitute any one
or more of the initial appointments made, and such decision by the Registrar shall be
final.
(10) (a) If it appears to the majority of the members of the appeal tribunal that a hearing for the
purpose of considering legal arguments may be warranted, the presiding officer of the appeal
tribunal shall notify the Registrar to this effect in writing, stating reasons.
(b) When the Registrar receives the notification he or she shall request the chairperson of the bar
council, alternatively the chairperson of the law society, of the jurisdictional area concerned, to
appoint an advocate of the High Court of South Africa, or an attorney of the High Court of South
Africa, with at least five years of experience in practice.
(c) The advocate or attorney, once appointed, shall consider the reasons submitted to the Registrar
by the presiding officer of the appeal tribunal and shall within 10 days of his or her appoint-
ment make a recommendation in writing on whether a hearing is warranted.
(d) The appeal tribunal shall consider the recommendation made by the advocate or attorney and
determine, in writing, whether the nature of the dispute warrants a hearing for the purpose of
considering legal arguments.
(e) If the appeal tribunal determines that a hearing is warranted, the appointed advocate or attorney
shall preside at the hearing and the Registrar shall-
(i) inform the parties to the dispute that a hearing will be held at a place and time deter-
mined by the appointed advocate or attorney;
(ii) inform the parties that they are entitled to legal representation, at their own cost, at the
hearing and to present legal arguments at the hearing; and
(iii) inform the parties of any additional procedures adopted by the advocate or attorney
appointed to preside at the hearing.
(f) The appointed advocate or attorney shall within 10 days of concluding the hearing make written
recommendations to the appeal tribunal in relation to the legal issues arising from the hearing.
(g) The appeal tribunal shall consider the recommendations made by the said advocate or attorney
and determine, in writing, the legal issues.
(h) If the appeal tribunal determines in terms of paragraph (d) that the nature of the dispute does
not warrant a hearing or, if it determines that such a hearing is warranted and the legal issues
arising from the hearing have been determined in terms of paragraph (g), the functions of the
appointed advocate or attorney shall cease and the appeal tribunal shall thereafter exercise any
of the powers provided for in subregulation (11).
(11) The appeal tribunal shall have the following powers:
(a) Direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a
further assessment to ascertain whether the injury is serious, in terms of the method set out in
these Regulations, by a medical practitioner designated by the appeal tribunal.
(b) Direct, on no less than five days written notice, that the third party present himself or herself in
person to the appeal tribunal at a place and time indicated in the said notice and examine the
third party's injury and assess whether the injury is serious in terms of the method set out in
these Regulations.
©LSSA 181
(c) Direct that further medical reports be obtained and placed before the appeal tribunal by one or
more of the parties.
(d) Direct that relevant pre- and post-accident medical, health and treatment records pertaining to
the third party be obtained and made available to the appeal tribunal.
(e) Direct that further submissions be made by one or more of the parties and stipulate the time
frame within which such further submissions must be placed before the appeal tribunal.
(f) Refuse to decide a dispute until a party has complied with any direction in paragraphs (a) to (e)
above.
(g) Determine whether in its majority view the injury concerned is serious in terms of the method
set out in these Regulations.
(h) Confirm the assessment of the medical practitioner or substitute its own assessment for the
disputed assessment performed by the medical practitioner, if the majority of the members of
the appeal tribunal consider it appropriate to substitute.
(i) Confirm the rejection of the serious injury assessment report by the Fund or an agent or accept
the report, if the majority of the members of the appeal tribunal consider it is appropriate to
accept the serious injury assessment report.
(12) Unless there has not been compliance with directions issued in terms of subregulation (11)(a)
to (e) above, the appeal tribunal shall notify the Registrar of its findings within 90 days after
the referral of the dispute in terms of subregulation (8), or such additional period as the Regis-
trar may on application from the appeal tribunal authorise in writing.
(13) The Registrar shall inform the parties of the findings of the appeal tribunal, which findings
shall be final and binding.
(14) (a) The Fund shall bear the reasonable costs of the Health Professions Council of South Africa
arising from subregulations (4) to (13), as agreed between the Fund and the said Council, or,
failing such agreement, as determined by the Minister after consultation with the Minister of
Health.
(b) The Fund shall bear the reasonable fees and expenses, as determined or approved by the Fund,
of the persons appointed in terms of subregulations (8) and (10)(b).
4. Further provision in respect of claim for loss of income or support in terms of section 17(4)(c)
In proportionately calculating the annual loss of income or support referred to in section 17(4)
(c) of the Act, such loss shall be calculated per fiscal year.
5. Medical tariffs in terms of section 17(4B)
(1) The liability of the Fund or an agent contemplated in section 17(4B)(a) of the Act, shall be
determined in accordance with the Uniform Patient Fee Schedule for fees payable to public
health establishments by full-paying patients, prescribed under section 90(1)(b) of the National
Health Act, 2003 (Act No. 61 of 2003), as revised from time to time.
(2) The liability of the Fund or an agent contemplated in section 17(4B)(b) of the Act shall be deter-
mined in accordance with the tariff published by the Fund from time to time in the Gazette and
such tariff shall apply only in the case of the immediate, appropriate and justifiable medical
evaluation, treatment and care required in an emergency situation in order to preserve the
person's life or bodily functions, or both.
(3) The liability of the Fund or an agent, in circumstances other than contemplated in subregula-
tions (1) and (2), including but not limited to the costs of alterations to a building or premises,
or modification of a motor vehicle, shall be based on any reasonable quotation either submitted
to or obtained by the Fund or an agent.
6. Further provision for procedural matters contemplated in section 24
(1) Any reference in section 24(1)(b) of the Act to the Fund's principal, branch or regional office, or
to an agent's registered office or local branch office, shall for the purposes of compliance with
that section, refer to such principal, branch or regional office of the Fund, or registered office or
local branch office of an agent, as the case may be-
(a) which is situated nearest to the location where the occurrence from which the claim arose took
place; or
©LSSA 182
b) which is situated nearest to the location where the third party resides.
(2) (a) The Fund or an agent shall at any time after having received a claim for compensation referred
to in s 17(1) of the Act, be entitled to require the third party concerned to submit to questioning
by the Fund or an agent at a place indicated by the Fund or an agent or to make a further sworn
statement regarding the circumstances of the occurrence concerned or any aspect of it.
(b) In the event of the Fund or an agent requiring the third party to submit to questioning or to
make a sworn statement, or both, in terms of paragraph (a), no claim shall be enforceable by
legal proceedings commenced by a summons served on the Fund or an agent before the third
party has submitted himself or herself to questioning or has made the sworn statement, or
both.
(3) The Fund or an agent may at its cost, at the written request of the third party, pay directly to
the medical practitioner or hospital concerned the reasonable necessary costs associated with
the completion of the medical report contemplated in section 24(2) (a) of the Act, if the Fund
decides that the third party lacks sufficient funds to obtain the medical report and the Fund
foresees a reasonable prospect that the third party could succeed with the merits of the claim.
(4) The Fund or an agent must determine a request by a third party in terms of sub regulation (3)
within 60 days from the date on which the written request was sent by registered post or deliv-
ered by hand to the Fund.
(5) A request by a third party in terms of sub regulation (3) shall not interrupt prescription."
7. Forms
(1) A claim for compensation and accompanying medical report referred to in section 24(1)(a)
of the Act, shall be in the form RAF 1 attached as Annexure A to these Regulations, or such
amendment or substitution thereof as the Fund may from time to time give notice of in the
Gazette.
(2) A claim by a supplier referred to in section 24(3) of the Act shall be in the form RAF 2 attached
as Annexure B to these Regulations, or such amendment or substitution thereof as the Fund
may from time to time give notice of in the Gazette.
(3) The particulars and statements referred to in section 22(1)(a) of the Act shall be furnished to
the Fund in the form RAF 3, attached as Annexure C to these Regulations, or such amendment
or substitution thereof as the Fund may from time to time give notice of in the Gazette.
8. Transitional arrangement, and repeal of regulations
(1) These Regulations shall not apply to any claim for compensation under section 17 of the Act in
respect of which the cause of action arose prior to the date on which these Regulations came
into operation, and any such claim shall be dealt with as if these Regulations had not come
into operation.
(2) Subject to subregulation (1) the Regulations promulgated by Government Notice No. R. 609 of
25 April 1997 are hereby repealed.
9. Commencement
These Regulations shall come into operation on 1 August 2008.
_________________________________________________________________________
THIRD PARTY CLAIM FORM - RAF 1
SUPPLIER CLAIM FORM - RAF 2
ACCIDENT REPORT FORM - RAF 3
(SECTIONS 22 (1)(a) OF ACT No. 56 OF 1996)
SERIOUS INJURY ASSESSMENT REPORT - RAF 4
ANNEXURE A - UPPER EXTREMITY IMPAIRMENT EVALUATION
ANNEXURE B - LOWER EXTREMITY IMPAIRMENT EVALUATION
ANNEXURE C - SPINE AND PELVIS IMPAIREMENT EVALUATION
NOTIFICATION OF DISPUTE - RAF 5
©LSSA 183
19.6 ROAD ACCIDENT FUND FORMS
19.6.1 RAF1 – THIRD PARTY CLAIM FORM
©LSSA 184
©LSSA 185
©LSSA 186
©LSSA 187
©LSSA 188
©LSSA 189
©LSSA 190
©LSSA 191
©LSSA 192
©LSSA 193
©LSSA 194
©LSSA 195
19.6.2 RAF 2 – SUPPLIER CLAIM FORM
©LSSA 196
©LSSA 197
©LSSA 198
©LSSA 199
©LSSA 200
19.6.3 RAF3 - ACCIDENT REPORT FORM
©LSSA 201
©LSSA 202
©LSSA 203
©LSSA 204
©LSSA 205
©LSSA 206
©LSSA 207
19.6.4 RAF4 – SERIOUS INJURY ASSESSMENT REPORT
©LSSA 208
©LSSA 209
©LSSA 210
©LSSA 211
19.6.5 RAF5 – NOTIFICATION OF DISPUTE
©LSSA 212
©LSSA 213
©LSSA 214
©LSSA 215
D. PRACTICE NOTES: PUBLIC LIABILITY
20. PUBLIC LIABILITY

Public liability has been described as the legal conviction of the community which dictates what
is fair, reasonable and equitable. The court’s assessment of public policy changes as the values of
society alters.
20.1 TYPES OF PUBLIC LIABILITY

You can claim for a variety of damages due to a multitude of causes if the company or property owner
can be shown to be negligent. There is also circumstances in which the possibility of a claim will arise
where a company/ property owner or state organ fails to perform a duty as expected by them.
20.1.1 CIRCUMSTANCES WHICH MAY LEAD TO A PUBLIC LIABILITY BASED CLAIM

FOR PERSONAL INJURIES
If an air conditioner mounted outside of the building falls and crashes onto a car. Or if tenant or
member of a gym slips on the way to the pool; a pothole in the road causes your vehicle to overturn
and you sustain injuries, an accident occur at an amusement park causing injuries.
If you were involved in such an accident at work or accident at the fault of a business or govern-
ment, where you were not at fault, you may want to claim damages from the insured party. Companies
are usually covered by their insurance companies for public liability, and if you are the legal advisor
of any company or entity that might have public liability it will be wise to ensure that such an entity
is duly covered by its insurance for unfortunate eventualities which might result in financial ruin if
not prepared.
20.2 REQUIREMENTS FOR A SUCCESSFUL CLAIM AGAINST THE RESPONSIBLE

PARTY
• The injured must first prove that the damages suffered by him/her is a direct result of the incident
and further, directly due to the negligence or action, or failure thereof, of the accused party.
• The injured will have to prove beyond reasonable doubt that the negligence or failure of action on
the part of the accused party, such as selling second hand tyres as new or failing to repair a faulty
elevator, could have been prevented or foreseen.
• Lastly it must be proved that the compensation is necessary to restore the wellbeing of the injured
to a state he/she would have been in, if it hadn’t been for the accident.
20.2.1 FACTORS THAT MAY INFLUENCE SUCCESSFUL RECOVERY OF DAMAGES

It is of critical importance to identify the correct defendant before issuing and serving of summons.
In cases where the claim relies on a slip-and-fall scenario, it is common for shop or mall owners to
plead that the cleaning services had been contracted out to another company or entity. Similarly in
pothole cases it is often found that the responsibility for the maintenance upkeep and repair of a road
had been contracted out to another company or entity. It would be advisable to cite these entities in
the summons, as the defendant’s defence may attempt to rely on an allegation that the defendant will
escape liability as a result of their contractual relationship with the second entity.
If the negligent company or property owner do not own an insurance policy guarding against
public liability claims, the injured may need to launch a civil suit against them. In the event that a
Judge make an order for the liable party to pay compensation to the injured, it may result in the busi-
ness going bankrupt or the person facing financial difficulties as they might have to sell their assets
in order to meet the monetary value of the claim.
©LSSA 216
Some people may not have assets of value or accessible funds, in which case your claim, although
relevant and substantiated, may be futile.
If the injured party was the creator of his own misfortune, he/ she will not have a claim against the
insured. If it is found that although the injured contributed to his own injuries by acting negligently,
the insured were also at fault, then the Apportionment of Damages Act 34 of 1956 would become
applicable.
20.3 THE COURT’S ATTITUDE TOWARDS PUBLIC LIABILITY

In order to illustrate the Court’s attitude towards Public Liability cases we will discuss the most prom-
inent cases relating to this field of law reiterating the most important principles.
20.3.1 MUNICIPALITY CASES (PAVEMENTS AND POTHOLES)

(a) Municipalities
In the matter of Municipality of Cape Town v Bakkerud (311/97) [2000] ZASCA 174; [2000] 3 All SA
171 (A) (29 May 2000) the facts were as follows:
The Respondent was an elderly lady that lived in Cape Town. She was walking along the pavement
of a street towards her home. There were two holes in the tarred pavement which had been there for at
least six months. They were approximately fifteen centimetres in diameter and about ten centimetres
deep. She stepped into one of the holes, stumbled and fell. She had been aware of the existence of the
holes but “must have been thinking about other things”, when she stepped into them. She sustained
injuries and suffered loss. Within a few days of the incident the appellant (the Municipality of Cape
Town) repaired the holes in the pavement. The relevant applicable legislation empowered, but did not
oblige, appellant to construct and maintain and repair streets and pavement within its area of juris-
diction.
Respondent’s claim for damages was upheld in the magistrate’s court. The magistrate made no
finding on the question of the respondent’s possible contributory negligence, an issue that has been
raised by the appellant. A full court reviewed the applicable law and concluded that the fetters upon
the imposition of liability in delict in cases of omissions were no longer as rigid as had at one time
been supposed. It considered that earlier cases decided in this court which accorded a large measure
of immunity from action to local authorities which were empowered, but not obliged, to build and
maintain streets and pavements, were no longer to be regarded as authoritative in the light of the
subsequent decisions of this court relating to omissions, albeit in admittedly different context.
Writing for the court a quo, Brand J opined that the relative immunity conferred upon local author-
ities in what have come to be known as “the municipal cases” in this court was inconsistent with
the current “legal convictions of the community” which require “municipalities to keep streets and
pavements in a safe condition.” Having characterised failure to do so as wrongful, the learned judge
proceeded to consider whether failure was attended by fault (culpa) and concluded that it was.
He acknowledged that, in considering whether or not fault could be attributed to a municipality,
account would have to be taken of all factors, including financial constraints, which have a bearing
upon the reasonableness or otherwise of the omission.
His conclusion was expressed thus:
“It follows from the aforesaid legal principles that appellant’s failure to repair the holes constitutes
an unlawful act or omission. The only question is therefore whether the appellant was negligent. The
uncontested evidence of respondent was that the holes in question had been there for at least six
months prior to the accident. The fact that the holes were repaired within two days after the accident,
justifies the inference that such repairs did not impose an undue burden on appellant. In the absence
of any explanation why the repairs to the pavement were not effected much earlier, I cannot criticise
the learned magistrate’s finding that the appellant was negligent.”
Turning to the question of contributory negligence the learned judge found respondent to have been
equally to blame and made an apportionment of 50%. Brand J further discussed the wider topic of
liability for omissions generally.
“Society is hesitant to impose liability in law for, as it sometimes put, ‘minding one’s own busi-
ness’. The reticence is reflected in legal and judicial writing by propositions such as no liability in
©LSSA 217
delict for pure (or mere) omissions. The proposition that there is no liability in law for minding one’s
own business is sound only if, in the eyes of the law, the situation which has arisen, is someone else’s
business and not one’s own.
Any attempt to decide whether a particular omission will potentially ground liability by merely
measuring it against the standard of conduct to be expected of a reasonable person will fail for a
number of reasons.
First, the test is sequentially inappropriate. It is of course the classic test for the existence of blame-
worthiness (culpa) in the law of delict. But the existence of culpa only becomes relevant sequentially
after the situation has been identified as one in which the law of delict requires action.
Secondly, the application of the classic test for culpa to the solution of the anterior question is
calculated to produce consequences which are likely to be too burdensome for society to acquiesce in
shouldering them. The hypothetical reasonable person would have to be credited with a reasonable
sense of ethical or moral responsibility and a propensity to act in accordance with it. To use his or her
likely reaction to the situation as the yardstick by which to measure whether or not action is required
by law would be tantamount converting every reasonably perceived ethical or moral obligation to act
into an obligation or duty imposed by law.
The instinctive reluctance of society to sanction the imposition of delictual liability on the strength
of such an equation is precisely because it is apprehensive about the consequences of simplistically
converting moral or ethical obligations into legal duties.”
Courts however must not completely ignore Brand JA’s call in Potgieter v Potgieter 2012 1 SA 637
(SCA) for caution, namely that endorsing the notion that judges may decide cases on the basis of what
they regard as reasonable and fair will give rise to “intolerable legal uncertainty”. For this reason,
inter alia, there is a need to strike a balance between certainty and fairness.
(b) SANRAL and Provincial authorities

It is important to identify the correct defendant or Organ of State that is responsible for the mainte-
nance of the road in question. The South African National Roads Agency (SANRAL) is responsible for
the maintenance of certain roads, so are the various Provincial Authorities. In both cases the notice
that has to be given within 6 months to the Organ of State in terms of s 3(1)(a) of The Institution of
Legal Proceedings against certain Organs of State Act 40 of 2002 is required.
See 2.5.2 below for an explanation of the required notice and prescription.
Moodley and Others v South African National Roads Agency Limited and Others (1509/2010,
1510/2010, 1511/2010) [2015] ZAFSHC 154 (20 August 2015). Condonation for the late service of the
notice in terms of s 3(1)(a) in terms of s 3(1)(a) of The Institution of Legal Proceedings against certain
Organs of State Act 40 of 2002 is granted.
Meyer and Another v Premier of North West Province and Another (729/10, 732/10) [2015] ZANWHC
21 (2 July 2015). It is alleged that the defendants were empowered, entrusted and authorized to exer-
cise control over and maintain the Bethanie road to ensure that no potholes were present on the road
surface and was safe to be used by road users. A motorcyclist and his passenger were severely injured
when he lost control of the motorcycle allegedly after hitting a pothole in the said Bethanie road. The
court held that that there is no prima facie case that reasonably requires an answer on the basis of the
evidence before the court. The witnesses all speculated as to the reason for the collision. Absolution
of the instance is granted.
20.3.2 CASES: SLIP-AND-FALL

Avonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA).Plaintiff was shopping in the super-
market in Durban when she was injured when she fell on a wet floor. The SCA upheld a KZN High
Court (Durban) judgement in favour of plaintiff and held Avonmore Spar liable for her fall. The essence
of the respondent’s evidence was that she and her colleague had been at the supermarket and were
walking together from the butchery section. She was about two metres into the aisle when she slipped
on the floor and fell. She saw a sign indicating that the floor was wet but it was on the far side of
©LSSA 218
the aisle. There was a cleaner in close proximity to that sign. The floor was wet and the respondent
surmised that the floor must have been wet on account of the cleaner in the vicinity.
In her particulars of claim the respondent alleged that the appellant was negligent in that:
• it failed to supervise the cleaning of the supermarket floor adequately;
• it failed to ensure that adequate steps were taken to warn customers, and in particular the
respondent, of the hazard created by the wet floor; and it
• failed to ensure that proper systems were in place when cleaning the floor.
In the alternative, the respondent alleged that the incident occurred as a result of the negligence of
one or more of the employees of the appellant acting in the course and scope of their employment as
such who were negligent in the following respects:
(a) they failed to ensure that the aisle was free of water and/or slippery fluids;
(b) they failed to take adequate steps to dry the floor surface in the aisle;
(c) they allowed water and/or slippery fluids to remain on the floor in the aisle in such a
fashion and at such a place that it constituted a hazard to members of the public and
to the respondent in particular; and (d) they failed to warn members of the public and
particularly the respondent adequately or at all, of the danger created by the wet and
slippery floor.
The appellant in its plea denied any negligence either on its part or on the part of its employees. It
further pleaded that the nature of its business required its floors to be cleaned frequently and it had as
a result employed at arm’s length the services of an independent firm named DBU Cleaning Services
CC (DBU) to clean the store, and DBU in turn employed persons to do the cleaning. The appellant
pleaded that it:
(a) at all material times maintained reasonable systems for the detection, identification and
cleaning of spillages at the store; and
(b) at all material times, implemented and maintained the proper execution of reasonable
and safe systems for the cleaning of floors, including without limitation the erection of
visible warning signage.
Lastly, the appellant pleaded that the independent contractor was liable in the event the cleaners were
found to have been negligent. The Court found that this defence is without merit. No evidence was
adduced at all to prove the contract. It was simply placed before the high court as part of a bundle of
documents.
The Judge of Appeal Mhlantla accepted that there is a need to mop the floors of a store to ensure
that it is clean. However, the manner of execution of that task is crucial. It was held that the appel-
lant’s conduct caused the danger. The routine cleaning operation was done during a busy period. The
cleaner left behind him a damp floor. That should not have happened. The cleaning operation should
have been conducted in such a manner that the cleaner ought to have worked on a small area and
ensured that the area was dry before moving on. It was held further that that would not have placed
an onerous burden on the cleaner or his supervisor. This routine cleaning operation created a poten-
tial hazard to customers and in particular the respondent. The appellant had a duty to regulate its
conduct in order to minimise or eliminate the risk of harm.
The supermarket’s appeal was dismissed with costs and it was ordered to pay damages, which
have to be determined.
Checkers Supermarket v Lindsay (123/2008) [2009] ZASCA 26 (27 March 2009).The claim on the
facts are also based on a slip and fall in a supermarket.
Plaintiff made her way past a fruit gondola and slipped on an oily substance on the floor, lost her
balance and fell injuring herself. After her fall, the appellant was attended to by an employee, who at
the time was a back administrative manager at the supermarket. The employee’s evidence was that
when she arrived at the area where the respondent had fallen she noticed an oil patch around the
respondent covering an area she estimated to be between 45 to 48 cm and that it was still spreading.
Throughout the respondent’s ordeal, including the time she was assisted and taken away, no
cleaner arrived at the scene. The fruit and vegetable section is a known high risk area where spillages
which caused the floor to be slippery, always occurred. It is common cause that the respondent’s fall
©LSSA 219
was the third in approximately a year in that supermarket.
In this case therefore, the negligence lay in an inadequate cleaning system in place that was geared
to discovering and responding with reasonable promptitude to dangerous spillages whenever they
occurred on the supermarket floor. The supermarket is held liable and its appeal is dismissed.
20.3.3 ESKOM
Halstead-Cleak v Eskom Holdings Ltd 2016 (2) SA 141 (GP). Strict liability in terms of s 61 of the
CPA is found to be applicable where a cyclist accidently touched a low-hanging power line spanning
a footpath. It does not matter whether the negligent party is a producer, distributor or retailer. The
defendant is found to be liable in terms of s 61 of the CPA for the plaintiff’s damages.
20.3.4 SCHOOLS
(a) Private school
Pro Tempo Akademie CC v Van der Merwe (20853/2014) [2016] ZASCA 39 (24 March 2016). A learner
at a private school owned and conducted by the appellant catering for learners with learning disa-
bilities becomes impaled on a steel dropper after leaning and sitting on it. The school created the
danger through its prior positive conduct (commission) by placing the dropper in an area where it was
a potential risk of harm to others. A legal duty then arose. By not taking reasonable steps to prevent
the risk from materialising (omission) the legal duty is breached and the negligent omission is then
wrongful. Public and legal policy does not exclude the extension of liability to the appellant and the
appellant is held liable.
(b) Public school

Roux v Member of the Executive Council of the Department of Education, Gauteng and Another
(36348/2010) [2016] ZAGPPHC 603 (17 May 2016). A learner suffers and injury during a school rugby
practice at a public school, the High School Die Wilgers. The learner was tackled during a rugby prac-
tice an educator at the school in the employ of 1st Defendant, alternatively of the 2nd Defendant in
negligent breach of his duty of care towards the minor child to:-
• ensure that the minor child is safe and protected from danger or harm; and /or
• provide a safe environment for the minor child during all educational activities; and /or
• ensure that all rugby training methods applied are safe; and or
• provide the minor child with a physically and emotionally safe environment; and
• refrain from directly or indirectly physically injuring the minor child; and/or
• refrain from applying any physical force on the minor child.
A defence of volenti non fit iniuria failed as it was found that the educator’s tackle was grossly negli-
gent and unreasonable. Reasonableness is determined with reference to the rules and conventions of
the sport concerned, the standard of care and skill that can be expected of a participant in the sport,
and the circumstances of the incident. Injury caused by unreasonable conduct falls outside the ambit
of consent to the risk of injury, because participants are taken to consent only to the normal and
reasonable risks of the sport concerned.
“The injuries happened during or at an educational activity as contemplated in terms of s 60 (1) of the
South African Schools Act 84 of 1996 (“the SASA”) that reads:
“(1) The State is liable for any damage or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public school and for which such
public school would have been liable but for the provisions of this section.
(2) The provisions of the State Liability Act, 1957 (Act No. 20 of 1957), apply to any claim
under subsection (1).”
The MEC is held liable for the damages.
©LSSA 220
20.3.5 EXAMPLE PLEADING: NEGLIGENCE AND DUTY OF CARE IN PARTICULARS OF

CLAIM: SANRAL
[The parties, etc.]
10. The sole cause of the collisions was the negligence of [SANRAL] who:
10.1 failed to ensure that the potholes were properly indicated (sic) to vehicular traffic;
10.2 failed to ensure sufficient and lawful road signage were (sic) installed;
10.3 failed to have due regard to users of the N6 along Smithfield and in particular the
plaintiff;
10.4 failed to take reasonable steps that could and should have avoided the incident;
10.5 failed to adequately and properly design and construct the road;
10.6 failed to provide road users with a functional and safe road and driving environment;
10.7 failed to warn road users of the potential danger that exists at the point of collision
on the N6 Freeway;
10.8 failed to timeously repair the pothole along the N6 Freeway that caused the incident.
Alternatively
10.9 by reason of the facts alleged above, (SANRAL) owed the plaintiff a duty of care to ensure
that:
10.9.1 the road was properly indicated to vehicular traffic;
10.9.2 ensure sufficient and lawful road signs were installed;
10.9.3 reasonable steps be taken to avoid the incident;
10.9.4 the design of the road was adequate and proper;
10.9.5 the road functional and safe to road users; and
10.9.6 potential danger that exists at the point of collision on the N6 Freeway was properly
prepared.”
20.3.6 EXAMPLE PARTICULARS OF CLAIM: NEGLIGENCE AND DUTY OF CARE –

COLLAPSED WALL
ANNEXURE ”A”
1. The Plaintiff is……………………an unemployed major female, having been born on.………………
and who presently resides at ………………………………….Kwazulu-Natal.
2. The Defendant is ……………………………………………….a company duly registered and
incorporated with limited liability according to the company laws of the Republic of South
Africa, and having its registered office within the jurisdiction of this Honourable Court
at…………………………………….KwaZulu- Natal.
3. The Defendant is the owner of certain immovable property more fully described as……………………
and situated at……………………………… (“the property’). A building…………………………………
is located on the property.
4. The periphery of the property in the vicinity of……………………is surrounded by a retaining wall
(‘the wall’) which was built by the Defendant and is under its control
5. During or about………………and at………………………….in the vicinity of ………………………
the Plaintiff was standing on the pavement when the wall situated on the property collapsed onto
her thereby causing injury to her.
6. The injuries sustained by the Plaintiff was due to the negligence of the defendant in one or more
of the following respects:-
6.1. it failed to construct the wall according to an engineer’s specifications;
©LSSA 221
6.2. it failed to prepare and submit plans to the local authority for the construction of the wall;
6.3. it failed to ensure that the wall was constructed with the approval of the local authority;
6.4 it failed to ensure that the construction and materials used therefore were of a standard
acceptable to and approved by the local authority and resident building council;
6.5. it failed to ensure that skilled workmanship and suitable material were utilised in the
construction of the wall;
6.6. it failed to take adequate steps to ensure that the wall was properly maintained;
6.7. it knew or ought reasonably to have known of the danger to the public should the wall
collapse;
6.8. it knew or ought reasonably to have foreseen that the wall would collapse as a result of
non-compliance with sub-paragraphs 6.1 to 6.5 supra; and
6.9. it failed to exercise a degree of care that would be exercised by a reasonable person or entity
so constructing a wall on its property;
7. Further during or about ……………………….the wall was struck by a motor vehicle and substan-
tially damaged thereby causing further strain on its structure.
8. On the wall was examined by a representative of the Defendant and accordingly the Defendant
was aware of the damage caused to the wall and was further negligent in one or more of the
following respects:
8.1. it failed to take immediate steps to cordon off the area in the vicinity of the wall in order to
alert the public of the dangers posed by the damaged wall;
8.2 it failed to take any steps to have the wall repaired;
8.3 it failed to take down the damaged wall.
8.4. the Defendant knew or ought to have known of the imminent danger that the damaged wall
posed to the public, but it failed to take any steps to prevent the wall from collapsing.
9. As a result of the wall collapsing onto the Plaintiff she sustained the following injuries:
9.1. injury to her spine;
9.2. injury to both her lower limbs; and
9.3. paraplegia.
10. As a result of the aforementioned injuries suffered by Plaintiff, she:
10.1. required hospital and medical treatment in respect of which expenses were incurred and for
which Defendant is liable;
Particulars:
(a) She was admitted to………………………………where she spent approximately TWO (2) months.
Plaintiff also received treatment for approximately FOUR (4) months at ……………hospital;
(b) Whilst in hospital the Plaintiff received the usual treatment alternatively necessary hospital
treatment associated with all of her injuries and in particular with all the problems resulting
from her paraplegic condition.
10.2. She would in future require hospital and medical treatment including the cost of various
equipment, aids, accessories and attendants in respect of which expenses would be incurred
and for which Defendant would be liable:
Particulars:
(a) Plaintiff would require the usual alternatively necessary medical and hospital treatment in respect
of her paraplegia;
(b) Plaintiff would require to undergo physiotherapy and occupational therapy;
(c) Plaintiff would require regular assessments to be done by neurosurgeons, urologists, specialist
physicians, psychologists, physiotherapists and occupational therapists; in her daily living plan
and also assist by taking her to the various medical personnel and therapists when needed.
©LSSA 222
(d) Plaintiff would require a permanent full-time assistant to assist her with her day-to-day tasks,
as well as assistance with her daily living plan as well as by taking her to her various medical
personnel and therapists when needed.
(e) Plaintiff would require various aids, accessories and equipment as a result of her injuries;
(f) Plaintiff would require medication and treatment as aforementioned for the rest of her natural
life;
10.3. would require structural changes to the residential dwelling she occupies at………………….
in order to accommodate her disability, In respect of which expenses would be incurred and
for which Defendant would be liable;
Particulars:
(a) The said residential dwelling is at present unsuitable for the Plaintiff, having regard to her phys-
ical condition;
(b) The said residential dwelling has to be altered in order to accommodate entry and exit therefrom
whilst Plaintiff is being conveyed in a wheelchair;
(c) The said residential dwelling has to be altered in order to add one room to accommodate the
attendant;
(b) She suffered continual pain and will continue to suffer such pain for the rest of his life in the area
of her spinal column;
(c) She suffers from depression and will in the future suffer from depression.
10.4. suffered a loss of amenities of life and would continue to suffer a loss of amenities for the
rest of her life;
Particulars:
(a) She cannot engage in all the activities that she previously enjoyed as a healthy and energetic
individual;
(b) Plaintiff would always need someone to look after her;
(c) Plaintiff cannot walk;
(d) She cannot take care of herself;
(e) Plaintiff can no longer enjoy a normal sexual life.
10.5. suffered shock, pain and discomfort, and loss of the amenities of life, past, present and
future:
Particulars:
The detail hereof is as described in the medico-legal reports of Dr X, orthopaedic surgeon, Dr Y, Neuro-
surgeon and Dr Z, Psychiatrist, attached hereto as Annexures “A”, “B” and “C, respectively.
10.6. suffered loss of earnings and will in future suffer a loss of earnings;
Particulars:
(a) Plaintiff was born on…………………………………….;
(b) at the time of the collision Plaintiff was a student studying for a qualification in……………
at………………College.
(c) The Plaintiff would have qualified as a………………………….;
(d) but for the incident Plaintiff would have been employed as a Manager in the…………….Industry;
(e) Such employment would have been for a future period of 35 (thirty five) years and she would
have earned a sum of not less than R4000-00 per month;
(f) no provisions have been made for increases in salary; and
(g) no allowance has been made for contingencies;
11. In the premises, Plaintiff has suffered damages as follows, namely:
11.1 Hospital and medical expenses R1 000-00
11.2 Future hospital and medical expenses including the cost of various equipment,
©LSSA 223
aids and accessories and attendants required by Plaintiff in relation to the injuries
suffered by her. R1 500 000-00
11.3. Structural alterations to Plaintiff s residential dwelling R200 875-00
11.4
permanent disability R300
000-00
11.5 Shock, pain and discomfort, loss of the amenities of life, past,
present and future R400 000-00
11.6 Future loss of earnings R168 000-00
TOTAL R 2 568 875-00
12. Despite demand the Defendant has failed, refused and or neglected to pay the said sum to Plain-
tiff.
WHEREFORE the Plaintiff pays for judgement against the Defendant for.-
(a) Payment in the sum of R2 568 875-00;
(b) Interest on the amount claimed at the rate of 10.25% per annum from the date of demand to date
of payment;
(c) Costs of suit;
(d) Further and alternative relief.
DATED AT DURBAN ON THIS 25TH DAY OF MAY 2016
___________________________
PLAINTIFF’S COUNSEL
20.4 DISCLAIMERS, INDEMNITIES AND EXEMPTION CLAUSES

A very important part of public liability law is the existence of Disclaimers, Indemnities and Exclusion
Clauses. In a lot of Public liability cases, the owners of a property or business, will be advised to make
use of disclaimers and exclusion clauses to limit their liability for damages suffered by members of
the public.
In general, before the enactment of the Constitution and the Consumer Protection Act 68 of 2008
(“CPA”) which became operational on 1 April 2011, exemption clauses were hold to be binding and
enforceable where the clause was clear and unambiguous. The courts gave effect to the exemption
clause even if its consequences were harsh. Exemption clauses were however held to be unenforceable
if the clause was against public policy or if it was unusual in such an agreement.
20.4.1 EXCLUSION CLAUSES: HOSPITALS

For a long period of time the case of Afrox Healthcare BPK v Strydom 2002 (6) SA 21 (SCA) was one
of the leading cases dealing with exclusion clauses in our law. It is however important to note that
this judgement was handed down before the CPA came into law.
The facts of the case were as follows: The hospital’s exemption clause provided that the patient, Mr
Strydom, absolved the hospital and its employees and agents from all liabilities and indemnified them
for any claim instituted by any person for damages or loss of whatsoever nature (including conse-
quential damages or special damages of any nature) following directly or indirectly from any injury
(including terminal illness) contracted by the patient, whatever the cause was with the exclusion of
the intentional omission by the hospital, its employees or agents. The actual clause read as follows:
©LSSA 224
2.1 TERMS AND CONDITIONS OF ADMISSION

I acknowledge and agree that any medical practitioner or any medical professional who treats the patient
is not an employee or agent of the hospital but an independent practitioner and the hospital is not in
any way responsible or liable for any acts or omissions or breach of contract of the medical practitioner.
2.2 I absolve the hospital from all liability for any loss and/or damage of whatever nature arising
in delict or for breach of contract, including but not limited to consequential loss or damage,
arising directly or indirectly out of any act or omission and or breach and or injury (including
fatal injury) sustained by and or harm caused to the patient or any disease (including a terminal
disease) contracted by patient whatever the causes may be excluding only willful default on the
part of the hospital, its employees or agents.
2.3 I hereby indemnify the hospital against any claim, award judgement, cost and expenses which
may be made or awarded suffered by the hospital resulting from or connected with the treatment
of the patient.”
The hospital relied on this clause to avoid liability. The patient raised several arguments why the
exclusion clause could not defeat his claim. Among those arguments were the following:
• The relevant clause is contrary to the public policy;
• The clause is in conflict with the principles of good faith;
• The admissions clerk had a legal duty to draw his attention to the relevant clause which he did
not do;
As far as public policy is concerned, the patient contended that while it is the hospital’s duty to provide
medical treatment in a professional and caring manner, the relevant clause purported to protect the
hospital from even gross negligence on the part of its nursing staff.
Alternatively, the patient argued that even if the clause was not contrary to public policy, it was
unenforceable as it was unreasonable, unfair and in conflict with the principle of good faith;
As the third point he argued that when signing the admission document he was unaware of the
clause. The evidence was that he had signed the document without reading it, although he had an
opportunity to do so. In addition, the patient contended that the admissions clerk had a legal duty to
inform him of the content of the clause and that a he failed to do so. He contended that a legal duty
existed because this was not the type of provision that he expected in an agreement with the hospital.
The Supreme Court of appeal found in favour of the hospital and upheld the exclusion clause. In the
judgement it stated that in standard contracts, these types of exclusion clauses have become the rule
rather than the exemption. The ambit of the clauses involved is mostly required by business consid-
eration and savings on insurance premiums.
Accordingly, the court held that the clause is not contrary to public policy in that there was no
evidence indicating the patient had occupied a weaker bargaining position than the hospital during
the conclusion of the contract, that it was not contrary to principles of good faith and further that
a person who signs a written agreement without reading it does so at their own risk and is subse-
quently bound by the provisions contained therein as if they were aware of them and had expressly
agreed thereto.
Although the patient had argued that the clause, if upheld, would exclude even gross negligence
on the part of the hospital’ staff, the court did not pronounce upon this argument in view of the fact
that the patient’s case was not based on gross negligence on the part of the nursing staff. Accordingly
the court did not pronounce on whether a contractual exclusion of a hospital’s liability for damages
caused by the gross negligence of its nursing staff was in conflict with public interest. Even if that
were the case, it would not mean the automatic invalidity of the relevant clause.
20.4.2 DISCLAIMER NOTICES: AMUSEMENT PARKS

Another case which was prominent in the defence of Exclusion clauses before the CPA and very insightful
about the situation regarding Amusement Parks, is the case of Durban’s Water Wonderland (Pty) Ltd
v Botha & Another [1999] 1 All SA 411 (A). This is a so-called “ticket case” based on the contractual
construction of quasi-mutual assent. A mother and her 2½ year old daughter, Mariska, were injured
when they were flung from one of the amusement amenities at the amusement park owned by Durban’s
Water Wonderland (Pty) Ltd. The case dealt with the question of whether a disclaimer contained in a
©LSSA 225
notice painted on the windows of the ticket offices in the amusement park had been incorporated into
the contract governing the use of the park’s amenities, whether on a proper construction of the notice,
the amusement park was exempted from liability for negligence, and whether the amusement ameni-
ties at the amusement park. It was discovered that the cause of the damage had been a failure in the
hydraulic system governing the vertical movement of the car in which they had been seated.
The notice in English read as follows:
“The amenities which we provide at our amusement park have been designed and constructed to the
best of our ability for your enjoyment and safety. Nevertheless we regret that the management, its
servants and agents, must stipulate that they are absolutely unable to accept liability or responsi-
bility for injury or damage of any nature whatsoever whether arising from negligence or any other
cause howsoever which is suffered by any person who enters the premises and/or uses the amenities
provided.”
The Supreme Court of Appeal held that if the language of a disclaimer or exemption clause was such
that it exempted the author from liability in express and unambiguous terms, effect must be given
to that meaning. If there is ambiguity, the language must be construed against the author. In that
particular case the court found that it was clear from the language used in the disclaimer that any
liability founded upon negligence in the design or construction of the amusement amenities would
fall squarely within its ambit.
Whether the disclaimer formed part of the contract governing the use of the park’s amenities was
considered with reference to where it was displayed. The court noted that the disclaimer notice had
been properly displayed. The court noted that the disclaimer notice had been properly displayed at
a place where one would ordinarily expect to find a notice containing terms governing the contract
entered into by the purchaser of the a ticket, namely at the ticket office.
The court found that it was unlikely that any reasonable person approaching the office in order to
obtain a ticket would have failed to observe the notices on the cashier’s window. The court was satis-
fied that the steps taken by the amusement park to bring the disclaimer to the attention of the patrons
was reasonable and that accordingly the contract concluded by Mrs. Botha was subject to its terms.
The question of negligence was not decided in view of the fact the disclaimer notice was enforced.
20.4.3 DISCLAIMER NOTICES: SHOPPING MALLS

Niemand v Old Mutual Investment Group Property Investment (Pty) Ltd 2012 JDR 0898 (GNP).
The plaintiff claims damages from the defendant, the owner of a shopping mall in Pretoria, commonly
known as Menlyn Park Shopping Centre, as a result of injuries sustained by the plaintiff when she
slipped and fell on a slippery substance on the floor of a loading bay on the premises. This trial, as
agreed upon between the parties, concerns the issue of liability of the defendant.
The plaintiff’s case is based on delictual liability of the defendant. It is alleged by the plaintiff that
the defendant was negligent in failing to keep the relevant area properly clean, causing her to slip on a
spilled substance and fall, which resulted in the plaintiff sustaining certain injuries. The defendant’s
opposition to the claim is twofold. Firstly it denies liability in that it was not negligent as alleged by
the plaintiff, and secondly, that it did not act wrongfully on the basis that notices of disclaimer of
liability were displayed at all the public entrances and parking bays on the premises.
The plaintiff conceded that she had previously entered the mall at one of the main public entrances.
She however stated that she had never been aware of any disclaimer notice or that she had read the
contents thereof. She could however not dispute that the disclaimer notices had been affixed at the
entrances and the parking garages at the time she visited the mall as an ordinary shopper. The plain-
tiff testified that she entered the mall at the loading zone, daily, for a time period of two months prior
to the incident.
The Court found that the Disclaimer notice was not properly displayed.
By not having displayed any disclaimer notice at the entrance to the loading zone, or the rear wall,
for that matter, at the time in question, creates the impression that the defendant did not consider the
loading zone a potential danger area on the same basis as the inside of the mall.
This inference is also borne out by the evidence that the loading zone, albeit for practical purposes,
was not attended to, or monitored, on the same basis as the inside of the mall to which the general
public had access. The subsequent affixing of the disclaimer notice to the rear wall of the loading
©LSSA 226
zone further creates the impression that the defendant, belatedly, realized that the displaying of the
disclaimer notices at the public entrances was inadequate.
As such the defendant is held liable for such damages as may be proved.
20.4.4 EXCLUSION OF LIABILITY IN A LEASE AGREEMENT (CONTRACT)

Swinburne v Newbee Investments (Pty) Ltd 2010 (5) SA (KZD). The plaintiff was a tenant in the
defendant’s building in terms of a lease agreement and suffered injuries when he slipped and fell off
a flight of stairs leading up to his flat.
The landlord denied negligence and in doing so relied in two clauses in the lease agreement which
purportedly excluded liability for any damages arises from its alleged negligence. The court held that:
• The landlord owed the tenant a legal duty to ensure that the stairs were safe to be used;
• A reasonable person in the position of the landlord would have foreseen the possibility of someone
slipping on the stairs. The provision of a handrail was the obvious step in guarding against such
harm and in failing to do so the landlord was negligent;
• The first of the two clauses relied upon by the landlord only excluded its liability for negligence,
obligations for repair and maintenance and did not extend to the provision of basic safety features
such as handrails for the stairs;
• The second disclaimer clause relied upon was to be interpreted against the background of the
general context of where it appeared in the lease. The clause was ambiguous and terms of its
context there was no indication that it was directed at accidents causing personal injury or ques-
tions of possible negligence.
20.5 CURRENT SITUATION WITH REGARDS TO DISCLAIMERS AND EXCLUSION

CLAUSES
In the past few years the effectiveness of indemnity clauses and disclaimers has been diluted consid-
erably by the stance adopted by our judiciary and the CPA. It is important to note that the law of
contract does not exist in isolation from the rest of our legal system which is ultimately governed by
the principles enshrined in our Constitution.
In the case of SA Forestry Co Ltd v York Timbers 2005 3 SA 323 (SCA) Brand JA already started
to move towards an interpretation where fairness and reasonableness were taking into account when
deciding on the facts. Brand JA held: “In the interpretation process, the notions of fairness and good
faith that underlie the law of contract again have a role to play. While a court is not entitled to super-
impose on the clearly expressed intention of the parties its notion of fairness, the position is different
when a contract is ambiguous. In such a case, the principle that all contracts are governed by good
faith is applied and the intention of the parties is determined on the basis that they negotiated with
one another in good faith.”
20.5.1 MOVING TOWARDS FAIRNESS AND REASONABLENESS IN CONTRACT IN THE

APPLICATION OF DISCLAIMER NOTICES AND EXEMPTION CLAUSES
The Judgement in the Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) case was the turning point of
the application of exemption clauses making a leap towards the realisation of fairness and reasona-
bleness in contracts.
In this case, the court refused to uphold the exemption clauses based on the fact that it would have
been unfair and unjust to the plaintiff who sustained serious bodily injuries during his stay at the
hotel. The plaintiff wanted to exit the hotel but found that the gate was closed. He waited inside of
his bus for a security guard to open the gate. When the gate still did not open, Naidoo walked towards
the gate and saw that it had jammed and the wheels had come off the rails. The gate fell on Naidoo
as he was approaching the entrance causing serious bodily injuries. The Plaintiff sued the defendant
on the basis that the defendant had been negligent in failing to take adequate steps to prevent the
indecent from occurring.
The defendant relied on the disclaimers present at the entrance to the hotel and the indemnity
clauses contained on the hotel register which had been signed by the plaintiff and in turn, indemni-
©LSSA 227
fied the hotel from any liability caused to the plaintiff. In the course of the trial, the court held that it
was common cause that the hotel owed the guest a duty of care and that the hotel employees failed
to take reasonable steps to avert the accident. Thus, the plaintiff had discharged the onus of proving
negligence on the part of the defendant.
With regards to the defendant’s reliance on the disclaimer notice, the court indicated that it was
doubtful that the disclaimer notice was present at the time of the incident and, even if it had been,
it is common cause that the plaintiff did not see the disclaimer notice due to poor lighting where the
disclaimer was said to be present.
The only other defence for the defendant was to raise that the hotel registration form contained an
indemnity clause absolving the hotel from any negligence and from any damages caused or resulting
on the hotel premises. The plaintiff was provided with a registration card which contained several
clauses one of which was an indemnity clause which read: “…. Whether arising from fire, theft or any
cause, and by whomsoever caused or arising from the negligence (gross or otherwise) or wrongful
acts of any person in the employment of the hotel.”
The Plaintiff admitted to having read the clause on the hotel register which he signed as well as
having read the disclaimer that was posted at the entrance to the hotel. The court still found that he
was entitled to damages from the hotel as any attempt on the part of the hotel to exclude liability in
general would be the equivalent of denying the claimant’s judicial regress.
Deacon v Planet Fitness Holdings (Pty) Ltd (8197/2012) [2014] ZAGPPHC 721; 2016 (2) SA 236 (GP)
(6 October 2014). Plaintiff tripped and fell at an “Altech drop-arm barrier” in the gym. She alleges that
the defendant should have warned her about the inherent dangers of the machine and should have
put up notices to warn her and others. Held: it is a simple machine with no inherent dangers. There
was no legal duty on the defendant to warn her or to put up notices. As such no wrongfulness can be
imputed to defendant. The Gym contract also contained a lenghty exclusion of liability clause, but the
court did not have to pronounce on this.
In Barkhuizen v Napier 2007 (5) SA 323 (CC) the Constitutional Court highlighted that the consid-
erations of public liability policy have to be taken into account when dealing with the admissibility
of the clauses of this nature. This case dealt with limiting prescription in relation to a contract of
insurance. Common to most insurance contracts, it dealt with a clause which released the insurance
company from liability unless summons was served within 90 days of the company repudiating the
claim. The insured challenged this clause as being unconstitutional on the grounds that it infringed
his right of access to courts. The Constitutional Court ruled that freedom of contract should be given
less weight if the contentious contractual term (the one that limits the right) is so unreasonable as to
offend public policy.
Essentially, the courts have indicated that where an indemnity clause relates to the relationship
between corporate individuals premised in contract and where these individuals are on equal footing
with regards to bargaining power and the dispute relates to one of theft or damages to property, it is
likely that clauses of this nature would be upheld. On the other hand, where we are dealing with an
individual or consumer on the one hand and a corporate entity on the other and the dispute relates to
bodily harm, it is highly unlikely that a clause of this nature would be upheld.
20.5.2 THE IMPACT OF THE CONSUMER PROTECTION ACT 68 OF 2008

In terms of the CPA which became operational on 1 April 2011, there are various sections which
would now be applicable and would most probably have the effect of reaching different conclusions on
matters that was adjudicated upon before the enactment of the CPA.
• Section 49 provides that the consumer’s attention must be drawn to clauses that limit the risk or
that indemnify the supplier. The clause must be drawn to the consumer’s attention in a “conspic-
uous manner and form that is like to attract attention of an ordinarily alert consumer, having
regard to the circumstances. The indemnity clause has to be specifically brought to the attention
of that individual who seeks damages. More importantly, for any indemnity clause to be valid, it
cannot require a consumer to waive any right or liability on terms which are unfair, unreasonable
or unjust.
• Section 48(2) provides that unfair, unreasonable or unjust terms include those which are so adverse
to the consumer as to be inequitable or where the term is excessively one-sided in favour of any
©LSSA 228
person other than the consumer. In the Naidoo case, Naidoo had not necessarily involved himself
in risky activities and therefor the exemption clause would have been inequitable.
In the case of Duffield v Lillyfontein School and Others (3327/2006) [2011] ZAECGHC 3 (27 January
2011) the plaintiff participated in a corporate adventure race and fell from a zip-wire and sustained
injuries. The plaintiff signed an indemnity form. It was held that the indemnity provided by the plain-
tiff was conditional upon its being established that the defendants had done all things reasonably
necessary to ensure the safety of the participants. The Court found that the defendants had failed to
do so.
Even in the event that the consumer’s attention is drawn to an unfair term in the contract, the court
may still refuse to enforce it on the basis that it is unfair in terms of Section 48(2)(b) and 52(3) of the
CPA.
• Section 48(1)(c) further reinforces the fact that any agreement is prohibited if it requires a consumer
to waive any rights, assume any obligations or waive any liability of the supplier on terms that
are unfair, unreasonable or unjust. Exemption clauses by their very nature constitute a waiver of
rights on the part of the consumer. The exclusion of liability on the part of the supplier tends to
be unfair or unreasonable as regards the consumer. It is highly likely that reliance on section 48
could have enhanced the Judge’s decision in the Naidoo-case.
• Section 49(5) provides that the consumer must be given an adequate opportunity to receive and
comprehend the provision or notice” to enable such a consumer to make an informed decision. As
soon as a consumer sign or initial the contract the CPA doesn’t afford much protection if the service
provider adhered to the CPA’s conditions. See: Naudé “Unfair contract terms legislation: the Impli-
cations of why we need it for its formulation and application” 17:2006 Stell LR at 378 and Naudé
“The consumer’s right to fair, reasonable and just terms under the new Consumer Protection Act in
comparative perspective” 126:2009 SALJ at 510.
• Section 58 requires that the supplier of certain intrinsically risky facilities or activities should alert
the consumer to the fact, nature and potential effect of the risk in a manner that meets the stand-
ards in section 49, the supplier should ensure that the consumer has an adequate understanding
an appreciation of the risk rather than a superficial awareness of the risk. (See Van Eeden “A Guide
to the Consumer Protection Act” 178).
• Section 51 of the CPA also prohibits terms that directly or indirectly waive or deprive a consumer
of a right provided in terms of the Act. The prohibition includes some exemption clauses as they
deprive consumers of the right to sue the other party of damages. Courts are given the power to
declare agreements unconscionable or unfair in whole or in part in terms of section 52. Accord-
ingly a court can strike down an exemption clause on the basis of unfairness.
• Section 44(3) (a) of the CPA “greylists” clauses excluding liability for bodily injury or death caused
by negligence. It provides that a term of a consumer agreement is “presumed” to be unfair if it has
the purpose or effect of “excluding or limiting the liability of the supplier for death or personal
injury caused to the consumer through an act or omission of that supplier….” The words “greylis-
ting” and “presumed” is indicative that the unfairness may be rebutted and in the words of Naudè
in 2009 SALJ 511, such a clause “must at the very least be included in an indicative list of clauses
which may be regarded as unfair, whereas the supplier may still persuade a court otherwise.” The
circumstances of every case will still be analysed to see whether a clause excluding liability of the
supplier for death or personal injury caused to the consumer is unfair or not.
Although the CPA does not ban exemption clauses it gives an indication of the requirements that have
to be met before an exemption clause will be upheld in a court of law.
It is argued by some that section 51(1)(c) of the CPA should be amended to include a ban on exemp-
tion clauses that exclude liability for death or personal injury as this is regarded contrary to public
policy. (See: Brand and Brodie “Good Faith in Contract Law” 115).
It is clear that the public liability field of law is a very relevant field of law and that a lot of changes are
effected in this area of the law at the moment. The principles followed by the court in the Afrox Healthcare
Bpk v Strydom (above) regarding extension clauses is no longer untenable and there was a need to develop
the law of contract to ensure that the principles of Section 39(2) of the Constitution are upheld. Section
39(2) provides that when interpreting legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
©LSSA 229
The Naidoo-judgement has come a long way in establishing a precedent whereby fairness and
reasonableness takes in their rightful place in the law of contracts. The ultimate goal would be to
strike a balance between the interest of legal continuity and social realities. Brisley v Drotsky [2002]
ZASCA 35; 2002 4 SA 1 (SCA). Should this have the effect of resulting in legal and commercial uncer-
tainty, this would be a small price to pay for a legal system that holds the values of our Constitution
in high regard protecting vulnerable people of South Africa and taking into account the high levels of
illiteracy and poverty.
E. PRACTICE NOTES: PASSENGER RAIL

ASSOCIATION OF SOUTH AFRICA
(“PRASA”)
21. PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA)
21.1 INTRODUCTION
The rail services industry is largely dominated and run by parastatal agencies, which in turn have
certain obligations to members of the public who use the trains daily. Metrorail bears an obligation
to ensure that reasonable measures are taken to provide for the safety and security of rail commuters
on the rail commuter service they provide.
Claims against PRASA are unique in the aspect relating to negligence.
A claim against PRASA is when the rail commuter, claimant, victim, whomever you want to call him,
was injured because of the negligence of an employee, either by acting negligently and or failing
(omitting) to prevent injury by not taking the necessary steps and/or reasonable steps or measures,
causing the conduct of PRASA to the wrongful.
PRASA, as the implementing arm of the National Department of Transport, the sole shareholder, is
primarily focused on the mandate contained in the Legal Succession Act of South African Transport
Services Act of 1989, as amended.1
21.1.1 THE MAIN OBJECTIVES OF PRASA ARE TO:

• Ensure that, at the request of the Department of Transport, for rail commuter services are provided
within, to and from the Republic of South Africa in the public interest, and
• Provide, in accordance with the Department of Transport, for long haul passenger rail and bus
services within, to and from the Republic of South Africa in terms of the principles set out in
Section 4 of the National Land Transport Transition Act 22 of 2000.
21.1.2 DUTIES OF PRASA TO THEIR COMMUTER AND OR MEMBERS OF THE PUBLIC

• Implement and comply with statutory and regulatory safety measures in terms of PRASA regula-
tions;
• Take reasonable steps and implement reasonable policies, procedures, rules and operating instruc-
tions to be employed by PRASA, its servants, agents, employees or other persons under its control;
• Take reasonable steps to ensure that all passengers making use of the rail service suffer no harm
whilst making use of the rail service when boarding and/or disembarking trains.
©LSSA 230
Rail Commuters Action Group v Transnet t/a Metrorail 2005 (1) SA 301 CC. The court found that
Transnet has an obligation to ensure that reasonable measures are taken to provide for the security
of rail commuters while they are making use of rail transport services.
21.2 PRESCRIPTION
A claim will prescribe within 3 years from the date of the incident calculated inclusive of the 1st day
and excluded the last day. These claims fall into the category of the public liability.
Prescription is only stopped by the issuing of a summons at court and service by the sheriff upon
the principle place of business of PRASA at Umjantshi House, 30 Wolmarans Street, Braamfontein,
Johannesburg, alternatively, where the whole cause of action arose.
21.3 CLAIMS AGAINST PRASA

A claim against PRASA arises when a rail commuter is injured due to the negligence of an employee,
acting within the course and scope of his/their employment, fails to prevent injury or harm by not
taking the necessary steps and/or measures to prevent such harm causing the conduct the be wrongful.
Negligence can also be proved by the actions or omissions of an employee and also by way of
breaching a public duty of care imposed by a Law on PRASA.
In all these delictual claims you will have to work with the reasonable man test, and in this case
the reasonable, train operator, the reasonable security guard and the reasonable train driver.
21.3.1 OPEN DOORS WHILE THE TRAIN IS IN MOTION

Where any person suffers damage which is caused partly by his own fault and partly by the fault of
any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the
claimant but the damages recoverable in respect of shall be reduced by the Court to such extent as
the Court deem just and equitable having regard to the degree in which the claimant was at fault in
relation to the damages, having regard to the Apportionment of Damages Act.
Where any person suffers damages which is caused partly by his own fault and partly by the fault
of any other person, a claim in respect of that damages shall not be defeated by reason of the fault
of the claimant but the damages recoverable in respect of shall be reduced by what the court deem
just and equitable having regard to the degree in which the claimant was at fault in relation to the
damage.
It has become well established that a train departing from a station with open coach doors is an
invitation to commuters to board the train and an apportionment on the merits would apply.
Mashongwa v PRASA 2016 (2) BCLR 204 (CC). This case was discussed in the article by Leslie Kobrin
“Transport utility’s duty to prevent harm to passenger” De Rebus May.
The court a quo held that PRASA had been negligent because it did not ensure that the doors of the
train were closed when the train left Walker Street Station. It also ought to have ensured that at least
one armed guard was deployed on each train in order to deter prospective criminals. The court also
held that although crime can never be completely prevented PRASA had a duty to secure its passen-
gers’ safety. As a result PRASA was held to be liable in an amount equivalent to 100% of Mashongwa’s
agreed or proven damages.
PRASA lodged an appeal. The Supreme Court of Appeal held that both grounds of negligence alleged,
could be held to have been the cause of Mashongwa’s injuries and invoked the “but for” test set out
in International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A). The court held that leaving the
doors of the coach open while the train was in motion did not dispose of the issue of causation as the
assailants could have easily forced the doors open in order to throw Mashongwa out of the moving
train. If at least one security guard had been deployed on Mashongwa’s coach the attack could have
been avoided but expressed doubts as to whether it would have made any difference. PRASA’s appeal
was upheld.
Mashongwa then appealed to the Constitutional Court. The court concluded that the issues in this
case raise a constitutional issue and an arguable point of law of general public importance relating
©LSSA 231
to PRASA’s legal obligations to protect its rail commuters from harm and, as such granted leave to
appeal.
This case concerned centred around physical harm suffered by passengers when attacked on a
train and later thrown off a moving train, whether the measures employed by PRASA to control the
safety of passengers sufficed and whether in this matter PRASA’s conduct was wrongful.
WRONGFULNESS
In casu the court was required to consider whether a reasonable train operator would have foreseen
the risk of harm befalling its passengers arising from such conduct and whether it ought to have
taken steps to guard against such harm occurring in answering the inquiry into negligence.
Mogoeng CJ concluded that PRASA is under a public law duty to protect its commuters and this
duty, together with constitutional values, have altered the situation of a private law duty to prevent
harm to commuters. As a result the court became obliged to consider whether Mashongwa had proved
negligence on the part of PRASA.
NEGLIGENCE
At paragraph 52 the court stated: “It must be emphasised that harm was reasonable foreseeable and
PRASA had an actionable legal duty to keep the doors closed while the train was in motion”.
In the circumstances the court held that PRASA was negligent in not ensuring the doors to the
coach were closed while the train was in motion.
CAUSATION
It held that, had the doors to the carriage been closed, it would have been unlikely that the assailants
would have been able to throw Mashongwa out of the doors of the moving train, and at paragraph 69
the court further held:
“That the incident happened inside PRASA’s moving train whose doors were left open reinforces the legal
connection between PRASA’s failure to take preventative measures and the amputation of Mr Mashong-
wa’s leg. PRASA’s failure to keep the doors closed while the train was in motion is the kind of conduct
that ought to attract liability. This is so not only because of the constitutional rights at stake but also
because PRASA has imposed the duty to secure commuters on itself through its operating procedures.
More importantly, that preventative step could have been carried out at no extra cost. It is inexcusable
that its passenger had to lose his leg owing to its failure to do the ordinary. This dereliction of duty
certainly arouses the moral indignation of society. And this negligent conduct is closely connected to the
harm suffered by Mr Mashongwa. It is thus reasonable, fair and just that liability be imputed to PRASA.”
Accordingly, PRASA was held liable to pay to Mashongwa an amount equivalent to 100% of his
agreed or proven damages.
FURTHER CASE LAW

Mokwena v South African Rail Commuter Corporation Ltd & Another (14465/2010) (2012) ZAGPJHC
133. The court found PRASA liable for damages because the train had departed with the doors still open.
Seti v SARCC Ltd (10026) (2009) ZAWCHC 109. The court found that even where someone jumps onto
a moving train, the SARCC Ltd was still liable for damages because the train should not leave the
station with the doors open.
Makgopa v Passenger Rail of South Africa (9830/2015) [2016] ZAGPPHC 506 (3 June 2016). Plaintiff
was pushed from a moving train by another commuter. It was held that:
• the defendant had a duty of care towards the plaintiff and the persons who utilized its trains to
ensure their safety;
• the Defendant breached its duty of care towards the plaintiff in that:
* the Defendant failed to ensure the safety of members of the public, especially the Plaintiff;
* the Defendant failed to take any reasonable or adequate steps to avoid injury to the Plaintiff
under the circumstances; and
* the Defendant failed to employ employees, alternatively, failed to employ an adequate number
of employees to guarantee the safety of passengers in general and that of the Plaintiff.
©LSSA 232
As a result of the foregoing, the plaintiff sustained traumatic brain injuries as well as the amputation
of his leg. It was found that defendant owes plaintiff a duty of care to see that doors are closed.
21.3.2 OVERCROWDING OF PASSENGERS ON THE TRAIN

SARCC Ltd v Thwala (661/2010) (2011) ZASCA 170. Chauke was injured on 29 December 2012. The
train was so full there were no seats and she was standing an arm’s length from the open door. She
testified that the crowd was so tightly packed “you could not even see the shoes you were wearing.”
Just before the train reached the station platform, the doors opened and people started pushing and
she fell from the open doors. Judgement: Absolution from the instance granted.
21.3.3 GAP BETWEEN THE PLATFORM AND THE TRAIN

MS Nhlapo v Transnet Ltd t/a Metrorail Unreported Case no: 2007/26031 TPD.
Bhika AJ held: “It is conceded that the plaintiff bears the onus to prove, on a balance of probabili-
ties, the culpability of the defendant. The legal test is set out in Ngubane v South African Transport
Services 1991 (1) SA 756 (A) at 776 E-F, where Kumleben JA held:
‘liability in delict based on negligence is proved if:
(a) A diligence paterfamilias in the position of the defendant-
(i) Would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) Would take reasonable steps to guard against such occurance;
(b) The defendant failed take such steps’
This has been proved in my opinion”
“As regards the requirements, it is acknowledged that reasonable steps are not necessarily those
which would ensure that foreseeable harm of any kind does not in any circumstances eventuate. The
contributor (Prof J C van der Walt) in Joubert (ed) The Law of South Africa vol 8 sv “Delict” para 43 at
78 comments in this regard that: ‘Once it is established that a reasonable man would have foreseen
the possibility of harm the question arises whether he would have taken the measures to prevent the
occurrence of the foreseeable harm. The answer depends on the circumstances of the case. There are
four basic considerations in each case which influence the reaction of the reasonable man in a situ-
ation posing a foreseeable risk of harm to others: (a) the degree or extent of the risk created by the
actor’s conduct; (b) the gravity of the possible consequences if the risk of harm materializes; (c) the
utility of the actor’s conduct; and (d) the burden of eliminating the risk of harm’”.
ML Shongwe vs SARCC (41334/2007) [2009] ZAGPHC 45. Plaintiff ran towards open door of the
moving train. He then slipped and fell under the train and sustained an amputation of his left leg. The
defence of volenti non fit iniuria was upheld and the claim dismissed with costs.
21.4 DEFENCES TO BE RAISED BY PRASA
21.4.1 VOLENTI NON FIT INURIA (CONSENT AND ASSUMPTION OF RISK)
See Boberg “The Law of Defamation” Volume 1, Juta 1984 at 724 and LAWSA Vol 8, Part 1, Lexis
Nexis Butterworths 2005, Paragraph 96. A willing person who consents to PRASA’s conduct, in the
form of either a specific harmful act or an activity involving a risk or harm, or an activity involving a
risk or harm cannot be wronged. The question of volenti non fit iniuria is whether the form of consent
or voluntary assumption of risk, is a complete ground of justification, or a defence.
©LSSA 233
21.4.2 REQUIREMENTS
The requirements for establishing consent or voluntary assumption of risk as a ground for justifica-
tion are the following:
Informed consent
Assumption of risk has a three-pronged test to be applied to find out if the risk had really been
accepted. This was set out in Waring v Gillow and Sherborne 1904 TS 340 344. “Knowledge, appre-
ciation and consent: these are the essential elements; but knowledge does not invariably imply appre-
ciation, and both together are not necessarily equivalent to consent.”
The person giving the consent must be a major person of full legal capacity.
Euleine de Kock v Witbank Skydiving Club and Others (66755/2009) NGHC (2012-05-15) Unreported.
Indemnification and consent form is invalid as it was signed by a minor of 17years and 10 months
old without the assistance of her parent and natural guardian. She deliberately misrepresented to the
Skydiving Club that a person who was not her parent and natural guardian signed the form with her.
The court finds that she did not could not give such indemnification and consent unassisted, and that
young people must be protected in terms of the Children’s Act. Even though she misrepresented to
the Club that a guardian co-signed, knowing that he was not her guardian, she cannot therefore be
estopped from relying on her age and this principle in order to overcome the defence of volenti non fit
iniuria and consent. The club is declared liable for her injuries.
In Seti v SARCC Ltd (above) the rule relating to consent were explained as follows:
1. The plaintiff must have had knowledge of the harm or risk involved in the defendant’s conduct,
as well as the nature and full extent thereof. This is also referred to as “informed consent”.
2. Knowledge of the harm or risk involved is not sufficient. The Plaintiff must also have appreci-
ated the nature and extent of the harm and the risk involved.
3. Knowledge and appreciation will not suffice. The maxim is not scienti non fit iniuria but volenti
not fit inuria. The plaintiff must also have consented to the infliction of the harm or assumed
the risk implicit in the defendant’s conduct. Consent and assumption of risk imply that the
plaintiff intended his or her rights to be limited, for the purpose of infliction of the specific harm
or exposure to the hazardous conduct of the defendant. The plaintiff must therefore not only
have consented to or assumed the physical harm and risk involved, but also the legal risk of
injury.
4. The defendant’s conduct must have fallen within the limits of the consent. Should the conduct
violate the terms of the consent, the defence falls away.
5. The consent must extend to all the consequences which may arise out of the conduct. However,
it is possible to give conditional consent, for example, that a manuscript be shown to someone
for approval prior to publication.
6. The consent must have been freely given and the risk voluntarily assumed. Whether consent
has been freely given, and a risk voluntarily assumed, depends entirely on the particular
circumstances of the case and, in particular, on the moral, economic pressures restricting the
plaintiff’s freedom of choice.
7. Consent or voluntary assumption or risk is, of course, a defence only in respect of injuries and
harm caused by the materialisation of a risk which was subjectively foreseen, appreciated and
assumed by the plaintiff. If one exposes oneself to dangerous or negligent conduct, one does
not necessarily assume all the risks attached to it. In Vorster v SANTAM Insurance Co Ltd 1973
(4) SA 764 Marais J observed: “The volens may relate to specific, separable parts of the risk or
danger and not to others.” He continued: “If it were proved that the plaintiff was fully volens in
respect of one of these factors of danger but the cause of the injury arose from an element not
covered by the volens, the defence or volenti non fit iniuria would not succeed, in other words
the required legal consent must have been directed to that particular danger factor which in the
even caused the damage; if not, the volens defence fails.”
8. The requirements for the defence of volenti non fit iniuria are not restricted to the subjective
requisites of knowledge, appreciation and consent or assumption of risk. One’s freedom of will
and capacity to regulate unilaterally the extent of one’s rights are not absolute.
©LSSA 234
9. Consent or assumption of risk is a unilateral legal act whereby a plaintiff waives or restricts
his or her rights in respect of certain harmful conduct by the defendant. In order to constitute
a legal act, the will and intention of the consenting party must be manifested by external
conduct.
10. Consent or assumption of a risk is a legal act. The execution of a legal act requires in principle
that the actor must have the legal capacity to perform a juristic act.
11. Because consent is a unilateral act, one may revoke it at any reasonable time. This means
knowledge alone is not sufficient, the person must also appreciate the nature and extent of the
harm and risk involved and must also have consented to the infliction of the harm or assumed
the risk implicit in PRASA’s conduct. Not only must the physical harm and risk involved be
consented to or voluntarily assumed, but the consent must also be to the legal risk of injury.
12. The conduct of PRASA must fall within the limits of the consent, i.e. it must be freely given.
21.4.3 DISCLAIMER NOTICES

(a) The disclaimer defence only operates in circumstances where the defendant has done
everything right.
In Seti v SARCC Ltd (above) the disclaimer notice was positioned next to the entrance to the platform,
where the Plaintiff would have passed every time he used a train at Khayelitsha station. The notices
would have been visible to the Plaintiff. At the time of the incident a similar disclaimer board was also
positioned next to the ticket offices at Khayelitsha station.
The Plaintiff, although Xhosa-speaking, would have been able to read and understand the disclaimer
notices aforesaid. The language use on the disclaimer board is clear, straightforward and unambig-
uous: Just above the actual disclaimer, it reads “Stay clear of all doors whilst the train is in motion”.
The actual disclaimer can also not be more concise and easy to understand, reading “Metrorail will
not be held responsible for injuries sustained”.
The Plaintiff testified that he did not read nor see the disclaimer boards. The language used on the
board is clear and unambiguous.
(b) The disclaimer does not refer to circumstances where defendant did not take reasonable
steps to safeguard
Equally the disclaimer board in my view is not referring to circumstances where the defendant (in this
case) did not take reasonable measures to safe guard its commuters that is, ensuring that the doors
of the train are closed before it departs the station.
The disclaimer defence comes only into operation in circumstances where the defendant has done
everything right. In this matter it is common cause that the train left the station with its doors open.
Therefore, the defendant as failed to take reasonable steps to ensure that the doors of the train were
closed, and therefore the defendant’s defence fails the test as the defendant was also at fault.
See is this regard Chapter D 20. Public Liability.
21.5 EXAMPLE: PARTICULARS OF CLAIM AGAINST PRASA

ANNEXURE A
1. The Plaintiff is _______________________, an adult male who was born on ________________.

Plaintiff resides at _______________________.
2. The Defendant is the PASSENGER RAIL AGENCY OF SOUTH AFRICA, a company duly incorporated
in terms of the laws of the Republic of South Africa with its registered offices and/or principal
place of business situated within the jurisdiction of the above Honourable Court at Umjantshi
House, 30 Wolmarans Street, Braamfontein, Johannesburg.
3. At all relevant times hereto and particularly on 20 December 2008 the Defendant:
©LSSA 235
3.1 was the lawful owner of certain rail commuter assets as envisaged in section 25 of the
Legal Succession to the South African Transport Services Act No 9 of 1989 (“the Act”) and
in particular was the lawful owner of a commuter train operating between Jeppe Station and
Germiston Station;
3.2 carried on business as a rail commuter operator under the name and style of “Metrorail”;
3.3 operated and continued to operate rail commuter services, as more fully set out herein
below, in terms of the Act;
3.4 conducted its affairs through the action and/or the omission of its employees in the course
and scope of their employment with the Defendant;
3.5 operated and provided rail commuter services to members of the public between Jeppe Station
and Germiston Station using trains consisting of locomotives and commuter coaches;
3.6 in so operating and providing the rail commuter services aforesaid, controlled and adminis-
tered all passage and/or commuting by members of the public in respect of the said trains;
3.7 contemplated and intended that such rail commuter services aforesaid would be used by
members of the public, including the Plaintiff, to travel along routes designated by it and
more particularly between Jeppe Station and Germiston Station;
3.8 in providing and operating the rail commuter services aforesaid had a legal duty, alterna-
tively a duty of care to ensure the safety of the public, including the Plaintiff, making use of
such services as passengers or otherwise by, inter alia:
3.8.1 implementing and complying with statutory and regulatory safety measures;
3.8.2 taking such reasonable steps and implementing reasonable policies, procedures, rules
and operating instructions to be employed by its servants, agents, employees or other
persons under its control;
3.8.3 take reasonable steps to ensure that all passengers making use of the rail service
suffer no harm whilst making use of the rail service and/or boarding and/or disem-
barking the Defendant’s trains;
3.8.4 the Plaintiff made use of the rail service and was lawfully entitled to be a passenger
on the train, having purchased a passenger ticket, that was valid for the intended trip,
from the Defendant;
4. On or about 20 December 2008 and at approximately 10:30 outside Germiston Station, whilst
a fare paying passenger on the train, the Plaintiff was injured when he was thrown from the
moving train by 3 unknown, unruly passengers (“the incident”).
5. The sole cause of the incident was the negligence of the Defendant and/or the servants of the
Defendant, acting within the course and scope of their employment with the Defendant, in that
they:
5.1 failed to ensure the safety of their fare paying passengers, more specifically the safety of the
Plaintiff;
5.2 allowed the train in which the Plaintiff was a passenger to travel with open doors, alter-
natively doors that could easily be opened and closed whilst the train was in motion, thus
causing a safety hazard;
5.3 failed to implement any, alternatively and proper and/or adequate safety measures to ensure
the safety of their fare paying passengers;
5.4 failed to exercise the degree of care and skill that could reasonably be expected of a public
conveyor of passengers;
5.5 failed to avoid the incident when by the exercise of reasonable care and skill they could and
6. By acting as the aforesaid the Defendant negligently breached its duty of care.
7. As a direct result of the incident the Plaintiff sustained severe bodily injuries consisting of an
amputation to the right leg below the knee and an amputation of his toes on his left foot.
©LSSA 236
8. As a direct result of the injuries sustained Plaintiff suffered damages in an amount of

R2 000 000.00 made up as follows:
8.1 Past Hospital and Medical Expenses R50 000.00
The Defendant has already been placed in possession of documentary proof in
respect thereof.
8.2 Estimated future medical expenses R250 000.00
Plaintiff will in future have to incur medical and related expenses in respect of
conservative and operative treatment, analgesics and anti-inflammatory medica-
tions, visits to specialists and prosthesis, replacement prosthesis and associated
paraphernalia. The amount claimed is an estimate and Plaintiff is at this stage
unable to give greater particularity in that regard.
8.3 Loss of earnings/earning capacity R1 000 000.00
At the time of the incident the Plaintiff was employed at Docufile as a packer
and earning R2000.00 per month. As a result of the injuries sustained and their
sequelae Plaintiff has been rendered totally unemployable.
8.4 General damages R700 000.00
Plaintiff suffered and will in future endure pain and suffering, loss of amenities of
life, disfigurement and disablement. The amount claimed is a globular estimate it
not being practicable to apportion it to the various heads of damages.
TOTAL R2 000 000.00
9. In the premises Defendant is liable to the Plaintiff in the sum of R2 000 000.00.
10. Notwithstanding demand, the defendant refuses and / or neglects to pay the amount claimed or
any portion thereof.
WHEREFORE plaintiff pays for the judgement against the defendant for:
1. payment of the amount of R2 000 000.00;
2. Interest tempore morae of 10.25% per annum from date of judgement to date of payment;
costs of the suit;
3. further and /or alternative relief.
DATED at SANDTON on the ______________________________day of MAY 2016
_____________________________
ATTORNEY
Plaintiff’s attorney (signed in terms of section 4 (2) of the Right of Appearance in Courts Act, Act No.
62 of 1995.)
____________________________
ATTORNEY
Plaintiff’s attorney
ADDRESS
Tel:
Ref:
©LSSA 237
F. PRACTICE NOTES: UNLAWFUL ASSAULT
AND ARREST
22. ASSAULT AND/OR ARREST AS BASIS FOR A CLAIM FOR DAMAGES
22.1 DEFINITION
Under the common law assault consists of unlawfully and intentionally:
• applying force to the person of another; or
• creating or inspiring a belief in another person that force is immediately to be applied to him or
her. It is sometimes also referred to as “common” assault. Assault could also be assault with the
intention to cause grievous bodily harm. This is sometimes referred to as “assault gbh”. If an
assault is committed by the perpetrator with the intention to cause serious bodily injury it would
then be assault with the intention to cause grievous bodily harm. The victim does not actually
have to sustain serious injuries. The intention to cause serious injuries or harm to the victim is
the decisive element.
S v Zwezwe 2006 (2) SACR 599 (N). For the crime of assault with the intention to cause grievous
bodily harm the enquiry into the existence of such intent requires consideration of the following
factors, which list is not a numerus clausus:
(a) the nature of the weapon used and in what manner it was used;
(b) the degree of force used and how such force was used;
(c) the part of the body aimed at; and
(d) the nature of injury, if any, which was sustained.
Both forms of assault constitute crimes.
Assault could further also be an act that is a statutory offence in terms of the Criminal Law (Sexual
Offences and related matters) Amendment Act, 32 of 2007, as amended. Any assault violates a
person’s bodily integrity.
Minister of Safety and Security v Mohofe [2007] 4 All SA 697 (SCA), 2007 (4) SA 215 (SCA).
Medical treatment given without the informed consent of the patient does not constitute assault.
22.2 THE CAUSE OF ACTION
22.2.1 ASSAULT
The relief for violations of a person’s corpus or bodily integrity, dignitas or dignity; and fama or repu-
tation lies in the actio iniuriarum. An assault violates a person’s bodily integrity. The bodily integrity
that is protected includes the right to mental well-being. The assault on the person’s bodily integrity
may be of such a nature that it also impairs the person’s dignity and/or reputation. The relief for
violations of a person’s corpus or bodily integrity, dignitas or dignity; and fama or reputation lies in
the actio iniuriarum.
22.2.2 ARREST
An assault is often associated with arrest by members of the SAPS or Metro police. The arrest in itself,
if lawful, will not lead to a claim for damages. If the arrest is unlawful though, the unlawful depriva-
tion of a person’s liberty is an infringement upon the arrested person’s personal liberty and a claim
©LSSA 238
may be instituted for such a personal injury as well. Again the relief for such an unlawful arrest and
detention lies in the actio iniuriarum.
22.3 WRONGFULNESS
22.3.1 ASSAULT
No assault can take place without an intention to injure being present. Any allegation of assault
implies that an intention to injure was present (animus iniuriandi). (Bennett v Minister of Police
[1980] 3 All SA 817 (C), 1980 (3) SA 24 (C)).
Such intention to commit an act that infringes the bodily integrity of another person renders that
conduct prima facie unlawful. The plaintiff is required to lead evidence to establish the fact of phys-
ical attack, interference or immediate threat of an assault.
Facts must be alleged and proven which prima facie and objectively proves such a wrongful act. It
follows that an allegation of assault that is proven implies that the assault was wrongful and that the
animus iniuriandi was present. An objective test is applied.
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A). An allegation of assault implies wrong-
fulness.
Groenewald v Groenewald [1998] 2 All SA 335 (A), 1998 (2) SA 1106 (SCA). The plaintiff jumped from
a third story of a building after being assaulted and threatened by the defendant with death. She
sustained injuries in the fall. The defendant was at fault, as long as he intended to cause harm to the
plaintiff, even if he did not intend that the consequences of such conduct would be to cause the kind
of harm actually suffered by the plaintiff or harm of that general nature.
He would also be held to be at fault if a reasonable person in the position of the defendant would
have realized that harm to the plaintiff might be caused by such conduct, even if he would not have
realized that the consequences of that conduct would be to cause the plaintiff the very harm he actu-
ally suffered or harm of that general nature.
The defendant is liable to the plaintiff for damages and those damages need not necessarily be
reasonably foreseeable, as this criterion it is one of many criteria which might flexibly be applied as
a matter of policy to determine whether or not the damages actually suffered by the plaintiff are or
are not too remote too hold the defendant liable.
22.3.2 ARREST
An unlawful arrest and detention could be done maliciously. This implies that the procedures for a
lawful arrest is abused in order to achieve an unlawful deprivation of a person’s liberty. This may be
done in various ways:
• the arrest may be done in terms of an irregular warrant where the arrestor is aware of such irreg-
ularity; or
• the arrest may be done in terms of an irregular process where the arrestor is aware of such irreg-
ularity.
• Where the arrestor is a member of the SAPS and is unaware of the irregularities mentioned above,
he/she is exempt from liability in terms s 55(1) of the South African Police Services Act 69 of 1995.
The plaintiff who complains of an unlawful or malicious arrest does not have too allege or prove
wrongfulness. The intention to arrest end/or detain a person is prima facie wrongful and sufficient.
22.4 WHO MAY BE HELD RESPONSIBLE?
22.4.1 THE WRONGDOER

The person or persons who committed the assault can be held liable for the victim’s damages. This
©LSSA 239
would generally be the case where an individual assault the victim. It may also be that the actual
assault is executed by individuals that are acting on orders of another individual that is not physically
participating and may not even be present when such and assault takes place. Both the person on
whose orders the assault takes place as well as the persons who execute such an order incur liability
for the damages of the victim. If the wrongdoer also deprived the victim of his liberty through “arrest”
or otherwise, the claim may include damages for his/ her unlawful confinement.
22.4.2 OTHER PERSONS / ENTITIES VICARIOUSLY LIABLE

The vicarious liability is usually based on a commission.
Other defendants may also be vicariously held liable for an assault committed by another. The most
common occurrence of such vicarious liability is the liability of the State where a member of the South
African Police Services (“SAPS”) in the course of his or her employment and in the execution of his
or her duties commits an assault. The State is liable for the acts of a policeman or policewoman who
assaults the plaintiff during an arrest performed by the former pursuant to the exercise of a discretion
to arrest.
It follows that an unlawful arrest can also be included in the claim.
The vicarious liability may also be based on an omission.

The claim may also be based on the fact that the organ of state failed in its constitutional duty to
protect resulting in injury to the plaintiff and damages suffered.
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). The State has a constitutional
obligation to protect individuals against criminal acts of violence of third parties. If an Organ of State
fails to do so such failure may give rise to delictual liability.
Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA), 2002 (6) SA 431
(SCA).
Minister of Safety and Security v Carmichele [2003] 4 All SA 565 (SCA), 2004 (3) SA 305 (SCA).
A reasonable police captain and a reasonable control prosecutor would not have recommended to a
court, with the information at their disposal, that an accused should be released, whether on bail or
with a warning without enquiring into the reasons for the opinion of an experienced detective that the
accused may be so released. They were not entitled rely blindly on such an opinion where there was
nothing in the docket which justified the opinion. They were obliged, considering the nature of the
crime, each to have made an independent assessment. The departmental guidelines issued to both of
them required of them to have opposed bail. Negligence depends on the facts of a particular case. The
investigator had no reasons for his opinion, and therefore all three are negligent when the accused,
having been released on warning, viciously attacked and injured Carmichele.
Minister of Safety and Security v Mohofe [2007] 4 All SA 697 (SCA), 2007 (4) SA 215 (SCA).
F v Minister of Safety and Security and Another 2012 (1) SA 536 (CC). 13 year old plaintiff needed,
and was offered, a lift home by an off-duty policeman employed with the SAPS as a crime investigator.
He was on standby duty and could have been called upon to attend to any crime-related incident. He
was paid the prescribed hourly tariff for being on standby duty. The policeman then raped the girl.
Held: Plaintiff had no reasonable grounds to trust the wrongdoer as a policeman. There was no
simultaneous omission and commission as he was not on duty. He had not in his capacity as a
policeman, offered the plaintiff safe conveyance home and there was no special duty to protect her.
As a crime investigator, he was not employed to perform public order maintenance functions nor was
it his particular job to ensure the safety of the public. There was not a sufficient connection between
the policeman’s crime and his employment. The Minister is not vicariously liable.
K v Minister of Safety and Security (CCT52-04) [2005] ZACC 8; 2005 (6) SA 419 (CC). The applicant
was raped by 3 uniformed on-duty policemen who offered her a lift home. It was admitted by the
Minister that as policemen who were on duty, the three policemen had a general duty to ensure the
safety of members of the public and to prevent crime. In so doing, their employer’s obligation (and
theirs) to prevent crime was not met. The Minister is held vicariously liable.
©LSSA 240
The relevant Minister, who currently would be the Minister of Police, is the nominal defendant repre-
senting the State. The policeman or policewoman who physically committed the assault is usually
cited as the second defendant.
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A).
Minister of Law and Order v Monti [1995] I All SA 464 (A), 1995 (1) SA 35 (A).
Some earlier cases refer to the Minister of Safety and Security, merely because at the time the South
African Police Services resorted under that Minister and there was no Minister of Police at the time.
Any municipality may also incur vicarious liability for the actions of a member of their Metropol-
itan Police department in their official capacity as the municipality responsible for that Metropolitan
Police department. The establishment of a municipal police service (MPS) is contained in the South
African Police Service Amendment Act No 83 of 1998. Municipal police services exist entirely inde-
pendently of the SAPS and are funded by, and accountable to, local or city governments.
The Act states that any municipality (urban, rural, large or small) may apply to establish a munic-
ipal police service. The provincial Minister of Safety and Security may approve the application after
consultation with the National Commissioner of the SAPS and the MEC’s for local government, finance,
transport and traffic.
In the large South African cities, the municipalities are often referred to as “metropolitan councils”,
and their police are generally known as the Metro Police. The acronym “MPD” is used together with
the first letter of the name of the Metro. The Johannesburg Metropolitan Police department is therefore
known as the “JMPD” and the Tshwane Metropolitan Police department as the “TMPD”.
It is of critical importance to identify the wrongdoer’s employment status correctly as this may
impact on the claimant’s chances to actually recover the damages as the perpetrator usually would
not have the means to satisfy the claim.
22.5 PRESCRIPTION
22.5.1 IF THE DEFENDANT IS AN INDIVIDUAL

The Prescription Act 68 of 1969, as amended, is applicable. Summons must be issued and served on
the wrongdoer before the expiry of a period of three years from the date on which the claim arose.
The Prescription Act however requires that for prescription to start running, the “creditor” (the
plaintiff) must have knowledge of the identity of the “debtor” (the defendant) and of the facts from
which the debt arises. A creditor shall be deemed to have knowledge if he could have acquired it by
exercising reasonable care. If the creditor is found to have been negligent in this regard, the courts
would not come to his assistance. In the case of a minor, his claim will become prescribed one year
after the year in which he becomes a major.
Claim against a private individual based on sexual abuse and assault that happened 39 years
ago did not prescribe.
Van Zijl v Hoogenhout [2004] 4 All SA 427 (SCA). In a damages claim based on sexual offences
committed 39 years ago, the plaintiff can’t reasonably have been expected to have had knowledge
of the wrong before she acquired actual knowledge and insight into the fact that the person bearing
responsibility for her being sexually abused and assaulted during her childhood, was not herself but
actually the abuser. Prescription for her claim for damages against the abuser only starts to run at the
date of this realisation. She was therefore not negligent in her delay to institute a claim.
22.5.2 IF THE DEFENDANT IS AN ORGAN OF STATE

The Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 as amended
applies. The Act defines “Organ of State as follows:
‘organ of state’ means-
(a) any national or provincial department;
©LSSA 241
(b) a municipality contemplated in section 151 of the Constitution;
(c) any functionary or institution exercising a power or performing a function in terms of the
Constitution, or a provincial constitution referred to in section 142 of the Constitution;
(d) the South African Maritime Safety Authority established by section 2 of the South African Mari-
time Safety Authority Act, 1998;
(e) The South African National Roads Agency Limited contemplated in section 3 of The South
African National Roads Agency Limited and National Roads Act, 1998;
(f) National Ports Authority Limited, contemplated in section 4 of the National Ports Act, 2005, and
any entity deemed to be the National Ports Authority in terms of section 3 of that Act;
(g) any person for whose debt an organ of state contemplated in paragraphs (a) to ( f) is liable;”
Section 3(1)(a): The Organ of the State must be given notice within six months of the date on
which the cause of action arose.
Section 3 of Act introduced a 6 month notice period from the date on which the debt became due.
In such a notice the claimant must briefly set out-
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.
Should the debtor fail to serve such a notice in accordance with the provisions of the act, the
claimant would first have to request and obtain condonation from the debtor (the organ of state). If
it is refused the claimant would have to bring an application to court for condonation of the fact that
the notice had been given late.
The notice period also runs against minors and their natural guardians.
Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA). This period also runs against minors because
the definition of a “creditor” the Prescription Act and in Institution of Legal Proceedings against
Certain Organs of State Act differs from each other. A creditor in the Prescription Act includes a minor,
but not the minor’s natural guardian that would be enforcing the minor’s claim. However, a creditor
under the Institution of Legal Proceedings Act includes a minor’s natural guardian that would be
enforcing the minor’s claim.
In terms of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 the
prescriptive periods against national or provincial departments or municipalities have been extended
to coincide with the provisions of the Prescription Act 68 of 1969. The summons would have to be
served on the organ of state before the expiry of 3 years, even in the absence of the notice, otherwise
an application for condonation of the late service of the notice would not succeed.
Before a State institution is sued, the Act which creates and governs such an institution must
first be scrutinised. National Roads are for instance in the care of the South African National Roads
Agency (SANRAL) which is governed in terms of the South African National Roads Agency Limited
and National Roads Act 7 of 1998.
Claims against the SAPS, the South African National Defence Force, State or Provincial Hospitals
also resort under Act 40 of 2002.
22.5.3 IF THE DEFENDANT IS A MEMBER OF THE SAPS

The SAPS is an organ of State. The Institution of Legal Proceedings against certain Organs of State
Act 40 of 2002 as amended applies.
K v Minister of Safety and Security (CCT52-04) [2005] ZACC 8; 2005 (6) SA 419 (CC). The applicant
was raped by 3 uniformed on-duty policemen who offered her a lift home. It was admitted by the
Minister that as policemen who were on duty, the three policemen had a general duty to ensure the
safety of members of the public and to prevent crime. The Constitutional Court held that there was a
close connection between the wrongful conduct of the policemen and the nature of their employment.
The opportunity to commit the crime would not have arisen but for the trust the applicant placed in
them because they were policemen, a trust which harmonises with the constitutional mandate of the
police and the need to ensure that mandate is successfully fulfilled. When the policemen – on duty
and in uniform – raped the applicant, they were simultaneously failing to perform their duties to
©LSSA 242
protect the applicant. In committing the crime, the policemen not only did not protect the applicant,
they infringed her rights to dignity and security of the person. In so doing, their employer’s obligation
(and theirs) to prevent crime was not met. The Minister is held vicariously liable.
22.5.4 IF THE DEFENDANT IS A MEMBER OF A METRO POLICE DEPARTMENT

The South African Police Service Amendment Act No 83 of 1998, s [a68y1995s64I]64 I “Legal proceed-
ings against municipal police service”, states that: “(1) Any legal proceedings against a municipal
police service or member of a municipal police service for the recovery of a debt as defined in the
Institution of Legal Proceedings against certain Organs of State Act, 2002, shall be instituted against
the municipal council in question.” The latter Act also includes a municipality contemplated in section
151 of the Constitution as an Organ of State.
22.5.5 IF THE DEFENDANT IS AN EMPLOYEE OF A NON-STATE ENTITY
Isaacs v Centre Guards CC Trading as Town Centre Security (8286/02) [2003] ZAWCHC 45 (11
September 2003). A burglar was shot by a security guard, resulting in complete paraplegia. Although
the security guards conditions of employment prohibited him from carrying a firearm, the court found
that he unlawfully assaulted the plaintiff. He was still acting within the course and scope of his
employment with the defendant. The prohibition against the use of a firearm on duty dealt only with
the security guard’s conduct within the sphere of his employment, and did not affect the sphere of his
employment as such. The employer is held to be vicariously liable.
22.6 DEFENCES
22.6.1 JUSTIFICATION
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A); Bennett v Minister of Police [1980] 3 All
SA 817 (C), 1980 (3) SA 24 (C). Once the bodily infringement is proved the onus rests on the wrongdoer
to prove some excuse or ground of justification such as “self-defence”.
Harms in “Amler’s Precedents of Pleadings” 8th ed LexisNexis 2015 contends that: “If the defence
is one of justification, it is inadvisable for the defendant to admit in her or his plea to an “assault” on
the plaintiff. The defendant should rather use a neutral word such as “striking” which does not carry
with it an implication of wrongfulness or animus iniuriandi.”
22.6.2 SELF-DEFENCE
In order to succeed with a plea of self-defence (also referred to as private defence), the defendant must
plead and prove:
(a) an unlawful attack on the defendant by the plaintiff, regardless of whether it was real or only a
threat of an attack;
(b) reasonable grounds for the defendant to believe that he was in physical danger;
(c) that the force used was reasonable and necessary in the circumstances to overcome the attack.
The force used had to be proportional to the force applied by the attacker and it had to be
directed at the attacker.
S v Makwanyane 1995 (6) BCLR665 (CC), 1995 (3) SA 391 (CC) para. Self-defence takes place at the time
of the threat to the victim’s life, at the moment of the emergency which gave rise to the necessity and, tradi-
tionally, under circumstances in which no less-severe alternative is readily available to the potential victim.
©LSSA 243
22.6.3 NECESSITY
The defendant’s action here does not have to be directed at an attacker. An innocent person may be
the target of the action for the purpose of protecting an interest of the actor or of a third party against
a dangerous situation. It is a factual question whether a situation existed that warranted an act of
necessity. It must be determined objectively.
The person who inflicts harm in a situation of necessity may only do so if the danger already
exists, or is imminent. There must be no other reasonable means available to avert the danger. The
means used and measures taken to avert the danger of harm must not be excessive, having regard to
all the circumstances of the case.
22.6.4 JUSTIFICATION: LAWFUL ARREST OR PREVENTING ESCAPE

The Criminal Procedure Act 51 of 1977 (as amended) in s 49(1) provides that, if any person authorised
under the Act to arrest or assist in arresting another attempts to arrest such person and the latter:
(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest her or him is being made, or resists such attempt
and flees, the person so authorised may, in order to effect the arrest, use such force as may in
the circumstances be reasonably necessary to overcome the resistance or to prevent the person
concerned from fleeing.
The defendant must then allege and prove that:

(a) the defendant acted lawfully; or
(b) the defendant had reasonable grounds for suspecting the commission of an offence by the plain-
tiff, on which grounds the defendant was by law entitled to arrest the plaintiff;
(c) the defendant attempted to arrest in a manner prescribed by law;
(d) the plaintiff attempted to prevent or escape arrest; and
(e) the force employed by the defendant was reasonably necessary to bring about the arrest.
Petersen v Minister of Safety and Security [2009] ZASCA 88, [2010] 1 All SA 19 (SCA). The defence
of necessity may also be relied on when force is necessary to effect a lawful arrest or prevent an
escape from arrest.
Ramsay v Minister van Polisie [1981] 4 All SA 692 (A); 1981 (4) SA 802 (A). If the arrestor have an
honest belief that the arrest is lawful, it still does not constitute a defence.
Ex parte Minister of Safety and Security: In re: S v Walters 2002 (4) SA 613 (CC). Where arrest
is called for, force may be used only where it is necessary in order to carry out the arrest. Where
force is necessary, only the least degree of force reasonably necessary to carry out the arrest may
be used. In deciding what degree of force is both reasonable and necessary, all the circumstances
must be taken into account, including the threat of violence the suspect poses to the arrester or
others, and the nature and circumstances of the offence the suspect is suspected of having committed;
the force being proportional in all of these circumstances. Shooting a suspect solely in order to
carry out an arrest is permitted in very limited circumstances only. Ordinarily such shooting is
not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected
on reasonable grounds of having committed a crime involving the infliction or threatened inflic-
tion of serious bodily harm and there are no other reasonable means of carrying out the arrest,
whether at that time or later. These limitations in no way detract from the rights of an arrester
attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.
Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA), 2001 (2) SACR 197 (SCA). The
onus lies on a defendant who admits the ‘assault’ to prove the lawfulness of the ‘assault’ and arrest.
22.6.5 CONSENT
The plaintiff’s consent as a defence falls to be decided according to the principles of volenti non fit
iniuria. See in this regard 19.4 above where this defence is discussed in some detail.
©LSSA 244
22.6.6 PROVOCATION IS NOT A DEFENCE FOR ASSAULT: AUTOMATISM MAY BE A

DEFENCE
S v Eadie (196/2001) [2002] ZASCA 24 (27 March 2002). Provocation may mitigate damages but
cannot justify an assault. His defence was one of temporary non-pathological criminal incapacity
resulting from a combination of severe emotional stress, provocation and a measure of intoxication,
thus placing in dispute that at the material time he could distinguish between right and wrong and
that he could act in accordance with that distinction. The deceased’s aggressive and provocative
behaviour did not entitle the appellant to behave as he did. An accused can only lack self-control
when he is acting in a state of automatism. To consciously giving in to one’s anger or to other
emotions and endangering the lives of motorists or other members of society will not be tolerated.
The appellant’s defence and appeal was rejected.
22.7 DAMAGES
For a non-contumelious infringement of a person’s physical integrity (as in the case of, for example,
an unauthorised surgical operation) the only available cause of action is the actio legis Aquiliae for
the recovery of actual damages. Sentimental damages cannot then be claimed.
Damages for contumelia is awarded for a direct and serious invasion of the plaintiff’s bodily integ-
rity and personal dignity. It is often referred to in case law as “insult” resulting in sentimental
damages. These damages should not be confused with damages for mental pain or anguish or psycho-
logical illness and its consequences.
Heads of damages that may be claimed for unlawful arrest and/or assault
Prinsloo v Du Plooy 1952 (4) SA 219 (O). Special Damages (patrimonial damages) may be claimed
(contumelia need not be present) but particulars of such patrimonial damages must be furnished.
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C). General damages (Non-patri-
monial damages) need not be particularised.
Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3)
SA 786 (5 June 1997). A breach of a constitutional duty by the State does not give rise to a claim for
additional damages, which may be referred to as “constitutional” damages of punitive damages.
Awards for unlawful assault

Minister of Police v Dlwathi (20604/14) [2016] ZASCA 6 (2 March 2016). General damages was
awarded by the trial court to a practicing advocate who was unlawfully assaulted by members of the
SAPS in the presence of friends in the amount of R675 000. The SCA finds this to be excessive and
reduces the general damages reduced to R200 000.
Awards for unlawful arrest

Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; [2007] 1 All SA 558 (SCA)
(30 May 2006). 63-year old male deprived of his liberty for 5 days in the year 2000. He suffered no
degradation beyond that that is inherent in being arrested and detained. R90 000 awarded;
Janse Van der Walt & Another v The Minister of Safety & Security (26171/06; 26119/06) [2011]
ZAGPJHC 15 (25 January 2011). 2 ex-policemen unlawfully arrested. They had spent one week in
various cells since the day of their arrest on 26 May 2004. As a result of a cold night in a crowded
cell on a cement floor, both of the plaintiffs developed influenza. On 1 June 2004, they were again
taken in chains to the Magistrate’s Court where the armed robbery charge was changed and they were
given bail on an unopposed basis. Both plaintiffs were traumatised by their incarceration and the
circumstances under which they were kept. Both suffered psychologically for a considerable period
after they were released. As former police officers and as criminal investigators they were humiliated
by being paraded in public as criminals and by being treated as criminals for a period of 7 days. They
suffered reputational harm and experienced that people in their work environment were suspicious
of them after their release. Court awards R250 000 to each plaintiff.
©LSSA 245
22.8 PRECEDENTS
22.8.1 CLAIM FOR DAMAGES: ASSAULT

On [date] at [place], the first defendant unlawfully assaulted the plaintiff by [for example, hitting him
with a hockey stick].
At all material times, the first defendant was acting within the course and scope of his employment
with the second defendant.
The assault took place in public and within sight of members of the public.
As a result of the assault, the plaintiff:
a) had to undergo medical treatment [detail];
b) was unable to work for [period] and consequently suffered a loss of income;
c) suffered contumelia.
As a result of the foregoing, the plaintiff suffered damages in the amount of [amount] made up as
follows: [detail].
PLEA OF JUSTIFICATION
Defendant admits that he hit the plaintiff as alleged but pleads that he was justified in so doing inas-
much as the plaintiff had attacked him with a stick and the defendant’s actions were necessary for
his own protection.
22.8.2 CLAIM: ASSAULT BY SAPS MEMBERS

[From Harms in “Amler’s Precedents of Pleadings” 8th ed LexisNexis 2015 as derived from Minister
of Law and Order v Monti 1995 (1) SA 35 (A) p. 36.]
1. On or about 10 November 1984 and at or near Wood Street, Grahamstown, the plaintiff was
wrongfully and unlawfully assaulted by a member or members of the South African Police
Services whose identity or identities are to the plaintiff unknown, in that:
(i) he/they took hold of the plaintiffs clothing and forced him into a partially burnt-out beer
hall;
(ii) he/they shot the plaintiff from behind and in the back;
(iii) he/they thereafter slapped the plaintiff with a flat hand in the face;
(iv) he/they thereafter poured the contents of a bottle of wine onto the plaintiff’s head.
PLEA OF JUSTIFICATION: LAWFUL ARREST

1. The defendant admits only:
(i) that at approximately 11h00 on 10 November 1984, and in the vicinity of a beer hall at
Wood Street, Grahamstown a policeman shot the plaintiff with birdshot;
(ii) that subsequent to the plaintiff being shot as aforesaid, he was lawfully arrested and
detained;
(iii) that at all relevant times the members of the South African Police Services who shot,
arrested and detained the plaintiff were servants of the defendant acting within the course
and scope of their employment;
(iv) that the events set out above took place within the area of jurisdiction of this honourable
Court.
2. The defendant however denies that the said policeman, in shooting the plaintiff as aforesaid,
acted wrongfully and unlawfully and pleads that he acted lawfully and reasonably in that:
(i) the plaintiff was a member of a group of approximately 20 persons who had committed the
offence of breaking and entering certain premises with the intention to steal and of theft
and public violence;
©LSSA 246
(ii) the said policeman, in shooting the plaintiff, did so:

(aa) to maintain law and order;
(bb) to protect life and property;
(cc) to identify and arrest the culprits who had committed the offences set out above.
(iii) The defendant denies further that the arrest of the plaintiff was wrongful and unlawful,
and pleads that it was necessary due to the plaintiff having taken part in the offences as
set out above.
(iv) Subject to the foregoing, the defendant denies that the plaintiff, was assaulted whether as
alleged or at all and puts plaintiff too the proof thereof.
(v) The plaintiff’s allegations, insofar as they are inconsistent with the foregoing, are denied.
22.8.3 CLAIM: OMMISSION BY MEMBERS OF THE SAPS

[From Harms in “Amler’s Precedents of Pleadings” 8th ed LexisNexis 2015 as derived Moses v Minister
of Safety and Security 2000 (3) SA 106 (C)]
1. At the cells of the police services Atlantis, on or about 21 April 1996 the deceased - as a result
of the negligence of unknown servants of the defendant, whilst acting in the course and scope
of their employment as policemen was unlawfully and intentionally assaulted and sodomised
by co-detainees whilst in lawful custody and as a result of his injuries, he died on 29 August
1997.
2. The defendant’s servants were negligent in one or more of the following respects:
(a) they failed to protect the deceased from being assaulted and sodomised whilst he was
being held in custody;
(b) they placed the deceased in a cell with ‹gangsters› whom they knew or ought to have
foreseen would assault him;
c) they failed to exercise reasonable care to prevent the deceased from being assaulted and
sodomised when there was a legal duty on them to do so; and
(d) they failed to take reasonable or adequate steps to prevent the assault when by exercising
reasonable care they could have done so.
3. As a consequence of the said assault and act of sodomy the deceased suffered severe trauma to
his head as a result whereof he died on 29 August 1997; an injury to his ear; and anal bruises.
22.8.4 PARTICULARS OF CLAIM: ARREST AND ASSAULT BY MEMBERS OF THE JMPD
1. The plaintiff is Andries Dakalo, a major male self – employed businessman, residing at number
123, 15th Avenue, Alexandra, Johannesburg.
2. The first defendant is Joe Omaramba, a major male traffic official, employed by the Johannes-
burg Metropolitan Police Department situated on 8th and 9th Street, Marlboro Gardens, and
who is currently residing at the Alexandra Township, Corner of 17th Avenue and London Road,
Alexandra.
3. The second defendant is the City of Johannesburg Metropolitan Municipality, in their official
capacity as the municipality responsible for the Johannesburg Metropolitan Police Department
and whose address for purposes of service is Johannesburg Metropolitan Police Department,
158 Loveday Street, Braamfontein, B-Block 2010, Risk and Audit Department, Johannesburg,
2001.
4. The entire cause of action arose within the jurisdiction of the above Honourable Court.
5. At all material times hereto the first defendant was acting within the course and scope of his
duties as a Traffic Official and was at all material times employed by the Second Defendant.
6. On the 4th day of April 2012 in Alexandra the plaintiff was unlawfully arrested by the first
defendant for allegedly obstructing traffic.
©LSSA 247
7. The plaintiff was detained at the Alexandra Police Station for 3 (three) days at the instance of
the first defendant and various other police officers, whose names and ranks are to the plaintiff
unknown.
8. The plaintiff’s right to freedom was infringed as well as his right to legal representation was
infringed due to his unlawful detention and the fact that he was not allowed or given the oppor-
tunity to contact his family or to seek legal representation.
9. On the 7th of April 2012 while awaiting his appearance in the Magistrates’ Court, the plaintiff
was approached by a police officer who informed him that he was free to go, this being prior to
any Court appearance.
10. The plaintiff was further unlawfully assaulted by the first defendant on several occasions
during his unlawful detention by being slapped through the face with an open hand in the
presence of policemen whose identities are unknown to the plaintiff.
11. As a result of the aforementioned, the plaintiff suffered emotional shock and trauma, physical
and emotional pain and suffering, contumelia and suffered damages in the amount of R80 000
calculated as follows:
11.1. Contumelia in the amount of R75 000 00
11.2. Loss of income in the amount of R5 000 00 as the plaintiff was unable to work for the
said time.
12. A notice of intended legal proceedings was delivered to the second defendant by hand. A copy
of proof of delivery by hand is attached hereto as Annexure B1.
13. Despite demands the defendants have failed to pay.
WHEREFORE the plaintiff pays for judgement against the defendants jointly and severally, the one to
pay and the other to be absolved as follows:
a) Payment in the amount of R80 000 00;
b) Interest tempore morae thereon from date of demand to date of final payment;
c) Costs of suit;
d) Further and/or alternative relief.
Dated at JOHANNESBURG on this the 14th day of March 2011.
____________________________
E. RADLEY
UNIVERSITY OF JOHANNESBURG
LAW CLINIC
Attorneys for the Plaintiff
Cnr. Siemert and Beit Streets
Doornfontein Campus
Louisa Street
House 5a
Doornfontein
Johannesburg
(P. O. Box 17011, Doornfontein, 2028)
Tel: (011) 559 6763
Fax: (011) 559 6553
Docex 202 Johannesburg
Ref: M56/08
©LSSA 248
TO: THE CLERK OF THE MAGISTRATES’ COURT FOR THE DISTRICT OF ALEXANDRA
233 Second street, Wynberg
AND TO: JOE OMARAMBA
Alexandra Township,
corner of 17th avenue and London road,
Alexandra.
2090
AND TO: CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY,
(THE JOHANNESBURG METROPOLITAN POLICE DEPARTMENT)
care of the Municipal Manager
158 Loveday street
Braamfontein
B-block 2010
Risk and Audit department
Johannesburg, 2001
22.8.5 NOTICE IN TERMS OF S 3(1)(a) OF INSTITUTION OF LEGAL PROCEEDINGS

AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002: ARREST AND ASSAULT
BY A MEMBER OF THE JMPD
22 September 2015
Our Ref: S5/15 (S) Q Badenhorst
Your Ref:
E-mail: abcde@uj.ac.za
The City of Johannesburg Metropolitan Municipality,

(For the Johannesburg Metropolitan Police Department)
Johannesburg Metropolitan Police Department,
158 Loveday Street,
Braamfontein,
B-Block 2010,
Risk and Audit Department,
Johannesburg, 2001
BY HAND
Dear Sir/Madam,
NOTICE IN TERMS OF S 3(1)(a) OF INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN

ORGANS OF STATE ACT 40 OF 2002 ANDRIES DAKALO / THE CITY OF JOHANNESBURG METRO-
POLITAN MUNICIPALITY, (FOR THE JOHANNESBURG METROPOLITAN POLICE DEPARTMENT)
UNLAWFUL ARREST, DETENTION AND ASSAULT: CASE NUMBER SH 182/16
1. We act on behalf of Mr Andries Dakalo (ID 830818 0013 0 87) who is an adult male born on 18
August 1983.
2. Our instructions are to institute legal proceedings against you for damages arising from our
client’s unlawful arrest and detention, and assault by the under-mentioned members of the
Johannesburg Metropolitan Police Department.
3. Our client was unlawfully arrested on 4 April 2012 by a Traffic officer Joe Omaramba of the
Johannesburg Metropolitan Police Department, a department of the City of Johannesburg Metro-
politan Municipality, for allegedly obstructing traffic.
4. At all material times Traffic officer Joe Omaramba was acting in the course and within the scope
of his employment.
©LSSA 249
5. Mr Dakalo was arrested and detained in a holding cell at the Alexandra Police Station for 3
days. While in detention he was not allowed to make any telephone calls to his family or to seek
legal assistance.
6. Mr Dakalo was assaulted by the above mentioned Traffic officer by being slapped through the
face with an open hand in the presence of policemen whose identities are unknown to the plain-
tiff.
7. On Monday 7 April 2012 while awaiting to appear before a magistrate he was approached by a
police officer who removed his file and was told that he was free to go, this being prior to any
Court appearance.
8. It is clear from the facts that our client was arrested without reason and deprived of his consti-
tutional rights, and unlawfully assaulted and as a result is entitled to claims damages from
you.
9. As a result of the aforementioned, the plaintiff suffered emotional shock and trauma, physical
and emotional pain and suffering, contumelia and suffered damages in the amount of R80 000
calculated as follows:
9.1. Contumelia in the amount of R75 000 00
9.2. Loss of income in the amount of R5 000 00 as the plaintiff was unable to work for the
said time.
10. Therefore our instructions are to claim payment in the amount of R80 000,00 within 21 days
hereof, failing which we shall institute action against you.
For further details, please contact the writer of this letter.
Yours faithfully
_____________________
[Signed: Attorney with full practice details]
©LSSA 250
G. PRACTICE NOTES: ANIMALS
23. ACTIO DE PAUPERIE OR ACTIO LEGIS AQUILIA
23.1 THE CAUSE OF ACTION: A DOMESTICATED ANIMAL CAUSES DAMAGES

The action de pauperie is a part of South African law since the decision of O’Callaghan NO v Chaplin
1927 AD 310.
In the actio de pauperie the owner of a domestic animal can incur delictually liability for injury and
damage caused by an animal. “Domestic animal” is construed to be a wide concept which includes
dogs, cats, horses, cattle and may even include bees. It gives rise to strict liability.
The actio de pauperie concurs with the actio legis Aquiliae and the action for pain and suffering,
but it is usually the preferred remedy in South Africa when a domestic animal caused the harm. It is
not based on fault. The defendant is not required to have to been negligent or intentional.
23.2 REQUIREMENTS
23.2.1 OWNERSHIP
The plaintiff needs to allege and prove that the defendant was the owner of the animal that caused
the injuries (Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA)).
23.2.2 DOMESTICATION
The animal had to be a domesticated animal.
23.2.3 IT ACTED AGAINST THE NATURE OF A DOMESTICATED ANIMAL

The animal had to act contrary to the nature of domesticated animals generally (contra naturam
sui generis) when it caused the plaintiff’s damages. A domesticated dog for instance would not be
expected to bite a person. That would be contrary to the dog’s domesticated nature. (Solomon NNO v
De Waal [1972] 2 All SA 112 (A), 1972 (1) SA 575 (A)).
Hunt in ‘Bad Dogs’ (1962) SALJ 79 326 at 328 states: “The contra naturam concept seems, in fact,
to have come to connote ferocious conduct contrary to the gentle behaviour normally expected of
domestic animals. This imports an objective standard suited to humans. It is far more refined than
behaviour literally natural to that species of animal.”
Green v Naidoo and Another 2007 (6) SA 372 WLD. “The somewhat bizarre nature of the rationes
in the authorities are to the effect that it is expected of such animals because they have become
domesticated, that they should be able to control themselves, and if they do not, they are regarded as
having acted contra naturam sui generis.”
23.3 THE ACTIO DE PAUPERIE AND NEGLIGENCE: ALTERNATIVE PLEAS

No negligence or intention to injure has to be attributed to the owner of the domesticated animal in
order to succeed with the claim. Fault on the owner’s part should be pleaded in the alternative and
based on the actio legis Aquiliae. This may be of aid to the plaintiff who fails to prove that:
• the defendant’s ownership of the animal at the time that the injury was sustained or damages
were caused; or
• that the animal acted contra naturam suam,
If fault is alleged in the alternative, the plaintiff may nevertheless be able to prove negligence on the
part of the defendant in failing to control the animal.
©LSSA 251
The claim may succeed on both bases
H obo H v Gungapursat (55619/14) [2015] ZAGPPHC 1129 (10 December 2015). The injured approxi-
mately 3 years and 4 months of age, living and riding his bicycle in a security complex was bitten
and seriously injured by a dog owned and/or under control of the defendant. Plaintiff as mother and
natural guardian of the injured boy, based her first claim on the actio de pauperie.
The plaintiff based an alternative claim on the actio legis Aquiliae alleging negligence
on the part of the defendant who was at all relevant times co-lessee of house 34 and in control
of the dog. In the alternative to denying the allegation that the dog acted contra naturam
suam and the allegation that he was negligent, the defendant pleaded that the plaintiff
and R were contributory negligent in that (i) the plaintiff failed and/or neglected to super-
vise the minor child; and (ii) the dog was provoked and aggravated by the minor child.
The defendant testified that the dog, an American pitbull terrier, belonged to his fiancee,
Me Chetty. Defendant denied that he was the owner and said that Me Chetty was the owner
and was the one who bought its food and took it to the vet. The court held that defendant
was the owner or the co-owner of the dog. Held: The dog acted contra naturam sui generis
when he caused the damage and that there is no defence to the claims of the plaintiff.
The defendant knew and admitted to the dog’s aggressiveness towards children. The defendant also
knew that it was only a matter of time before the dog would get over the wall and that it was likely
to bite strangers going about their ordinary business should it get out of the property. The defendant
thus failed to take reasonable or any steps to safeguard persons lawfully walking or cycling on the
roads in the complex from any possible attack on them by the dog. The defendant is liable for all the
plaintiff’s damages.
Damages can be extended to include emotional shock sustained by someone other than the
injured
Fourie v Naranjo [2007] 4 All SA 1152 (C), 2008 (1) SA 192 (C). Appellant Fourie was the owner of a
rottweiler dog known as Bruno which on the day in question and at the premises of Fourie attacked
and savaged Mrs Susanna Swart, a domestic servant in the employ of Fourie. The first respondent,
Mr Dominique Naranjo who was 67 years old at the time, hastened to Mrs Swart’s aid. He succeeded
in distracting Bruno from her, but sadly for him, he was then attacked and bitten first by Bruno and
thereafter by a second rottweiler that was on the premises, Naranjo claimed damages for pain and
suffering, medical expenses and the loss of his shirt and jacket, while Mrs Naranjo claimed damages
for the emotional shock and distress caused by her witnessing the accident and for medical expenses.
The cause of action against Fourie and Neethling was founded on their ownership of their dogs,
alleged to be domesticated, with the necessary allegation for the actio de pauperie that the dogs had
acted contrary to the nature of their class. In the alternative and in the event of the court holding that
Fourie and Neethling were not the owners of the dogs or that the dogs had not acted contrary to their
nature, it was alleged that Fourie and Neethling had acted wrongfully and negligently in failing to take
reasonable steps to safeguard persons lawfully on the premises of the first defendant when they knew
that the animals were at times vicious and likely to bite people who were lawfully on the premises.
The magistrate accepted the evidence of Mr and Mrs Naranjo, found that they had established the
merits of their claims in terms of the actio de pauperie. Their alternative claims based on negligence
were not dealt with.
Although an action de pauperie is usually brought by the person physically injured by an animal,
I am not aware of any authority which restricts the award of damages brought in such an action to
the person actually injured. In view of the development in the law to which I referred, there seems to
me to be no objection in principle to the action being extended to the recovery of damage caused by
emotional shock.
23.4 DAMAGES
The only available cause of action is the actio legis Aquiliae for the recovery of actual damages.
Damages for mental pain or anguish or psychological illness and its consequences may also be
claimed.
©LSSA 252
The heads of damages which may be claimed for are as follows:

• Past medical expenses;
• Past hospital expenses;
• Future medical expenses;
• Future hospital expenses;
• Past loss of earnings / loss of support;
• Future loss of earnings / loss of support;
• General damages.
23.5 DEFENCES
The onus is on the defendant to prove a defence. (Loriza Brahman v Dippenaar 2002 (2) SA 477
(SCA); Da Silva v Coetzee [1970] 4 All SA 46 (T), 1970 (3) SA 603 (T).
23.5.1 KNOWLEDGE THAT THE ANIMAL WILL ACT AGGRESSIVELY
Plaintiff was aware that the said dog was liable to be provoked by any people that entered the premises.
Cole v Pieterse N.O (11599/12) [2013] ZAGPJHC 394 (7 October 2013). The fact that a miniature Maltese
poodle had never before and never since bitten any person does not necessarily lead to the conclusion
that she had indeed acted contra naturam sui generis and that her behaviour thus is unacceptable.
The presence of the plaintiff in their territory again provoked the dog, as it always did in the past.
The defendant showed on a preponderance of probabilities that the plaintiff was aware that the
said dog was liable to be provoked by any people that entered the premises when she entered the
premises unannounced with her two grandchildren. The provocation caused the dog to bite one of
the children. In the absence of evidence to effect that such behaviour is not naturam sui generis, the
plaintiff failed to show on a balance of probabilities that the dog acted contra naturum sui generiis.
23.5.2 PROVOCATION OF THE ANIMAL

Da Silva v Coetzee [1970] 4 All SA 46 (T), 1970 (3) SA 603 (T). If it is proven that the animal that
caused the injury was provoked by the culpable conduct of the injured party, a third party or by the
conduct of another animal, it will serve as a defence as such conduct is not contra naturam sui generis.
23.5.3 KNOWLEDGE THAT THE ANIMAL WAS PROVOKED

Minister van Polisie v Chetty [1976] 2 All SA 508 (A), 1977 (2) SA 885 (A). A third party in charge or
control of the animal negligently failed to prevent the animal from injuring the victim.
23.5.4 UNLAWFUL PRESENCE ON THE PREMISES

Lever v Purdy [1993] 2 All SA 265 (A), 1993 (3) SA 17 (A). If the plaintiff enters the premises unlaw-
fully he opens himself to the risk of injury. Defendant must prove that the plaintiff had neither “a
lawful purpose to be on the premises, [nor] a legal right to be there”. It follows that people who are on
the premises may only be there by invitation or by permission. Such invitation or permission may be
express or implied, and renders their presence lawful.
23.5.5 VOLENTI NON FIT INIURIA

Lever v Purdy [1993] 2 All SA 265 (A), 1993 (3) SA 17 (A). In order to succeed with the defence of
volenti non fit iniuria or voluntary acceptance of risk, the defendant must allege and prove that the
plaintiff knew of the risk of sustaining injury from the defendant’s animal and voluntarily accepted
that risk.
©LSSA 253
23.5.6 IMDEMNITY
If an indemnity is displayed and brought to the attention of the plaintiff, or signed by the plain-
tiff where the plaintiff understands the terms thereof, the defendant may not be responsible or loss
caused by the defendant’s animal. An indemnity may exclude liability (See however the comments at
18.5 above relating to the current position).
Walker v Redhouse [2007] 4 All SA 1217 (SCA); 2007 (3) SA 514 (SCA). The court a quo found for
the plaintiff in this matter where the injured, Redhouse, was injured in a horse-riding accident. She
and her friend stayed at a lodge where one of the leisure activities offered was horse-riding. This
happened under the supervision of an experienced rider. She claimed to have ridden as a child, but
she had not ridden for approximately 15 years prior to the accident. She was briefed by the supervisor
before the outride started. The court a quo did not give much thought to the fact that before Redhouse
started the ride, she signed an indemnity.
The Supreme Court of Appeal accepted on the evidence that Redhouse frightened or startled the
horse, (who very appropriately had been named “Maverick”). The horse reacted, as horses would, by
running away and Redhouse eventually fell off. One of her feet was stuck in the stirrup, and as a
result she was dragged for a while and so sustained injuries. She was helped by some men fishing
nearby. The indemnity that Redhouse signed read as follows:
Walkersons Stables
Terms and Conditions
I hereby confirm that neither Walkersons or Critchley Hackle, or any member of their staff shall be
liable to me, my estate or dependants for any loss or damage sustained as a result of my death or injury
to my person or property in the course of my horse riding about the property of Walkersons. I acknowl-
edge that I am aware of the risks involved in horse riding and accept such risks.”
It is signed and dated (6 January 2001) by Redhouse. The terms of the indemnity were not in dispute.
It is only their interpretation that was placed in issue.
The Supreme Court of Appeal found that the language of the indemnity covers all liability resulting
from, or caused by, the activity of horse-riding regardless of whether or not the injury is caused by
a horse acting out of character. It is important to note that no negligence has been proven against
Walker or his staff. The risk was one inherent to horse-riding and therefore covered by the indemnity.
The claim was dismissed.
23.6 PRECEDENTS
23.6.1 CLAIM: BASED ON THE ACTIO DE PAUPERIE, ALTERNATIVELY ON THE ACTIO

LEGIS AQUILIAE
1. The Plaintiff is Belinda Ngobo, an adult nurse residing at 16666 Azure Street, Glenridge, Exten-
tion 11, Protea Glen.
2. The Plaintiff is cited herein in her capacity as mother and natural legal guardian of her minor
son Blessing Ngobo (herein after “the minor”), born on the 20th of October 2010 and residing
at 16666 Azure Street, Glenridge, Extention 11, Protea Glen.
3. The Defendant is Daisy Maake, an adult female currently residing at 16667 Azure Street, Glen-
ridge, Extention 11, Protea Glen and whose further particulars are to the Plaintiff unknown.
4. On or about the 31st of January 2015 and at approximately 10:15, whilst playing outside his
home, the minor was attacked (herein after the “incident”) by a dog (herein after” the animal”)
under the direct control of the Defendant.
5. At all material times the Defendant was the owner and in direct control of the animal.
6. The incident was caused due to said animal acting contrary to the nature of its class.
7. Alternatively, in the event of the court’s holding that the defendant was not the owner of the
animal or that the animal did not act contrary to the nature of its class, the plaintiff alleges
©LSSA 254
that the incident was caused solely by the negligence of the defendant who was negligent and
/ or acted wrongfully in one or more of the following respects:
7.1. the defendant knew or should have known that the dog was at times vicious and likely to
bite strangers lawfully visiting;
7.2. the defendant failed to take any steps to safeguard persons lawfully on his premises from
any possible attack on them by the dog;
7.3. she failed to properly restrain and or control the animal;
7.4. she failed to warn the public and specifically the minor of any danger and/ or potential
danger that the animal posed which could cause personal injury;
7.5. she failed to remove the animal when such danger and / or potential danger to the public
and specifically the minor, became evident;
7.6. she failed to avoid the incident when with the exercise of reasonable care, she could and
8. As a result of the incident the minor sustained the following injuries:
8.1. Multiple bite wounds on the lateral aspect of the left leg;
8.2. Nerve damage to the left leg.
9. The precise nature and extent of the aforesaid injuries sustained by the minor appear from the
medico-legal report compiled by Professor O.Tapelic, Orthopeadic Surgeon dated 7th August
2016, a copy of which is annexed hereto as annexure “A”;
10. As a result of the injuries sustained, the minor underwent medical treatment, was disabled,
suffered pain and a loss of amenities of life, the particulars of which are:
10.1. The minor was admitted to Medicross Clinic for treatment;
10.2. The minor underwent examination by a doctor in causality and thereafter referred for
X-rays;
10.3. The minor underwent physiotherapy;
10.4. The minor endured pain and suffering and will continue to do so in future;
10.5. The minor suffered a loss of amenities of life and will continue to do so in future;
10.6. The minor will require future medical treatment to alleviate pain, including surgery /
hospitalisation, physiotherapy and conservative treatment consisting of analgesics and
anti-inflammatories (“the future medical treatment”):
10.7. The minor sustained emotional shock and trauma.
11. The Plaintiff has a legal duty to support the minor.
12. As a result of the aforesaid injuries, the Plaintiff has suffered damages in the amount of
R30 000,00 (Thirty Thousand Rand) calculated as follows:
12.1. Past hospital and medical expenses;
The calculation of which is set out in annexure “D” hereto. R10 000,00
12.2. Estimated costs of the future medical treatment;
The amount claimed hereunder is an estimate of the future medical treatment the minor will have to
undergo, including, but not limited to, the following:
Conservative treatment of the minor’s various soft tissue injuries including consultations with a
general practitioner and/ or neurosurgeon and/ or a chiropractor, analgesics, anti-inflammatories,
muscle relaxants, physiotherapy / biokinetics and hospitalization for traction, X-rays, MRI and CT
scans.
Costs of surgery including but not limited to, the surgeon’s fee, theatre time, hospitalization, pre-
surgical investigations such as X-rays and MRI scans and post-surgical rehabilitation. R20 000,00
TOTAL R30 000,00
13. As a result of the aforesaid injuries, the minor has suffered damages in the amount of
R200 000, 00 (Two Hundred Thousand Rand) calculated as follows:
13.1. General damages:
©LSSA 255
General damages in respect of pain and suffering, discomfort, loss of amenities of life, disfigurement
and emotional shock and trauma. The amount claimed is a globular sum as it is not practicable to
apportion the specified amounts to the various components thereof.
TOTAL: R200 000,00
GRAND TOTAL: R230 000,00
14. The abovementioned Honourable Court has the requisite jurisdiction to adjudicate the action
due to the fact that the whole cause of action arose within its jurisdiction.
15. In the premises the defendant is indebted to the plaintiff in her personal and representative
capacities in the amount of R230 000,00 (Two Hundred and Thirty Thousand Rand) / which
amount remains unpaid notwithstanding demand.
WHEREFORE the plaintiff claims for judgement against the Defendant for:
1. Payment of the sum of R230 000,00 ( Two Hundred and Thirty Thousand Rand);
2. Payment of interest on the aforesaid amounts at the rate of 10.25% per annum, calculated from
date of judgement to date of final payment;
3. Costs of suit to include VAT charges;
4. Further and/or alternative relief.
DATED AT JOHANNESBURG ON THIS THE 3rd DAY OF NOVEMBER 2016
_____________________________
[Signed: Attorney with particulars]
23.6.2 PLEA: TO AN ACTIO DE PAUPERIE BASED ON TRESPASS BY PLAINTIFF

1. Defendant pleads that, at the time the plaintiff was bitten by the defendant’s said dog, the
plaintiff had entered upon the defendant’s premises without any legal right to be thereon and
that the dog, a watchdog guarding the defendant’s house, thereupon bit the plaintiff.
2. Defendant accordingly denies that the dog acted contrary to the nature of its class.
23.6.3 PLEA: TO AN ACTIO DE PAUPERIE BASED ON VOLENTI NON FIT INIURIA,

ALTERNATIVELY NEGLIGENCE
1. Defendant pleads that the plaintiff was at all material times aware that the defendant kept a
fierce dog on his property and that such dog was liable to bite and injure persons who entered
upon such property, but, in spite of such knowledge, the plaintiff entered upon the property and
freely and voluntarily assumed the risk of injury.
2. Alternatively, the defendant pleads that the plaintiff, having the aforesaid knowledge, was
negligent in entering the defendant’s property and that any injuries sustained were occasioned
by this said negligence [furnish detail].
©LSSA 256
H. PRACTICE NOTES: PROFESSIONAL

NEGLIGENCE
24. PROFESSIONAL NEGLIGENCE: THE ATTORNEYS PROFESSION
24.1 WHAT IS PROFESSIONAL NEGLIGENCE?

“Professional negligence is the failure by an attorney to act with the competence reasonably expected
of ordinary members of the attorney’s profession. An attorney must be meticulous, accountable, he or
she must serve his client faithfully and diligently and must not be guilty of any unnecessary delay.
He or she must once he or she has undertaken the client’s case, not abandon it without lawful reason
or excuse. An attorney who fails to explain his or her precise instructions and lays possum invites
an adverse inference against him or herself. Where a client’s claim prescribes under his or her watch,
he or she is guilty of a breach of his or her mandate and duty to his or her client by his or her failure
to present countervailing evidence that his or her mandate and instructions were circumscribed and
not open ended.
An attorney’s liability arises out of contract and his or her exact duty towards his or her client
depends on what he or she is employed to do. In the performance of his or her duty or mandate, an
attorney holds himself or herself out to his or her clients as possessing the adequate skill, knowledge
and learning for the purpose of conducting all business that he or she undertakes. If, therefore, he or
she causes loss or damage to his or her client owing to a want of such knowledge as he or she ought
to possess, or the want of such care he or she ought to exercise, he or she is guilty of negligence giving
rise to an action for damages by his or her client against him or her.” (Ramonyai v L P Molope Attor-
neys (2010/29310) [2014] ZAGPJHC 65 (27 February 2014) at para 16.)
An attorney is liable for the consequence of gross negligence if he or she displays a lack of reason-
able skill and diligence in the performance of his or her duties in matters within his or her field of
practise, expertise or knowledge.
24.2 LIABILITY ARISES OUT OF CONTRACT

An attorney’s liability arises out of contract (location conductio operis / mandatum) and his or her
exact duty towards his or her client depends on what he or she is employed to do. In the perfor-
mance of his or her duty or mandate, an attorney holds himself or herself out to his or her clients as
possessing the adequate skill, knowledge and learning for the purpose of conducting all business that
he or she undertakes. If, therefore, he or she causes loss or damage to his or her client owing to a lack
of such knowledge as he or she ought to possess, or the want of such care he or she ought to exercise,
he or she is guilty of negligence giving rise to an action for damages by his or her client against him
or her. (See Charlesworth on Negligence, 4th ed. paras. 1032-42; Clark and Another v Smith (1964)
2 All E.R. 835; Bagot v Stevens Scanlan & Co (1984) 3 All E.R. 577; Honey & Blanckenberg v Law
1966 (2) SA 43 (R) at p 46; See also Halsbury’s Law of England, 3rd ed. Vol 36, para 135.)
24.3 IN WHAT CIRCUMSTANCES COULD PROFESSIONAL NEGLIGENCE ARISE?
24.3.1 SOME EXAMPLES (THIS IS NOT A CLOSED LIST):

• Allowing a matter to prescribe whilst in the care of the attorney;
• Failure to take proper instructions;
• Failure to act on client’s lawful instructions timeously or at all;
• Failure to apply the required skill and knowledge required to execute a particular mandate /
instruction;
©LSSA 257
• Failing to advise a client appropriately upon receipt of an offer of settlement. That is, allowing
a client to accept an offer which is lower than the actual value due to your client or not recom-
mending a reasonable offer;
• failing to obtain opinions from appropriate expert witnesses, the lack of which impacts on the
assessment of the value of your clients claim;
• Failing to claim one or more category of damages which client is entitled to. For example, failing to
claim future medical expenses when experts have expressed the opinion that such will be required
by your client as a result of the injuries/damages sustained.
24.3.2 CLIENT’S CLAIM PRESCRIBED: ATTORNEY BREACHED DUTY OF CARE

There is no defence to a claim of negligence where an attorney delayed in issuing summons and if he
or she did so after the claim had prescribed; he or she is guilty of the breach of a duty of care in which
the plaintiff’s damages loss was foreseeable.
See Mazibuko v Singer 1079 (3) SA 258 (W); Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A);
Mlenzana v Goodrick and Franklin Inc 2012 (2) SA 433 (FB).
24.3.3 PLAINTIFF BEARS THE ONUS

The plaintiff bears the onus to show that the defendant is liable for the damages she has suffered
as a consequence of the defendant’s breach of his contractual mandate by negligently allowing her
claim to become prescribed. The plaintiff must establish not only that her damages were caused by
the defendant’s breach of duty pursuant to such contract but also that the breach of such duty was
reasonably foreseeable for liability to result. See Thullo v Road Accident Fund 2011 (5) SA 446 (GSJ);
Hatting v Ngake 1966 (1) SA 64 (O); Wilsher v East Essex Area Health Authority [1987] UKHL 11;
[1988] AC 1074; Malyon Lawrence v Messer & Co [1968] 2 Lloyds Rep 539.
In S v Mokgethi en Andere 1990 (1) SA 32 (A) the court held: “there is no single and general criterion
for legal causation applicable in all instances. A flexible approach is accordingly suggested. The basic
question is whether there is a close enough relationship between the wrongdoer’s conduct and its
consequences to be imputable to the wrongdoer having regard to policy considerations, reasonable-
ness, fairness and justice.”
24.3.4 ATTORNEY CANNOT RELY ON CLIENT TO GATHER NECESSARY INFORMATION

Mlenzana v Goodrick & Franklin Inc. 2012 (2) SA 433 (FB)
The court held that:
Attorneys should make every reasonable effort to obtain the information required for MVA claims, and
failure to do so may constitute actionable negligence. They cannot rely on their clients to gather the
information needed, and must, if required, leave the comfort of their offices to do fieldwork to safe-
guard their clients’ interests in this regard. They must also consider the socio economic circumstances
and education of the clients when communicating with them, and cannot rely on the postal service
when the client in question lives in an informal settlement. Attorneys who find themselves out of their
depth should consult more experienced colleagues instead of throwing in the towel.
An attorney who allows an MVA claim to prescribe in circumstances in which she had failed not
only to appreciate that her client had given her sufficient information to launch an initial claim to
avoid prescription, but also to exercise the required skill, and diligence in obtaining the information
she thought she needed, would be guilty of professional negligence, and her firm would be liable to
the client in the amount that would, but for prescription, have been paid out by the RAF.
In the above matter, the plaintiff sued the defendant for damages in the amount of R493,574.00
on the basis of the defendant’s alleged negligence in failing to timeously lodge her claim for loss of
support and funeral expenses against the Road Accident Fund (RAF).
The plaintiff alleged that her damages arose out of a contract of mandate she concluded with the
defendant to lodge her claim timeously but that it failed to carry out its mandate resulting in the
©LSSA 258
plaintiff’s claim prescribing. The defendant denied that its failure to lodge the claim in time was as
a result of negligence; it pleaded that such failure was the result of the plaintiff’s failure to provide
certain information and to sign certain documents required to lodge the claim.
The court held that the plaintiff’s cause of action against the defendant depended on the following:
whether the plaintiff’s claim would have been successful had it been lodged in time, whether a contract
of mandate was in fact concluded, that such contract was breached and that the breach amounted to
professional negligence on the part of the defendant.
Having assessed the facts and evidence, the court determined that, on a balance of probabilities,
the plaintiff’s claim would have been successful had it been lodged with the RAF. With regards to
the contract of mandate, the court found that it was common cause that the defendant had been
mandated to undertake the plaintiff’s case against the RAF.
In terms of the contract of mandate, at the very least, the defendant had to do all that was neces-
sary and practicable to ensure that the claim form was duly completed and delivered to the RAF before
the prescription of the 3 year period within which the claim could be lodged. The defendant’s failure to
lodge the claim was also not in dispute. Thus all that had to be established was whether the defend-
ant’s failure to lodge the claim was as a result of negligence.

Prescription only starts to run when the injured, who was a minor when her mother instructed
the attorney to settle her claim, realises later in her adult life that the claim was settled too low.
Macleod v Kweyiya (365/12) [2013] ZASCA 28. On 30 January 1988, at four years old, the respondent
sustained injuries and was rendered a paraplegic in a motor vehicle accident between two motor
vehicles. In May 1997, the claim was settled on her mother’s instructions by the attorney, and on his
advice, at an amount of R99 500, which when added to the R25 000 amounted to R124 500.
At the time of the settlement the respondent was approximately 13 years old, and almost 14
years old at the time the accounting was made to her mother. On 29 April 2005, she reached
the majority age of 21 years. After a dispute between herself and her mother, she became aware
of the terms of the settlement agreement on 19 April 2006. On 8 April 2009, when she was
almost 25 years old and 11 years after the appellant had accounted to her mother, she sued
the attorney for negligently, in breach of contract and duty of care under-settling her claim.
The court held that prescription only began to run on 19 April 2006. The respondent does not need
to explain the delays until 18 April 2009, as such period was within the three-year prescription period
that started to run on 19 April 2006.
24.4 ATTORNEY’S ETHICAL DUTIES

Great skill and care is expected from an attorney. The test for negligence is: “Did the attorney act with
the care and diligence of an attorney with / of average experience.” An attorney will not be liable if
he has made a judgement error - but only if he /she has exercised his discretion in a reasonable way.
Ebersohn v Prokureursorde van Transvaal 1996 (1) SA 661 (T).
24.4.1 The “Rules for the Attorneys Profession” that came into
operation for all Law Societies on 1 March 2016, in rules 39 and 40
thereof require the following from attorneys:
39. Members shall comply with the rules of professional conduct set out below. A member who
fails to so comply shall be guilty of unprofessional and/or dishonourable and/or unworthy
conduct.
40. Members shall at all times:
40.1 maintain the highest standards of honesty and integrity;
40.2 treat the interests of their clients as paramount, provided that their conduct shall be
subject always to:
40.2.1 their duty to the court;
©LSSA 259
40.2.2 the interests of justice;
40.2.3 the observation of the law;
40.2.4 the maintenance of the ethical standards prescribed by these rules and generally
recognised by the profession;
40.3 honour any undertaking given in the course of their practice, unless prohibited by law;
40.4 refrain from doing anything in a manner prohibited by law or by the code of conduct of
the profession which places or could place them in a position in which a client’s interests
conflict with their own or those of other clients;
40.5 maintain confidentiality regarding the affairs of present or former clients, unless other-
wise required by law;
40.6 respect the freedom of clients to be represented by the lawyer of their choice;
40.7 account faithfully, accurately and timeously for any of their clients’ money which comes
into their possession, keep such money separate from their own money, and retain such
money for so long only as is strictly necessary;
40.8 retain the independence necessary to enable them to give their clients unbiased advice;
40.9 advise their clients at the earliest possible opportunity on the likely success of such
clients’ cases and not generate unnecessary work, nor involve their clients in unneces-
sary expense;
40.10 use their best efforts to carry out work in a competent and timely manner and not take on
work which they do not reasonably believe they will be able to carry out in that manner;
40.11 be entitled to a reasonable fee for their work, provided that no member shall fail or refuse
to carry out, or continue, a mandate on the ground of non-payment of fees and disburse-
ments (or the provision of advance cover therefor) if demand for such payment or provi-
sion is made at an unreasonable time or in an unreasonable manner;
40.12 remain reasonably abreast of developments in the law and legal practice in the fields in
which they practise;
40.13 behave towards their colleagues, including any legal practitioner from a foreign jurisdic-
tion, with integrity, fairness and respect;
40.14 refrain from doing anything which could or might bring the attorneys’ profession into
disrepute.
24.4.2 Ethical duties of an Attorney who realises he /she may have been
negligent
• Advise your own client to see another attorney
• You do not have to admit negligence. (Remember your professional indemnity policy has terms
and conditions).
• The attorney must tell the client factual truth.
• The file will have to be given to the client / his new attorney and the client may not be prejudiced.
• The attorney must keep clear copies of the file and all documents.
24.4.3 The role of the Attorneys Fidelity Fund

In terms of the Attorneys Act, 1979, the primary purpose of the Attorneys Fidelity Fund is to reim-
burse members of the public who may suffer monetary loss as a result of the theft of money or prop-
erty entrusted to an attorney
• in the course of his/her practice as such, or
• where an attorney acts as executor or administrator in a deceased estate, or
• as a trustee in an insolvent estate, or in any similar capacity; or
• pending registration of the transfer of immovable property, or settlements in personal injury claims.
©LSSA 260
It is of the utmost importance to note that the Fund does not reimburse loss suffered as a result
of negligence by an attorney in the conduct of his/her practice. Business transactions are also not
covered, or money handed to an attorney for investment purposes, nor loans to the attorney. Certain
relationships such as family, business or partnership associations will preclude a person from claiming
against the Fund.
24.4.4 The Attorneys Insurance Indemnity Fund NPC (AIIF)

The Attorneys Insurance Indemnity Fund NPC (AIIF) is a non-profit, short-term insurance company,
duly incorporated under the company laws of the Republic of South Africa and subject to the Short
Term Insurance Act 53 of 1998. In 1993, the AIIF was established by the Attorneys Fidelity Fund (AFF)
in terms of the powers conferred on it to provide professional indemnity insurance to legal practi-
tioners, by sections 40A and 40B of the Attorneys Act 53 of 1979. (S77 of the Legal Practice Act 28
of 2014 confers similar powers to the AFF’s successor in title, the Legal Practitioners’ Fidelity Fund
(LPFF).
The AIIF’s primary purpose is to provide all legal practitioners who are obliged to be in posses-
sion of a Fidelity Fund certificate, with a primary level of professional indemnity insurance. It only
provides for a basic level of professional indemnity insurance for attorneys. It does not provide full
cover to attorneys and the excesses that a payable are high.
©LSSA 261
I. PRACTICE NOTES: CONTINGENCY FEES
AGREEMENTS
25. CONTINGENCY FEES AGREEMENTS
25.1 THE BACKGROUND TO CONTINGENCY FEES

Contingency fees imply that only if a case is successful will fees be payable, possibly on a higher rate
than normal and from a part of the capital amount recovered in the case. The Contingency Fees Act,
66 of 1997 (the “CFA”) came into effect on 23 April 1999. The CFA regulates all contingency fees agree-
ments. Only a specific prescribed agreement that is included in the Regulations to the Act is allowed.
In terms of the common law contingency fees agreements were unlawful and never allowed as
pacta de quota litis. In English law such agreements were champertous (an agreement to finance liti-
gation) and therefore unlawful in terms of their champerty laws. The CFA legalized such agreements
and it supersedes any other law and the common law. The CFA regulates contingency fees very strictly.
Since the promulgation of the CFA only a specific prescribed agreement that is included in the Regu-
lations to the Act is allowed.
See Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (6) SA
66 SCA). The development of our law on the subject followed English law developments. As such the
CFA now recognizes contingency fees agreements are now allowed and recognised as legal and valid.
These agreements will however be supervised strictly by the courts to protect the rights of clients in
litigation.
Contingency fees agreements in personal injury claims can be a useful tool to assist clients who
do not have the money to fund good claims and also reward the attorney that is willing to carry the
risk on behalf of the client.
25.2 FORMALITIES THAT MUST BE COMPLIED WITH

• The agreement must be in writing and the prescribed agreement is in the Regulations to the Act.
• The agreement must state the following:
The proceedings to which the agreement relates must be described in some detail;
That, before the agreement was entered into, the client:
(i). was advised of any other ways of financing the litigation and of their respective implications;
(ii). was informed of the normal rule that in the event of his, her or it being unsuccessful in the
proceedings, he, she or it may be liable to pay the taxed party and party costs of his, her or its
opponent in the proceedings;
(iii). was informed that he, she or it will also be liable to pay the success fee in the event of success;
and
(iv). understood the meaning of the agreement;
* Fees are only recoverable if the case is finalised successfully.
* The parties must record what will be regarded by the parties to the agreement as constituting
success or partial success;
* The circumstances in which the attorney’s fees and disbursements relating to the matter are
payable;
* The amount which will be due, and the consequences which will follow, in the event of the
partial success in the proceedings, and in the event of the premature termination for any
reason of the agreement;
* Either the amounts payable or the method to be used in calculating the amounts payable;
* The manner in which disbursements made or incurred by the attorney on behalf of the client
©LSSA 262
shall be dealt with;

* Criminal Law and Family Law cases are excluded and no contingency fees agreement may
be entered into;
* The normal attorney and own client tariff is placed on record and the higher tariff is also
recorded in writing;
* This normal fee would be the normal attorney and own client fee that could be taxed in the
absence of a contingency fee agreement;
* A higher fee may not exceed the attorney’s normal attorney and own client fees by 100%.
* A higher fee may not exceed more than 25% of the total capital (excluding costs) obtained
with the claim;
* The agreement must be signed by the attorneys and the client, and if an advocate is used
who wants to be a party to the agreement, such must also sign the agreement;
* A copy of the agreement must be delivered to the client on the date of signing;
* The client will have a period of 14 days, calculated from the date of the agreement, during
which he, she or it will have the right to withdraw from the agreement by giving notice to
the attorney in writing: Provided that in the event of withdrawal the attorney will be entitled
to fees and disbursements in respect of any necessary or essential work done to protect the
interests of the client during such period, calculated on an attorney and client basis;
* The agreement must be registered by the attorney with the Law Society.
25.3 FORMALITIES THAT HAVE TO BE COMPLIED WITH ON SETTLEMENT OF THE

PROCEEDINGS
The Act provides that when an offer of settlement is made to the client who has entered into a contin-
gency fees agreement, the offer of settlement may be accepted only after the attorney has filed an
affidavit with the court, if the matter is before court, or has filed an affidavit with the relevant law
society, if the matter is not before court in terms of s 4(1) of the CFA.
The affidavit by the attorney must state the following:
• The full terms of the settlement;
• An estimate of the amount or other relief that may be obtained by taking the matter to trial;
• An estimate of the chances of success or failure at trial;
• An outline of the attorney’s fees if the matter is settled as compared to taking the matter to trial;
• The reasons why the settlement is recommended;
• That the matters referred to in the above bullet points were explained to the client, and the steps
taken to ensure that the client understands the explanation; and
• That the attorney was informed by the client that he or she understands and accepts the terms of
the settlement.
• The affidavit by the attorney must be accompanied by an affidavit by the client in which the client
must state the following:
* That he or she was notified in writing of the terms of the settlement;
* That the terms of the settlement were explained to him or her, and that he or she under-
stands and agrees to them; and
* His or her attitude to the settlement.
• Any settlement made where a contingency fees agreement has been entered into, must be made an
order of court, if the matter was before court.
25.4 CASE LAW: THE COMMON LAW CONTINGENCY FEES AGREEMENT IS ILLEGAL
Tjatji and others v RAF 2013 (2) SA 632 (GSJ). A contingency fees agreement that does not comply
with the Act is invalid.
©LSSA 263
Contingency fees act, 66 of 1997.
de la Guerre vs Bobroff NGHC 22645/2011 (13 February 2013). The court finds that Common law
Contingency Fee Agreements are illegal.
SAAPIL v Minister Of Justice & Constitutional Development & RAF 2013 (2) SA 583 (GNP). The
Contingency Fees Act is found not to be unconstitutional.
(Both the De la Guerre and SAAPIL cases were taken on appeal to a full bench. Both appeals were
dismissed.
The attorneys and SAAPIL then petitioned the SCA for special leave to appeal to the SCA. The petitions
were dismissed.)
Ronald Bobroff & Partners Inc v De La Guerre; South African Association of Personal Injury
Lawyers v Minister of Justice and Constitutional Development (CCT 122/13 , CCT 123/13) [2014]
ZACC 2; 2014 (3) SA 134 (CC); 2014 (4) BCLR 430 (CC) (20 February 2014). An application for leave to
appeal to the Constitutional Court against the orders of the North Gauteng High Court, Pretoria was
lodged by the attorneys and SAAPIL. The applications for leave to appeal by the attorneys and SAAPIL
respectively in both matters were dismissed with costs, including, where applicable, the costs of two
counsel.
Bitter NO obo De Pontes v Ronald Bobroff & Partners Inc and Another 2014 (6) SA 384 (GJ). Their
client having been rendered quadriplegic in a car crash, and the attorneys sought to retain a large
contingency fee amount as security for attorney-and-client costs. The court confirmed that the attor-
neys would likely be only entitled to a fraction of the sum retained, and they were ordered to submit
an itemised bill of costs and repay the difference between the amount retain and the amount taxed
on the bill of costs.
Mofokeng v Road Accident Fund, Makhuvele v Road Accident Fund, Mokatse v
Road Accident Fund, Komme v Road Accident Fund [2012] ZAGPJHC 150. It is trite
law that a contingency fee agreement which does not comply with the CFA is invalid.
The most important and instructive case explaining the Contingency Fees Act is the case of Masango
below.
Masango and Another v Road Accident Fund and Others (2012/21359) [2016] ZAGPJHC 227 (31
August 2016).
The following aspects were addressed and clarified by Deputy Judge President Mojapelo:
• There are two kinds of contingency fee agreements: The Act provides for two kinds of contin-
gency fee agreements. The first is a “no win, no fee” agreement, and the second is an agree-
ment whereby the legal practitioner may charge fees higher than the normal fee if the client is
successful. The higher fee is also referred to as the “success fee”. Only the second type of agree-
ment is subject to the statutory caps. A higher fee may therefore not exceed the attorney’s normal
attorney and own client fees by 100% and a higher fee may not exceed more than 25% of the total
capital obtained with the claim.
• Normal fees: This exclude any fees that an attorney may be entitled to recover from his client
by virtue of any special arrangements made with the client or in terms of some specific statutory
provision applicable to a particular case or cases. Normal fees in litigation are fees which are
recoverable by an attorney from his or her own client and which would be allowable on taxation
of an attorney and client bill by the taxing master outside any special arrangements. The legal
practitioner (the attorney in this case) and the client are required by sec 2(2) of the CFA to set out
the normal fees in the contingency agreement concluded.
• A success fee: This is the normal fee which has been increased by a pre-agreed percentage. There
is no other way of increasing the normal fee to the increased or success fee other than through a
percentage.
• The first cap: The normal fee may be increased by up to 100% to reach the success fee. The success
fee may thus be and is often double the normal fee. (It may be lower than double the normal fee,
but never higher.)
• The second cap – only on claims sounding in money: The second cap on the increase that the
©LSSA 264
attorney may charge is introduced as a proviso to section 2(2) and applies only in claims sounding
in money. It does not apply to other claims litigated through a contingency agreement. In claims
sounding in money the total of the success fee shall not exceed 25% of the total amount awarded
or obtained by client (excluding costs).
• 25% is a cap, not a fee. The attorney may therefore nót simply charge 25% of the client’s
capital as his fee: There is no basis for the practitioner to charge 25% of client’s capital as his or
her fees. The 25% of the client’s capital is introduced only as a cap: the attorney charges a success
fee which shall not exceed 25% of the client’s capital award. The practice of charging 25% of the
client’s capital is illegal.
• VAT cannot be charged / levied on the cap: Because the 25% is a cap and not a fee, VAT cannot be
levied on it. The cap is inclusive of VAT on the attorney’s fee. To charge VAT on the cap renders the
agreement invalid as it does not comply with a material aspect of the Act. In terms of the Income
Tax Act the consumer pays a “price” (fee) which is inclusive of VAT. The supplier (attorney) then
pays to SARS the difference between output tax and input tax where output tax is greater than
input tax. VAT is not a “cost” which the attorney incurs for the client for purposes of s 2(2) of the
Act, and therefore cannot be “excluded” from the cap. The 25% limit is calculated on the capital
amount only and nót on the client’s capital plus costs (or disbursements).
• The Act specifies what must be contained in the agreement - s 3(3): the provisions of all the
sub-paragraphs have to be included. The Act is very specific as to the contents and all matters
prescribed are inclusive, that is, all the matters or provisions stated in paragraphs (a) up to (i) of
the subsection have to be included in the agreement. Similarly the provisions in sub-paragraphs
(i) to (iv) of paragraph (a) are all to be included. It is not some provisions or the others. It is all
prescribed provisions which have to be in the agreement. The attorneys are not at liberty to draw a
contingency fees agreement in any form as they like. The agreement has to be in accordance with
the provisions of the Act and in the form prescribed by the Minister.
The agreement may nót provide for an alternative fees agreement in the event that the main
agreement is found to be invalid: Such an agreement is not authorised under the CFA. The alter-
native agreement in itself is based on an inflated fee because the quoted fee is R 2 000.00 per hour,
regardless of whether the work is performed by an attorney or any other staff member. There is no
basis in law for services of people who are not legal practitioners to be charged for as if they were
qualified legal practitioners. The provision is unreasonable and departs from an important principle
that applies to the professional fees of attorneys described as “the age old approach of reasonable-
ness assessing chargeable fees”.
25.5 THE PRESCRIBED CONTINGENCY FEES AGREEMENT

SUBORDINATE LEGISLATION IN TERMS OF THE
CONTINGENCY FEES ACT, 1997 (ACT 66 OF 1997)
(a) Section 1(vi)(b) and 5: Determination of Professional Controlling Body and designation of
a body published in Government Notice No. R. 546 of 23 April 1999 (Government Gazette No.
20009) and amended by Government Notice No. R. 1110 of 3 November 2000 (Government
Gazette No. 21719)
“I, Abdulah Mohamed Omar, Minister of Justice -
(a) hereby determine in terms of section 1 (vi)(b) of the Contingency Fees Act, 1997 (Act No. 66
of 1997), and for purposes of the said Act, as a professional controlling body in respect of an
advocate, the bodies in the Schedule of which such an advocate is a member; and
(b) hereby designate in terms of section 5 of the said Act and for purposes of the said section, in the
case of a legal practitioner who is not a member of a professional controlling body, the bodies
in the Schedule in the area in which such a legal practitioner practise.
A. M. OMAR,
Minister of Justice
©LSSA 265
SCHEDULE
Cape Bar Council
Eastern Cape Society of Advocates 2 Northern Cape Society of Advocates
Society of Advocates (Free State Division)
Society of Advocates of Natal
Society of Advocates of Natal (Pietermaritzburg Bar)
Society of Advocates of South Africa (Witwatersrand Division)
Society of Advocates (Transvaal Provincial Division)
Society of Advocates of Ciskei
North West Bar Association
Society of Advocates of Transkei
Independent Association of Advocates of South Africa”
(b) Section 3(1)(a): Contingency Fees Agreement in terms of the Contingency Fees Act, 1997
(Act No. 66 of 1997) published in Government Notice No. R. 547 of 23 April 1999 (Government
Gazette No. 20009)
“It is hereby notified that the Minister of Justice has, under section 3(1)(a) of the Contingency Fees
Act, 1997 (Act No. 66 of 1997), prescribed the form of a contingency fees agreement, as set out in the
Schedule.
SCHEDULE
CONTINGENCY FEES AGREEMENT IN TERMS OF THE CONTINGENCY FEES ACT, 1997
(ACT NO. 66 OF 1997)1
Done and entered into between……………………………………………………………………………………
………………………………………………………………………………
(*full name and address/name of business, full name of authorised representative and address)
hereinafter called “the Client”, and
…………………………………………………………………………………………………………………………
…………………………………………
(full name of attorney, name of practice and address)
hereinafter called “the Attorney”, in terms of which the Client shall pay the fees agreed to herein to
the Attorney for services rendered2, if the Client is successful in such proceedings to the extent set
out in this agreement.
1. It is recorded that in the opinion of the Attorney there are reasonable prospects that the Client
may be successful in the proceedings mentioned hereunder and the Attorney therefore under-
takes to recover no fees from the Client unless -
1.1 the Client is successful in such proceedings; or
1.2 the Attorney, as set out hereunder, becomes entitled to a fee in the event of partial success
in such proceedings or in the event. of the premature termination of this agreement.
* Delete whichever is not applicable
** Delete if not applicable
2. It is further recorded that, before the signing of this agreement and in terms of section 3(3) of
the Contingency Fees Act, 1997 (Act No. 66 of 1997), the Client was -
2.1 advised of any other ways of financing the litigation and of their respective implications,
namely ……………………………………….;
2.2 informed of the normal rule that in the event of the Client being unsuccessful in the
proceedings, he/she/it may be liable to pay the taxed party and party costs of his/her/its
opponent in the proceedings; and
©LSSA 266
2.3 informed that he/she/it will be liable to pay the success fee in the event of success, by the
Attorney.
3. The Client acknowledges that he/she/it gave a written power of attorney to the Attorney to -
** conduct proceedings in/before the ……………………….(court of law/tribunal/functionary) having
the power of a court of law to …………………………………………………………………………,
on his/her/its behalf.
** conduct proceedings in/before the ……………………….(court of law/tribunal/functionary) having
the power to………………………… on his/her/its behalf.
** render professional services, namely ………………………………….., to him/her/it.
** conduct arbitration proceedings in/before the ...................................………………… for the purpose
of …………………………………………, on his/her/its behalf.
Nota bene: No contingency fees agreement may be entered into in respect of professional services
to be rendered in any criminal proceedings or any proceedings in respect of any family law matter.3
4. The parties agree that the Client -
4.1 shall be deemed to be successful in the aforementioned proceedings if……………………
…………………………………………………………………………………………; and
4.2 shall be deemed to be partially successful in the aforementioned proceedings
if..…………………………………………………………
5. The Attorney hereby warrants that the normal fees on an attorney and own client basis to
perform work in connection with the aforementioned proceedings are calculated on the following
basis: ………………………………………………….
(set out hourly, daily and/or applicable rates)
6. The parties agree that if the Client is successful in the aforementioned proceedings -
** an amount of R ……………………… shall be payable to the Attorney;
** an amount shall be payable to the Attorney, calculated according to the following method:
…………………………………………………….
Nota bene: If the success fee is higher than the Attorney’s normal fees, such higher fee may -
• not exceed the Attorney’s normal fees by more than 100 per cent; and
• in the case of a claim sounding in money, not exceed 25 per cent of the total amount awarded or
any amount obtained by the Client in consequence of the proceedings.
For purposes of calculating the higher fee, costs are not included.
7. The parties agree that -
7.1 if the Client is partially successful in the aforementioned proceedings -
7.1.1 the Client-
** shall owe the Attorney an amount of R …………………….. ; or
** shall owe the Attorney an amount to be calculated according to the following method:
....…………………..………………………………………………………....; and
7.1.2 the following consequences will follow in terms of this agree-
ment:……………………………………….; and
7.2 in the event of the premature termination of this agreement for any reason -
7.2.1 the Client-
** shall owe the Attorney an amount of R ………………..; or
** shall owe the Attorney an amount to be calculated according to the following method
……………………………………………………….; and
©LSSA 267
7.2.2 the following consequences will follow in terms of this agreement:
………………………………………
8. Disbursements by the Attorney relating to the matter -
** made on behalf of the Client shall be dealt with in the following manner:
……………………………………………………………………and/or
** incurred on behalf of the Client shall be dealt with in the following manner:
…………………………………………………………………………
9.1 The Client has a period of 14 days, calculated from the date of signing this agreement,
during which he/she/it will have the right to withdraw from the agreement by giving
notice to the Attorney in writing.
9.2 The Attorney shall, in the event of withdrawal by the Client, be entitled to fees and
disbursements in respect of any necessary or essential work done to protect the interests
of the Client during such period, calculated on an attorney and client basis.
10. If the Client feels aggrieved by any provision of this agreement or any fees chargeable in terms
of this agreement, the agreement or the fees may be referred for review to the Law Society of
which the Attorney is a member and, if an advocate has been appointed, also to the Bar Council
‘in the area in which the advocate practises. The professional controlling body concerned may
set aside any provision of this agreement or any fees claimable in terms of this agreement if in
its opinion such provision or fees are unreasonable or unjust.
11.1 Any amendment or other agreements ancillary to this agreement (including any amend-
ments to such agreements) shall be in writing and comply with the requirements laid
down in the Contingency Fees Act, 1997 (Act No. 66 of 1997).
11.2 A copy of any such amendment or other agreements ancillary to this agreement shall be
delivered to the Client upon the date on which such amendment or ancillary agreement is
signed.
**12. In the event of an advocate being appointed, the following shall be completed:
12.1 On this ……………… day of ……………….19.., the Attorney briefed
………………………………………………………………………….………………………………
(full names and address of advocate) (hereinafter called “the Advocate”) to act as advo-
cate in the proceedings mentioned in paragraph 3 above.
12.2 By his/her signature hereto the Advocate warrants that in his/her opinion there are
reasonable prospects that the Client may be successful in such proceedings and that he/
she accepts the brief on the understanding that he/she will be entitled to the payment of
fees only if the Client is successful or partially successful in the proceedings as agreed
upon in paragraph 4 above and in the event of the premature termination for any reason
of this agreement.
12.3 The parties agree that -
(a) if the Client is successful in the aforementioned proceedings -
** an amount of R ……………………. shall be payable to the Attorney as advocates’ fees;
or
** an amount shall be payable to the Attorney as advocates’ fees, to be calculated
according to the following method:………………………………………………….…………
…………………………………….; or
(b) if the Client is partially successful in the aforementioned proceedings -
** an amount of R ………….shall be payable to the Attorney as advocates’ fees; or
©LSSA 268
** an amount shall be payable to the Attorney as advocates’ fees, to be calculated according

to the following method: ………………………………......................
…………………………………………………………;or
(c) in the event of the premature termination of this agreement for any reason -
** an amount of R …………….shall be payable to the Attorney as advocates’ fees; or
** an amount shall be payable to the Attorney as advocates’ fees, to be calculated according
to the following method:…………………………………………………….
…………………………………………………………….
THE CLIENT HEREBY WARRANTS THAT HE/SHE/IT UNDERSTANDS THE MEANING AND
PURPOSE OF THIS AGREEMENT.
Signed at …………………… this …………………day of ……………….19.. .4
…………………………………………
(Signature of the *Client / authorised representative of juristic person)
………………………………….
(Signature of the Attorney) **.......................
(Signature of the Advocate) ..........................

1. A copy of the contingency fees agreement must be delivered to the Client on the date on which
the agreement is signed.
(Section 3(4) of the Contingency Fees Act, 1997 (Act No. 66 of 1997))
2. In terms of section 2 of the Contingency Fees Act, 1997, a legal practitioner is, when he/she
enters into a contingency fees agreement with a client, not entitled to any fees for services
rendered in respect of any proceedings unless the client is successful in such proceedings to the
extent set out in such agreement.
The agreement may stipulate that the legal practitioner shall be entitled to fees equal to or higher than
his/her normal fees.Fees which are higher than the normal fees of the legal practitioner concerned (here-
inafter referred to as the “success fee”) may not exceed such normal fees by more than 100 per cent.
In the case of claims sounding in money, the total of the success fee payable by the client to the legal
practitioner, may not exceed 25 per cent of the total amount awarded to or any amount obtained by
the client in consequence of the proceedings concerned, which amount may not, for purposes of calcu-
lating such excess, include any costs.
3. A contingency fees agreement may be entered into in respect of -
(a) any proceedings in or before any court of law or any tribunal or functionary having the
powers of a court of law;.
(b) any proceedings in or before any court of law or any tribunal or functionary having the
power to issue, grant or recommend the issuing of any licence, permit or other authorisa-
tion for the performance of any act or the carrying on of any business or other activity;
(c) any professional services rendered by the legal practitioner concerned: and
(d) any arbitration proceedings, but not in respect of any criminal proceedings or any proceed-
ings in respect of any family law matter.
(Section 2 of the Contingency Fees Act, 1997, read with section (1)(v))
4. A contingency fees agreement must be signed by the client concerned or, if the client is a juristic
person, by its duly authorised representative, and by the attorney representing such client.
Where an advocate is briefed, the contingency fees agreement must be countersigned by the
advocate, who will thereby become a party to the agreement. 13
(Section 3(2) of the Contingency Fees Act, 1997)”.
©LSSA 269
J. reference sources
TITLE AUTHORS ABBREVIA-
TION
MVA Handbook Newdigate, HJ/ Honey, Newdigate
DP
MVA Practice Honey, DP Honey
Quantum of Damages Corbett, MM et al Corbett
The Quantum of Damages in Bodily and Fatal Injury Christo Potgieter Potgieter
Cases. Quick Guide: Quantum Conversion Tables and Boberg, PQR Boberg
Medical Diagrams, 2016
The Law of Delict
Technique in Litigation Morris, E Morris
Amler’s Precedents of Pleadings Harms, LTC Amlers
Loss of Support Koch, RJ Koch
Derdepartyvergoeding Klopper, HB Klopper
PLT Practice manual 1999 (as revised) Van Wyk, F
RAF Newsletters RAF Legal Department
Quantum paper Jacobs, T
Merits paper Jacobs, T
Trilingual Legal Dictionary Hiemstra, Cronin
Encyclopaedia of Car, Grange Books Regency a) T Connolly
House Publishing Limited b) B Crichton
c) Z Harrison
d) K Henson
e) T Herridge
f) A Wilson
g) T Stuart-Jones
h) J Taylor
i) J Tipler
j) S Wade
k) C Maillard
MMF - The Practitioner’s Guide Daniels
Law of Third Party Compensation Klopper HB Klopper
René P Lion-Cachet
AIIF Risk Management Team
Articles published in De Rebus - Nicolette Koch and Prof HB Klopper
Articles published in the Potchefstroom Electronic Review - Prof L Steynberg
Articles published in the Stellenbosch Law Review - Naudé T
Articles published in the South African Law Journal - Naudé. T
American Medical Association - Robert D Rondinelli and others AMA Guides
A Guide to the Consumer Protection Act - van Eeden E
Guides to the Evaluation of Permanent Impairment
The South African Medical Journal - SAMJ Vol 103, No 10 (2013) - Dr HJ Edeling and others
©LSSA 270

Personal Injury Claims: Version 003 / Learning Resources Reg 017

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Personal Injury Claims

The syllabus is compiled by experts in practice.

Eddie Hanekom (chair);

Publish Date: 01/01/2020

Version 003 / Learning Resources Reg 017

This guide records the views of the drafter.

Alternative Dispute Resolution Insolvency Law Magistrate’s Court Practice

For more information:

A. AIM OF THE COURSE 1

C. PRACTICE NOTES: ROAD ACCIDENT FUND CLAIMS 7

4.9 LOCUS STANDI 27

8.3.9 A FOSTER PARENT’S LOCUS STANDI 64

16.5 FINALISATION OF CLAIM FORM AND “THIRD” CONSULTATION 118

D. PRACTICE NOTES: PUBLIC LIABILITY 216

20.3.5 EXAMPLE PLEADING: NEGLIGENCE AND DUTY OF CARE IN

E. PRACTICE NOTES: PASSENGER RAIL ASSOCIATION OF SOUTH

F. PRACTICE NOTES: UNLAWFUL ASSAULT AND ARREST 238

G. PRACTICE NOTES: ANIMALS 251

H. PRACTICE NOTES: PROFESSIONAL NEGLIGENCE 257

I. PRACTICE NOTES: CONTINGENCY FEES AGREEMENTS 262

J. REFERENCE SOURCES 270

A. AIM OF THE COURSE

The following aspects are covered:

We have also included chapters on:

PASSENGER RAIL ASSOCIATION OF SOUTH AFRICA (“PRASA”)

UNLAWFUL ASSAULT AND ARREST

CONTINGENCY FEES AGREEMENTS

C. PRACTICE NOTES: ROAD ACCIDENT FUND

1. 1 BACKGROUND TO THE current LEGISLATION

1.2 OVERVIEW OF THE CURRENT ACT AND REGULATIONS

The RAF Act

1.3 THE ORIGIN OF MOTOR VEHICLE ACCIDENT LEGISLATION

1.4 IMPORTANT TIME PERIODS: WHICH ACT TO APPLY

1.5 THOUGHTS ON HANDLING MVA CLAIMS

2.2 FORMATION OF THE ROAD ACCIDENT FUND (THE “raf”)

2.3 LIABILITY OF THE RAF

2.4.1 CLAIM FOR COMPENSATION LIES AGAINST FUND ONLY

Extended meaning as per the Act:

2.6.1 THE CATEGORIES OF PASSENGERS THAT EXISTED UNDER THE PRECEDING

The Court also found that:

Section 35(1) reads:

TWO GOLDEN RULES:

2.6.2 PRECEDING LEGISLATION: PASSENGERS CONVEYED WHILST RENDERING

2.7 CONSTITUTIONAL CHALLENGE TO LIMITED CLAIMS IN THE PRECEDING

The following order was made:

The written notification had to be accompanied by:

2.8 ESSENTIAL COMPONENTS IN THE PRECEDING LEGISLATION

2.8.1 LIABILITY OF THE RAF IS AND REMAIN FAULT BASED

2.9 LIABILITY WAS EXCLUDED IN CERTAIN CASES SECTION 19 PRECEDING

2.9.2 SECTION 19(b)(i)

2.9.3 SECTION 19(b)(ii) – HOUSEHOLD MEMBERS UNDER THE PRECEDING

2.9.4 HANDLING OF CLAIM

2.9.6 REFUSAL / FAILURE TO SUBMIT TO MEDICAL EXAMINATION

2.9.7 DISCLOSURE OF EVIDENCE TO THE RAF

2.10.1 SECTION 22: DUTY OF SUBMISSION OF INFORMATION TO RAF; AND THE

2.10.2 SECTION 25: RIGHT OF RECOURSE OF FUND

2.11 COSTS: PARTY-AND-PARTY PAID EVEN AFTER SETTLEMENT

2.12 INTEREST / OFFER OF SETTLEMENT SECTION 17(3) OF THE RAF ACT

2.13 UNDERTAKINGS FOR PAYMENT OF: FUTURE MEDICAL AND HOSPITAL

THERE WERE AND STILL ARE TWO TYPES OF UNDERTAKINGS:

2.13.1 SECTION 17(4)(a) UNDERTAKING:

2.13.2 SECTION 17(4)(b) UNDERTAKING:

2.14 INTERIM PAYMENT