On 27 November 2023, in the matter of Skhosana v Road Accident Fund (GJ) (unreported case no 58501/2021, 27-11-2023) (Hitchings AJ), the Road Accident Fund (RAF) who had failed to file its plea to the plaintiff’s particulars of claim timeously and was barred from so doing, had its State
Attorney attend court on the plaintiff’s application for judgment by default. The State Attorney informed the court from the bar that the RAF was in the process of bringing an application to uplift the bar to enable it to file a plea, which plea would be to the effect that the plaintiff had failed to comply with the provisions of s 24(1)(a) and (4) of the Road Accident Fund Act 56 of 1996 (the Act) read with Management Directive issued on 8 March 2021 and the Supplier Communication issued on 19 May 2021. As a result of the alleged failure to comply (details of which are not available in the written judgment) the plaintiff’s claim fell to be dismissed with costs.

No substantive application in support of these contents was filed.

Hitchings AJ drew the State Attorney’s attention to the contents of the recent full bench decision of the Gauteng Division of the High Court in Pretoria of Mautla and Others v Road Accident Fund and Others (GP) (unreported case no 29459/2021, 6-11-2023) (Opperman J, Millar J and Ally AJ) in which the very internal regulations now relied on by the RAF had been reviewed and set aside. This, notwithstanding, the State Attorney steadfastly maintained that her specific instructions were to argue the issue of non-compliance by the plaintiff, Hitchings AJ handed down a ruling in which the application by the RAF to uplift the notice of bar was dismissed. The Acting Judge in dismissing this application, noted that the principal reasons for his decision were that:

• No explanation had been proffered by the RAF for its failure to file the plea either timeously in terms of the Uniform Rules of Court or on being served with a notice of bar.
• No explanation was tendered by the RAF for it bringing this application so late.
• The fact that the proposed plea as outlined by the State Attorney would not disclose a defence to the action.

Mention is made in the written judgment of the fact that there was a written objection to the default judgment application filed by the RAF, but the details of the objection are not contained in the judgment.

While it seems apparent that the RAF application was dismissed based on the Mautla judgment, the purpose of this article is really to deal with the provisions of s 24(1)(a), (4) and (5) of the Act, which read as follows:

‘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.

…

(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 subsection (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.’

While the contents of the internal regulations have been published and are known, the RAF contended that there has been no compliance in Skhosana, as they do not appear from the judgment. It is apparent that Hitchings AJ is bound by the Full Bench decision of Mautla and was correct in his refusal to entertain the application by the RAF.

What is clear in Skhosana is that:

• Hitchings AJ was not bound to consider the internal regulations reviewed and set aside and had to deal with s 24 (1), (4) and (5).
• The summons in Skhosana must have only been issued and served after the expiration of 120 days from the date of lodgement of the claim.
• Since no objection to the claim had been delivered within 60 days from date of lodgement the claim must be deemed ‘to be valid in law in all respects’ (s 24(5)).
• The attempt by the RAF to rely on the internal regulations held to be reviewed and to disregard s 24(5) is disingenuous and perhaps was mala fides.

Leslie Kobrin Dip Jur (Wits) Dip Bus Man (Damelin) is a consultant legal practitioner at Bove Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2024 (March) DR 16.