RAF notice that saw claimants ‘excluded’ declared unconstitutional

A Road Accident Fund (RAF) Board Notice, which resulted in victims of motor vehicle collisions being excluded from claiming compensation, has been declared unconstitutional, unlawful and invalid by the High Court in Pretoria.

The court also set aside a number of management directives adopted and implemented by the RAF, together with a substituted claims form.

In a judgment handed down on Monday, a full court comprising Judges Ingrid Opperman and Anthony Millar and Acting Judge G Alley said that fundamentally the RAF exceeded its powers in issuing and applying the Board Notice in a peremptory way without any statutory authorisation.

Administrative hurdles

They said the notice did not facilitate the efficient administration of claims but rather reduced the number of claims by creating administrative hurdles to stop claims from being submitted.

“It resulted in victims of motor vehicle collisions being excluded from claiming compensation.

“The [RAF] Act does not contemplate two sets of rules – one by regulation and another by Board Notices,” they said.

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The judges added that the delivery and acknowledgement of receipt of a claim does not impede in any way the discharge of the RAF of its mandate in terms of the RAF Act nor does it impose more liability on the RAF.

They added that the RAF decisions were taken unilaterally and in circumstances where the RAF was not empowered in terms of the act to do so.

Neither authorised nor rational

The judges ruled that the RAF decisions and substituted RAF1 claims form were neither authorised by the RAF Act nor rationally connected to the achievement of the purpose of the Act.

“Properly construed, the making of the decisions and their implementation are so unreasonable and so inimical to the purpose and provisions of the Act that the RAF in doing so acted in a manifestly unreasonable and unlawful manner.

“The decisions and substituted RAF1 [claims form] are unlawful and must accordingly be set aside,” they said.

The judges declared Regulation 7(1) of the RAF regulations promulgated by the Minister of Transport in terms of the RAF Act to be unconstitutional, unlawful and invalid “and is reviewed and set aside to the extent that it confers upon the RAF the right to amend or substitute the ‘RAF1 [Claims] Form’ to the regulations”.

The panel of judges, in terms of the Promotion of Administrative Justice Act, also reviewed and set aside the RAF decision:

• To adopt and implement the Management Directive titled “1/2021 – Compulsory Information to be submitted when lodging a claim for compensation with the RAF” dated 8 March 2021.
• Set out in the “RAF Supplier Claims external Communication” dated 19 May 2021 which requires the compulsory submission of certain supporting documents for the submission of supplier claims.
• To publish, adopt and implement “Board Notice 58 of 2021”, with description “Road Accident Fund Stipulation of Terms and Conditions upon which Claims for Compensation shall be Administered” published in the Government Gazette on 4 June 2021.
• To publish, adopt and implement the “Substitution of RAF 1 Claim Form” published in the Government Gazette on 4 June 2021.

The judges further ordered that:

• Any objection, or rejection by the RAF of a claim for compensation submitted between 8 March 2021 and 15 June 2021 due to non-compliance with the Management Directive, Board Notice or Substitution Notice is declared to be null and void.
• Claimants whose claims were rejected by the RAF between 8 March 2021 and 15 June 2021 due to non-compliance with the Management Directive, Board Notice or Substitution Notice are given six months from the date of this order to resubmit their claims in accordance with the provisions of the RAF Act.
• The RAF is ordered to inform each and every person of whom it has a record, and who submitted a claim between 8 March 2021 to 15 June 2021 and whose claim was neither accepted nor acknowledged, of the terms of this order.
• The RAF shall inform each and every person of whom it does not have a record, and who submitted a claim between 8 March 2021 to 15 June 2021 and whose claim was neither accepted nor acknowledged, of the terms of this order by publication of the whole order in a newspaper circulated nationally on a Friday, commencing the first Friday after the granting of this order, for four consecutive weeks and to post a copy of this whole order on its website, where [it] must remain, prominently displayed on the home page, for a period of not less than six months, commencing within days of the granting of this order.

The application to review and set aside the RAF decisions was brought by nine applicants, who were all persons who claim an entitlement to submit claims to the RAF, either as persons who had been injured in a road accident and entitled to do so or as suppliers of medical services to such persons.

The RAF was ordered to pay the costs of each of the applicants.

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The applicants previously applied for and were granted an interdict against the implementation of the RAF Board Notice and substitution of the existing RAF claims form on 15 June 2021.

The judges said the claim form and requirements for the submission of a valid claim are the gateway to any claim for compensation and hence there is a necessity for proper consideration and consultation before any such requirements that are not specifically prescribed by statute can even be considered, let alone imposed.

They said it is of significance that the RAF Board created a Claims and Legal Committee (LECOM), which decided to publish the notices underpinning the decisions.

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However, the judges said the RAF Act does not specifically provide for the creation of board sub-committees.

“Although it does not prohibit the creation of committees by the RAF Board, LECOM has no legal or statutory authority.

“The Board was not asked to consider the matter. The Board was simply informed of the decisions that had already been taken by LECOM,” they said.

Claim form

The judges said the claim form to be submitted must now no longer only “substantially comply” with the requirements of the RAF Act but it “shall be completed, in all its particulars”, with an additional peremptory requirement that it “must” be accompanied by certain specific supporting documents.

They said that if the claims form was not completed to the satisfaction of the RAF, together with the simultaneous furnishing of the additional documents, the RAF will not “be obliged to acknowledge receipt thereof”.

“What the RAF has done through the implementation of the decisions and the substituted RAF1 form is to summarily impose conditions for the submission of what it regards as a valid claim and at the same time appropriated to itself the right to decide whether or not the provisions of section 24(1)(b) of the Act are to apply,” they said.

Fund refused to acknowledge receipt of claims

The judges said that between 8 March 2021 and 15 June 2021, when the interdict was granted against the RAF for implementation of the decisions, but even thereafter, “the RAF refused to accept or acknowledge receipt of claims that had been submitted to it and which in its view were not valid”.

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Besides the applicants, it is unknown how many represented and unrepresented persons submitted claims that were neither accepted nor acknowledged by the RAF, they said.

“The consequence of this refusal to accept delivery or to acknowledge receipt of delivery of the claims engages the time limits within which claims are to be submitted in terms of the Act.

“The date of delivery of the claim is the essential first step for the enforcement of any rights in terms of the Act,” they said.

“This first step is crucial for claimants because it determines whether or not their claim in the first instance has been submitted timeously.

“There is no provision in the Act which permits the RAF to refuse to accept the delivery of a claim or to refuse to acknowledge receipt of that claim.

“Had the legislature contemplated such a situation, it would have provided for it specifically,” they said.

Comment was requested from the RAF on the judgment but a response has not yet been received.

This article is republished from Moneyweb under a Creative Commons licence. Read the original article.