Special Alert!

PRACTITIONERS PLEASE NOTE THE DISCUSSION OF THE JUDGMENT OF THE CONSTITUTIONAL COURT

IN THE MVUMVU MATTER BELOW AND CAREFULLY CONSIDER ITS IMPLICATIONS.

RAF MATTERS

The long anticipated Road Accident Fund Amendment Act No. 19 of 2005 came into effect on 1 August 2008, catching many of us by surprise. The now notorious amendment introduces far-reaching changes to the Road Accident Fund Act of 1996.

Some of the more controversial amendments are, inter alia:

• The exclusion of claims for general damages save for “serious injuries”.
• The capping of loss of income/support at R191 733.00 with effect from 31 October 2011.
• The exclusion of damages arising from emotional shock which may be experienced by secondary victims.
• The abolition of the common law right to claim damages (not recoverable from the Fund) from the driver or owner of the vehicle which caused the accident.
• The tariff to be applied for future medical expenses.

On 8 August 2008, the RAF was interdicted from implementing its proposed direct payment system (DPS) to claimants. The application was launched by The Law Society of South Africa (LSSA), SAAPIL and another. A final interdict was granted in the Cape High Court on 11 June 2009. The court declared invalid, and set aside the RAF’s administrative decision of June 2007, to forthwith implement the DPS.Please note that the interdict applies only to the 2007 decision and does not preclude the RAF from making further such decisions in the future.

The LSSA and three others have launched an application challenging the constitutionality and validity of the Act and the Regulations. The Honourable Fabricius AJ dismissed the whole of the application on 31 March 2010.

An Application for Leave to Appeal direct to the Constitutional Court against certain parts of the judgment was granted by the Constitutional Court on 12 August 2010 and immediately thereafter the appeal was argued. The Heads of Argument and background are available on the LSSA website (www.lssa.org.za). Judgment was handed down by the Constitutional Court on 25 November 2010.

The Court upheld the provisions of S 21 which abolishes the injured motor accident victim’s common law right to claim compensation from the wrongdoer, for damages not covered by the RAF in terms of the Amendment Act.

It also upheld S17 (4) (c) which provides for limitations on the amount of compensation that the RAF is obliged to pay in respect of claims for loss of income or loss of support.

The Court did, however, strike down the tariff under Regulation 5(1) as being inconsistent with the Constitution. The Minister will now have to make a new determination, but in the interim full compensation for hospital and medical costs has been restored. This applies retrospectively to the date on which the Regulation took effect.

Claims for General Damages for Serious Injuries under the Amended Act.

An article on this topic and particularly the completion of the RAF 4 forms was written for us by Clement Shirilele and published in the August Risk Alert Bulletin.

We have been advised that at present (13 September 2010) any registered medical specialist may complete the RAF 4 form, and not only those who have attended the two RAF training courses, as no courses have been gazetted by the Minister of Transport.(Of course, the prescribed assessment method will have to be adhered to.)

It should also be noted that, after completion of an assessment with the AMA Guides (6th Edition*), where the result is less than a 30% impairment (WPI), the claimant may well be able to show that s/he qualifies in terms of the narrative test, which focuses on the permanent consequences of the injury to the individual, rather than on the nature of the injury itself.

*We have also been advised that only the 6th edition and not the 5th edition must be used, as there are great differences between the two editions.

Case law on serious injury claims.

Francisco Thomas Juscilino Nhambe v Road Accident Fund, Case No 70721/2009. North Gauteng High Court, 10 November 2010.

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The plaintiff claimed damages for bodily injuries resulting from a collision on 23 March 2009. The plaintiff’s claim fell to be dealt with in terms of the amended RAF Act.

Before trial, the merits had been settled 80/20 in favour of the plaintiff and the matter came to trial on the basis that the only issues that fell to be dealt with were the quantum of both general damages and loss of income.

Initially, the RAF had applied for a postponement, inter alia because it wished to have the plaintiff further assessed. The court refused the application for a postponement and the trial proceeded.

The RAF4 had been completed by a medical practitioner. The plaintiff had obtained a further report from an orthopaedic surgeon.

Tuchten J held that :

The amended Act restricts claims for non-pecuniary loss to cases where serious injury has been suffered. On any rational basis, the plaintiff has suffered a serious injury and the defendant is in my view precluded by the concession that the merits of the plaintiff’s claim have been disposed of, from raising any procedural objection to the plaintiff’s claim for general damages. It follows from this evaluation that I must approach quantification of the claim for general damages on general principles, untrammelled by any restrictions imposed by the amended Act and Regulations.

The court held that, on any evaluation (i.e. whether in terms of the amended Act and Regulations or on general principles) the plaintiff had suffered a serious injury and should be compensated by way of general damages. He awarded an amount of R300 000 less 20% in terms of the agreed apportionment.

The court also dealt with the question of whether the cap to be applied on loss of income was the one applicable as at the date of injury or as at the date of trial.

Tuchten J expressed the view that the legislature did not intend the quantum of the claim for loss of income to depend on the length of time which elapsed before the matter came to court and therefore held that the applicable cap was that at the date of injury.

Please Note: Attorney Jacqui Sohn expresses the view that the findings in this judgment are likely to be attacked by the RAF in similar matters. She notes that in this particular case they were caught unprepared, had not objected to the assessment as “serious” by the Plaintiff’s doctor, had not specifically pleaded that the injuries were not “serious” as defined in Regulation 3, had not referred the Plaintiff to their own medical experts and were refused a postponement by the presiding judge.

We thank Roelf Nel of Independent Actuarial Consultants (Pty) Ltd, for the following case study which he kindly agreed to allow us to republish from his newsletter. For any queries, he can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it Tel: 021 422 4373

Serious Injuries – The Interrelationship between the AMA Guides and the Narrative Test as Set Out in Daniels & 2 Others v RAF, Cape of Good Hope Provincial Division, Case No: 8853/10

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This decision was made in relation to the application of the 3rd respondent in this matter, one Ntombiko Priscilla Sunduzwayo. She was injured in a motor vehicle accident on 9 April 2009. At the time, she was working at a bus terminal in Philippi, Cape Town, as a passenger-tout for long distance buses and taxis to the Eastern Cape. She was struck down by a motor vehicle while crossing a road and sustained severe injuries to her lower leg. As a result, she is unable to resume her work as a tout, an occupation which requires her to run about physically in search of potential passengers.

She contended that the consequences of her injuries on her quality of life renders it appropriate to characterise the injuries as 'serious' within the meaning of the proviso to s 17(1) of the Act and she proposed to claim compensation for general damages. As she could not afford to pay the R 7 000.00 required for a serious injury assessment report she submitted a request to the Fund for financial assistance in respect of the required serious injury assessment on 4 September 2009. On 19 April 2010, after her attorney had made various follow up inquiries, the Fund refused the request for financial assistance. The Fund contended that it was liable to pay the costs of a serious injury assessment only in the event that the claimant had sustained serious injuries that resulted in not less than '30% permanent body impairment'. A telephonic enquiry by the applicant's attorney obtained confirmation from the relevant functionary at the Fund who had been dealing with the matter that he had not considered the narrative test to ascertain the seriousness, or lack thereof, of the injury.

In the court papers the Fund stated that if a request for financial assistance in respect of a serious injury assessment is not sufficiently substantiated to establish a prima facie indication of a serious injury it will not fund further investigation into the seriousness of the injury or its consequences. It further stated that the so-called narrative test is there to cover those isolated and rare cases where the objective criteria of the AMA6 are not met. It is a fallback position.

The court stated that the narrative test falls to be applied as an integral part of any serious injury assessment and this is indeed confirmed by the content of part 5 of the RAF4 form, which gives effect to regulation 3(1)(b)(iii) of Road Accident Fund Regulations (2008). There is nothing in regulation 3(1)(b) which suggests that the narrative test should be applied only in 'rare and isolated cases'. The functionary of the Fund who declined the third applicant's request in terms of regulation 3(2)(b) gave no consideration whatsoever to the possible effect of the application of the narrative test and plainly did not consider that the narrative test fell to be applied together with AMA Guides as 'a collective' and not as a fallback procedure when the AMA guidelines had not been met.

The decision by the Fund to decline the third applicant's request in terms of regulation 3(2)(b) of the Road Accident Fund Regulations (2008) was set aside.

PLEASE NOTE: This decision was not a direction by the court that the applicant’s request for financial assistance should be granted. Her application was, in effect, simply referred back to the RAF for proper consideration. The court emphasised that its finding went only to the manner in which the applicant’s request had been dealt with by the Fund and did not suggest what the result should be after proper consideration of the request. Ann Bertelsmann.

Mngomezulu v RAF , Gauteng High Court (unreported case no: 4643/2010)

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The plaintiff, a 25 year old male was involved in a hit-and-run motor vehicle accident on 8 August 2008, as a result of which he suffered a closed chest injury with lung contusion, a 30 cm laceration on the right thigh, compound tibia-fibula fractures and a moderate head injury. The plaintiff instituted an action against the RAF claiming compensation for the following heads of damage; past and future medical and hospital expenses, past and future loss of earnings or loss of earning capacity as well as general damages.

The RAF opposed the action (in particular disputing the claim in respect of general damage and loss of earnings) and raised a special plea stating that the plaintiff had not complied with Regulation 3 and that therefore such plaintiff’s claim for general damages was “unenforceable”. The court, following the decision of Makhombothi v RAF (unreported case no: 46854/2009 - click here), where it was held that the RAF’s admission of liability in terms of section 17(1)(a) entitled the plaintiff to enforce his claim for general damages in the court and further that the jurisdiction of the court was not ousted, dismissed the special plea with costs on a scale as between attorney and client. The court referred to the RAF’s view that where an objection is raised the matter must be referred to the tribunal referred to in Regulation (3)4. However, when the court enquired as to the existence and operation of the tribunal a clear answer was not provided by the RAF’s legal representatives. The court concluded that it is a “phantom body” and referral of the issue to such a “mystical tribunal” would amount to an unnecessary or unjustifiable delay in the finalisation of the case. The court stated that the issue of jurisdiction is directly related to the issue of referral to a tribunal and if there is an objection to the jurisdiction of the court it should be raised by way of a special plea.

With regard to the merits, the court found that the “insured vehicle left its lane of travel on the tarmac, climbed the pavement and collided with the unsuspecting Plaintiff”, thus the RAF was found to be solely liable. As per the plaintiff’s particulars of claim, the basis of the claim for general damages lay in the “narrative test” in terms of Regulation 3(1)(b)(iii)(aa)-(cc). The court held that with regard to assessing the injury as serious in terms of the amendments to the RAF Act of 1996, the two alternative tests that can be used are; the “[w]hole person impairment test (WPI) as per Regulation 3(1)(b)(ii) and the so-called narrative test as per Regulation 3(1)(b)(ii)(aa)-(dd)”.

The court referred to the fundamental differences between the two tests confirming that the WPI rating seeks to assess the injury and assign a WPI rating when MMI has been reached. It does not permit the rating of future impairment. The “narrative test” is a safety net providing an alternative assessment where the AMA Guides would not result in a finding of serious injury. In casu various reports and RAF 4’s completed by medical specialists were filed confirming that the injuries sustained by the plaintiff were serious as per the “narrative test”. The RAF objected to various reports on the following grounds. Firstly, with regard to one report, that MMI had not been reached at the time of completion of the RAF 4, however, the court pointed out that the concept of MMI is relevant only to WPI rating and not the “narrative test”. Secondly, that the medical practitioners did not complete the RAF 4 correctly in that they had failed to assign a WPI rating and instead chose to rely on the “narrative test”. To this, the court pointed out that there was nothing in the Regulations which prevented the plaintiff from being assessed in terms of the “narrative test”. Either of the tests may be used and the plaintiff does not have to be assessed first in terms of the WPI test before the “narrative test”. Thirdly, the reports of two medical practitioners were rejected on the basis that the injury had not been satisfactorily assessed in the RAF 4 and the RAF requested the plaintiff to avail himself for assessment by their own medical practitioners.

The court provided the following guidelines with regard to the rejection of the RAF 4:

If the RAF is not satisfied that the injury has been correctly assessed there are two routes that may be taken:

Either

(a) The RAF must reject the serious injury assessment report and furnish the plaintiff with reasons therefore (in terms of Regulation 3(3)(d)(i)). The court stated that this alternative applies only to procedural aspects of the assessment and provided the following examples: where the report is completed by an unqualified person; the assessment is not conducted in terms of the prescribed method; the impairment evaluation reports for a specific body part are not attached as required; the report is not completed in all particularity. In order for the RAF to succeed with this option it must not merely reject the report but provide “sufficient reasons” which are relevant, rational and substantial justifying such rejection (as was held in Smit v RAF unreported case no: 47697/ 2009 – see case 3 below).

or

(b) The RAF must request the plaintiff to avail him or herself for further assessment by their own appointed medical practitioner at the RAF’s cost in terms of Regulation 3(3)(d)(ii). The court held that this alternative in contrast to (a) above applies to the actual material medical findings of the assessment. For the RAF to succeed with this option, it must provide dissenting medical opinion.

Only when the measures set out in (a) and (b) above have been exhausted can the matter be referred to the tribunal.

In casu the court found that the RAF had incorrectly relied on option (a) above further failing to supply sufficient reasons which did not amount to a proper rejection or objection in the prescribed manner. The RAF should have rather used option (b) above. The court therefore found the RAF liable to compensate the plaintiff in respect of his claim for general damages. The court held that the RAF’s eventual admittance of the truth and correctness of the medico-legal reports relating to the seriousness of the plaintiff’s injuries further confirms the plaintiff’s entitlement to general damages.

The RAF did not make any submissions with regard to general damages, both in its heads of arguments and in court, save to ask that the plaintiff’s claim be dismissed for lack of compliance with the Act and the Regulations. The court held that the RAF “placed all its eggs in one basket” and must therefore live with the consequences.

The court was not impressed with the RAF’s handling of the claim and lashed out at the claims handlers, stating that it was about time that “they are hauled to court to explain their actions under oath. At the very least courts must show their abhorrence of such conduct or attitude by awarding a punitive costs order”. The court pointed out that road accident victims “are constantly faced with ill-founded, spurious and brazen attempts to delay finality of matters”, trials are also unnecessarily prolonged. The court stated that the aim of the amendments “was to shorten the time for settlement or finalisation of the claims rather than to further delay them”.

Louw v RAF, South Gauteng High Court, Case no 49084/09 (Judgment 12 August 2011)

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The plaintiff sustained bodily injuries when a taxi in which she and her minor son were travelling collided with another vehicle. The collision occurred on 31 December 2008 after the Amendment Act had come into operation (i.e. 1 August 2008). The plaintiff’s minor son died on the scene of the accident.

In addition to claiming for future medical and funeral expenses and future loss of earning capacity, the plaintiff claimed general damages including pain and suffering, shock and loss of amenities of life.

The defendant alleged that the plaintiff had failed to comply with the provisions of Regulation 3. The plaintiff had submitted the required RAF4 report in terms of Regulation 3(3)(a). Counsel for the defendant argued that the 60 day period referred to in section 24(5) of the Act only related to the RAF1 form and not the RAF4 form. He drew the inference that, because the section did not prescribe a time limit within which the Fund had to either reject the RAF4 report or direct that the plaintiff should submit herself to a further assessment to ascertain whether the injury was serious, the plaintiff was precluded from claiming general damages.

The Court disagreed with the defendant’s counsel’s reasoning, holding that, if such an interpretation prevailed the RAF could indefinitely avoid and frustrate every claim against it for general damages by simply not taking either of the above-mentioned steps. The Court decided that in terms of section 24(5) of the Act, the defendant had had 60 days within which to object to the validity of the claim, “failing which the claim is deemed valid in all respects”. The defendant had failed to object to the validity of the claim within the 60 day period and had also failed either to reject the RAF4 report or to direct the plaintiff to submit herself for assessment.

The Court accordingly dismissed the special plea.

On the General Damages Claim

The Court had regard to Regulation 3(1)(b)(iii)(aa) to (cc) and found that the plaintiff’s injuries constituted a serious long term impairment and loss of ‘some’ of her body functions. It also found that the tragic loss of her son and her angst about travelling in vehicles constituted a severe long-term mental or behavioural disturbance or disorder. The Court thus awarded the plaintiff general damages in the amount of R100 000 in addition to loss of earning capacity, funeral expenses and an undertaking in terms of s 17(4)(a). (The Court somewhat confusingly, also found that, on the expert evidence MMI had been reached. As discussed with regard to the Mngomezulu matter (above) the concept of MMI is relevant only to WPI rating and not the “narrative test”).

The Court showed its extreme displeasure at the defendant’s legal representatives’ conduct of the defendant’s case, by awarding costs de bonis propriis in respect of the second and third days of trial. (The full judgment is available on our website at www.aiif.co.za and the court’s reasons for this punitive costs order should be noted by all practitioners especially those who litigate on behalf of the RAF).

Damages 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...” are not covered by the RAF under the amended Act.

With respect we are of the view that the court incorrectly took into account the plaintiff’s shock at the death of her son in considering the issue of general damages.

Smith & Another v RAF, South Gauteng High Court 47697/2009, 29 April 2011

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When this matter came before the court, merits had been conceded 100% and the only issue in dispute was the claim for general damages. The defendant raised a special plea that the court lacked jurisdiction to deal with the question of general damages as the defendant had objected to the RAF 4 form.

Claassen J noted that if the RAF objects to the RAF 4 report and raises a dispute, then the court’s jurisdiction is ousted and the matter is referred to a medical tribunal. He questioned whether the RAF had in fact raised a dispute as provided for in the Act in order for the matter to be referred to a tribunal.

The RAF 4 had been completed by a certain Dr Morari, six months after the accident. He confirmed in the report that the patient had reached MMI (Maximum Medical Improvement) and found that there was a 57% whole person impairment. The plaintiff had suffered a brain injury and paralysis of the left side of the body.

The RAF had written a letter to the plaintiff’s attorneys stating that they rejected the assessment on the basis that the patient had not reached MMI at the date of the completion of the RAF 4. No medical opinion was relied upon to support this finding.

It emerged at trial, that the RAF routinely instructed its attorneys to object to MMI in respect of any assessments less than two years post accident. Claassen J held that this practice was arbitrary and discriminatory and not related to any objective assessment of the facts. He held further that there was no legal or medical basis for this practice and that the dispute raised was accordingly not valid.

Claassen J found that the plaintiff’s expert evidence supported the fact that MMI had been reached and that the defendant had not provided any expert evidence to the contrary.

It was held therefore that the Court did have jurisdiction and that the question of general damages need not be referred to a tribunal.

The special plea was dismissed with costs on the attorney and client scale, because of unnecessary costs incurred as a result of the RAF’s unjustified objection.

General damages in an amount of R1 million were awarded.

Mpondo v RAF, Eastern Cape High Court, CA283/2011, 26 April 2011

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The appellant appealed the judgment of the trial court on the grounds that the trial judge had erred in considering the case of Strydom v RAF to be a “benchmark” in determining the amount to be awarded to her for general damages. The appellant successfully contended that the award of R350 000 was disturbingly inappropriate and the Court ordered the respondent to pay R550 000 in respect of general damages.

Dambuza J in finding that the trial court had misdirected itself, stated that “when considering past awards made in comparable cases a proper basis for comparison must be ascertained. In this exercise the court should, in my view look at the pattern of awards made in comparable circumstances rather than a singular award made in respect of injuries similar to the case at hand. In my view a court, by restricting itself to one comparable case unduly fetters the discretion it has in assessing a neutral, fair and reasonable compensation for the plaintiff”.

Akaai v RAF, South Gauteng High Court, 10/4245

Click here to view this judgment of Kathree-Setiloane, J, in another matter where the RAF unsuccessfully raised a special plea to the plaintiff’s claim for general damages.

TSHABANGU V Road Accident Fund (2009/49589) {ZAGPJHC145 (19 October 2011)

The RAF had unsuccessfully raised a special plea that, in terms of section 17(1A) read together with regulation 3(1) of the Act,  the plaintiff did not qualify for compensation for general damages as the plaintiff’s whole person impairment (“WPI”) was assessed at 8 percent.
The plaintiff had submitted three separate RAF4 forms in support of his claim for general damages based on the “narrative test”. The RAF had not objected to the content of the forms.
Weiner, J delivered judgment in favour of the plaintiff on 18 August 2011. She also ordered that a rule nisi be issued, calling upon the RAF’s senior claims manager and its attorneys to show cause why they should not be ordered to pay costs de bonis propriis on the attorney and client scale. The reason for this was the Court’s dissatisfaction with the way in which preparation for trial had been conducted and the fact that the special plea had been raised and pursued.
The learned judge noted that the RAF had failed to follow the proper procedures in objecting to the RAF4 forms based on the narrative test, but had still persisted with its special plea that the WPI fell below 30%. She made reference to two earlier South Gauteng judgments of Claasens, J namely  Smith and Another v Road Accident Fund, case no: 47697/09 and Mianbo v Road Accident Fund, case no:00322/10, in which the same issue had been raised in a special plea and dismissed by the Court. She noted that the firm of attorneys acting in the present case had acted for the RAF in those two matters as well.
Weiner, J expressed displeasure with the way in which RAF matters were generally conducted by the RAF and its attorneys. She stated that “It borders on contempt of court that a firm of attorneys against whom several judgments have been granted on a particular issue continues to file the same plea and persists with it when it is not applicable in the particular circumstances of the case.” She found that both the defendant and the defendant’s attorneys had “failed to a material degree to promote the effective disposal of this litigation”.
She ordered the defendant and its attorneys to pay the costs from 12 May 2011 to date, jointly and severally, the one paying the other to be absolved. She also directed the Registrar to send a copy of the judgment and order to the Law Society of the Northern Provinces, to investigate the conduct of the defendant’s attorneys.

Ann Bertelsmann, Risk Manager AIIF

Updated list of practitioners who can complete the RAF4 Forms

Gauteng

1. Dr Pampata Mbekeni PO Box 2945, Springs, 1560 083 272 1633
2. Dr Priya Chagan PO Box 26058, Monument Park, 0105 079 136 2448
3. Dr Rikus Scheepers PO Box 22855, Middelburg, 1050 073 475 5080
4. Dr Johan Kotze PO Box 4831, Middelburg, 1050
5. Dr Caswell Nkuna PO Box 7628, Nelspruit, 1200 082 465 4637
6. Dr Peggy Sekele PO Box 77394, Eldoglen, 0171 083 230 1518
7. Dr Aamina Peer PO Box 1120, Groblersdal, 268 West St 083 786 7662 Centurion

KwaZulu-Natal

8. Dr Ravi Naidoo PO Box, Richards Bay, 3900 035 789 83099.
9. Dr Dhunray Sookoo PO Box 22554, Glenashley, 4022 031 502 4600
10. Dr Neeta Dooken PO Box 60230, Phoenix, 4080 083 777 7512
11. Dr Nhlanhla Zulu PO Box 764, Melmoth 073 243 6247
12. Dr KJ Gabela PO Box 6890, Zimbali 082 899 5273/032 454 1194
13. Dr SA Meer PO Box 26108, Isipingo Beach, 4115 083 786 9356
14. Dr Michael Marshall 31 Marion Avenue, Glenashley 082 321 1122
Durban 031 303 3874
15. Dr Michael JH Mair PO Box 30182, Mayville, 4058 083 448 6449/031 361 1371
16. Dr Mzukisi Grootboom PO Box 622, Westville, 3630 083 306 7779/031 309 5275
17. Dr Mahenola Pramchand PO Box 74672, Rochdale Park, 4034 083 278 4368/0861 246377
18. Dr Afzal Osman PO Box 31051, Mayville, 4058 083 786 6000/031 202 6888
19. Dr B Harryparsad 391 Jabu Ndlovu Street, Pietermaritzburg, 3201, 033 3456883/6008, 083 7812616
20. Dr Paresh K.V. Patel, P O Box 8864, Cumberwood, 3235, 033 345 3088

Cape Town

21. Dr Theo le Roux PO Box 2418, Nigy 082 444 5627
22. Dr Ravin Kumar Ramdass PO Box 513, Greytown 082 443 5901
23. Dr Zayne Domingo PO Box 19128, Wynberg, 7824
24. Dr Mohamed Rafq Abbas PO Box 14298, Kenwyn Flats 082 566 7974/021 705 3995
25. Dr Jalaluddin Dhansay PO Box 466, Gatesville, 7766 083 786 7839/021 637 1748
26. Dr Abdul-Wahab Barday PO Box 473, Gatesville, 7766 082 554 8786/021 638 3135
27. Dr Frans Steyn 2 Sohnay Ville, Bellville 021 948 6134
28. Dr Richard Marks 021 671 9479
29. Dr Keir Le Fevre 021 685 5528
30. Dr Fernandez Adams 96 Klein Drakenstein Road, Paarl 021 862 6179
31. Dr Nealroy Swarts PO Box 3312, Jeffreys Bay, Eastern Cape 072 237 8917/042 243 2151
32. Dr Bonakele Qabaka PO Box 14064, Sidwell, 6061 082 554 1155
33. Dr Johan Reid PO Box 5078, Bellville 083 626 5150
34. Dr Pradeel Makan PO Box 560, Howard, 7405 082 448 9797/021 506 5590/637 0501
35. Dr Johannes P Mouton 67 Urban, Alwick Road, Diep River, 7806 084 583 3075
36. Dr Jason Sagor 1406 Chris Barnard Hospital, Cape Town 021 423 8442/083 651 3124

We have been advised that the following practitioners are also willing and able to complete the forms.

1. Dr J R Domingo FRCS, CIME P O Box 201054 KZN 4016 Tel: (031) 2089253 Fax: (031) 2089233
2. Dr J F Ziervogel M.B.CH.B. (PRET) M. MED (ORTO) BFN Suite G06, Medi-Clinic, Meulenstraat, WELKOM 9459 Tel: (057) 352 5357 Fax 2 e-mail 086 5302 591 E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
3. Dr Willies (orthopaedic) Tel (021) 715 2657
4. Dr Badenhorst (Neurologist) Tel (021) 949 8073

Disclaimer
Important Note: The names and details of the medical practitioners may be inaccurate and incomplete. We cannot vouch for the accuracy of this information, endorse the practitioners on the list, or verify that they are properly trained.

We have also received the following list of practitioners from the RAF:

Click to Download Practitioners List (228kb)

Recent Case Law on Passengers Claims under the unamended Act

Mvumvu and Others v Minister of Transport and Another (7490/2008)

In this matter, judgment was handed down in the Western Cape High Court by Bozalek J on 28 June 2010, ruling that:

1. Sections 18 (1) (a) (i) and 18 (1) (b) of the RAF Act 56 of 1996 as they stood prior to 1 August 2008, were inconsistent with the Constitution and invalid
2. Section 18 (2) of the RAF Act 56 of 1996 as they stood prior to 1 August 2008, were inconsistent with the Constitution and invalid;
3. Such declarations of invalidity would apply to all claims to be instituted against the RAF Act 56 of 1996, which as at the date of his order:
   • a. Had not prescribed; and
   • b. Had not been finally determined by judgments at first instance or on appeal; and
   • c. Had not been finally determined by settlement duly concluded.
4. *All such claims referred to in paragraph 3 above shall qualify for no greater compensation than that which would accrue under the provisions of the RAF Amendment Act, 19 of 2005, as it stood on 1 August 2008.
5. The order was referred to the Constitutional Court for confirmation of the order of constitutional invalidity.

* The implications of point 4 of the order in regard to non-finalised matters arising out of accidents which occurred before 1 August 2008 are likely to cause some confusion amongst both practitioners and the RAF staff. It should be noted that paragraph 4 of the order relates only to the quantum of the claim and not any procedural requirements. In terms of the judgment passengers who rely for their claim entirely on the negligence of the driver of the vehicle in which they were travelling will have their claims limited as provided for in terms of the Amendment Act, i.e. general damages for “serious” injuries only and capped loss of earnings. Common law claims for the balance not covered by the RAF Act are unaffected. (By the way, the Amendment Act has a loophole in that it does not restrict past medicals and hospital expenses claimed as part of the main claim to UPFS rates!)

The Plaintiffs’ attorneys are applying to the Constitutional Court for an order setting aside the order in paragraph 4 above. The RAF and Minister of Transport are in turn appealing against the whole of the order. It is intended that both applications will be heard on 4 November 2010, so it is possible that there will be a delay in settlement of such matters, pending the outcome of an appeal.

Mvumvu & Others v Minister of Transport and Road Accident Fund, Constitutional Court 67/10.

On 17 February 2011, the Constitutional Court confirmed the above 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 pre-amendment Road Accident Fund Act 56 of 1996 (i.e. as it was prior to 1 August 2008).

However, the invalidity was suspended for a period of 18 months from 17 February 2011, to enable Parliament to “cure the defect”. It should be noted that, although sections 18(1)(a)(ii), 18(1)(a)(iii) and 18(1)(a)(iv) had not been challenged and were not covered by the declaration of invalidity the 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 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 judgment has been granted before the date of this order.” Therefore the order will not apply retrospectively to any matter that was already settled on 17 February 2011. However, all other claims in terms of the challenged sections will be unlimited “as if the cap had never been enacted”.

Jacqui Sohn, the Chair of the LSSA’s RAF Committee, warns that the declaration of invalidity has to be read with sections 21 and 19 of the Act. Practitioners should be aware of the fact that common law defendants will have a complete defence to any claims by passengers where those claims had not been finalised as against the RAF as at 17 February 2011. She says that “Anyone settling a passenger claim with the RAF on a limited basis after 17 February 2011 is at risk if the quantum of the claim, in fact, exceeds that amount.

Ms Sohn also points out that care should be taken not to allow any potential common law claim by a passenger to prescribe as against another third party or the RAF. She uses the following example to illustrate. Where Parliament, in deciding the amount of compensation to which applicants are entitled imposes monetary restrictions (such as the original proviso in the judgment of the Western Cape High Court) then the uncovered portion will still, in terms of section 21 of the RAF Act, form the basis of a common law claim.

Road Accident Benefit Scheme (RABS)

“A policy has been drafted for the restructuring of the RAF as a compulsory social insurance scheme (RABS) to be administered by the Road Accident Benefit Scheme Administrator (RABSA) and was presented to the Parliamentary Portfolio Committee on Transport in February 2010 and the National Council of Provinces in September 2010. The submission made against the introduction of the scheme by the LSSA is available on its website (www.lssa.org.za) LSSA has been advised by th Department of Transport that comments are currently being analysed and thereafter, a report will be compiled for consideration by the Minister. During the February 2010 presentation it was stated that a public consultation process would be undertaken on the proposal and LSSA has requested details.”