(WESTERN CAPE HIGH COURT, CAPE TOWN)
 
CASE NO:  8853/2010
 
In the matter between:
 
CHRISTO ARNIEL DANIELS                                           1st Applicant
NOZIPHO GLADYS SIKOTI                                              2nd Applicant
NTOMBIKO PRISCILLA SUNDUZWAYO                     3rd Applicant
 
and
 
THE ROAD ACCIDENT FUND                                        1st Respondent
THE MINISTER OF TRANSPORT                                  2nd Respondent
THE CHIEF EXECUTIVE OFFICER OF THE
ROAD ACCIDENT FUND                                                  3rd Respondent
 
JUDGMENT                         :                       JUDGE A.G. BINNS-WARD
 
FOR THE PLAINTIFFS      :                       ADV. J. C HEUNIS (SC)
                                                                        ADV. M. OSBORNE
                                                                        ADV. L. FERREIRA
                                                            
INSTRUCTED BY              :                       KRUGER & KIE
                                                                        PEOPLE’S BANK BUILDING
                                                                        VOORTREKKER RD 159
                                                                        PAROW
 
FOR THE RESPONDENT:                                   ADV.  D MITCHELL (SC)
                                                                        ADV. N. MAYOSI
 
INSTRUCTED BY              :                       CLIFFE DEKKER HOFMEYR INC
                                                                        12TH FLOOR
                                                                        BUITENGRACHT STREET 11
                                                                        CAPE TOWN
DATE OF HEARING           :                       6 August 2010
JUDGMENT                                     :                       13 August 2010
REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 8853/2010

In the matters between;

and

BINNS-WARD J:

(i)	the Fund, which is an organ of state established in terms of s 2 of the Act;
(ii)	the Minister of Transport, who is the member of the Cabinet with overall responsibility for the administration of the Act and, in that capacity, also statutorily responsible, amongst other matters, for approving the Fund's budget and appointing its Board; and

The relevant provisions of the Act

[3] The provisions of the Act that are relevant to the determination of the applications are those that regulate the claims procedure.

[6] Section 17(5) of the Act permits suppliers of medical care to any 'third party' to claim payment directly from the Fund for goods or services supplied to such party. Suppliers' claims are limited to the amount that the third party could have recovered from the Fund in terms of s 17(1) in respect of the third party's liability to the supplier for the goods or services concerned. It follows that the Fund is liable to pay a suppliers' claim only if the goods or services in question were supplied or rendered to a third party in connection with a death or injury which was due to the negligence or other wrongful act of a statutorily insured driver or owner of a motor vehicle, or the latter's employee. Put otherwise, it would be at odds with the provisions of the Act for the Fund to settle a supplier's claim and, in respect of the related third party claim, at the same time purport to assert that the statutorily insured driver or owner was not, but for the indemnity afforded in terms of the Act, liable for the third party's relevant damages.

[8] In terms of s 24(5), a claim form submitted by, or on behalf of a claimant in purported compliance with the requirements of the Act is deemed to have been validly completed in all respects if the Fund does not raise any objections within 60 days of the posting or delivery of the form to the Fund. Proceedings for the recovery of compensation from the Fund may not be instituted by a claimant 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, and before all requirements contemplated in s 19(f) of the Act have been complied with.
[9] The liability of the Fund is excluded, however, if a third party claimant fails or refuses (i) to submit to the Fund together with his or her claim form, 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 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 (s 19(f) of the Act). The Fund's liability is also excluded if the person in respect of whose bodily injury compensation is claimed fails or refuses to make his or her medical and hospital records available for inspection by the Fund, or refuses to submit to medical examination at the request and cost of the Fund (s 19(e) of the Act).

The constitutional implications of the Act

[15] In my view the constitutionality of at least some of the rights-limiting provisions in the Act mentioned earlier is predicated on the implicit undertaking by the state that the operation of the Act will entail the efficient discharge by the Fund of its functions in respect of the processing and determination of claims. Certainly, the justification for the limitations goes limping when the relevant organ of state fails properly, in faithful compliance with the Act, to render the performance that constitutes the very basis for characterising the limitation as reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Recognition of that effect inexorably impels the conclusion that a materially inadequate performance by the Fund of the relevant statutory functions would amount to conduct that would unjustifiably infringe the affected limited rights. At the same time, any such failure by the Fund to fulfil its statutory object would evidence a breach by the state of its obligations in respect of other rights, like equality, human dignity, security of the person, health and social security, which the Act is meant to represent a means of advancing and protecting.

that to be so, the state fails in its identified constitutional duty to the extent that it does not deploy that part of its arsenal efficiently and effectively in furtherance of its dedicated object.

The history of non-fulfilment by the Fund of its statutory object

[17] That during the last decade the Fund has too often failed to perform in a manner consistent with the realisation of its object of rendering an indispensible service to vulnerable members of society, with resultant prejudice to third party claimants, is evident from the adverse remarks made in a significant number of superior court judgments given during that period. The Fund's management cannot be unaware of this criticism; in some matters the courts concerned directed that copies of the judgment be sent to the Chief Executive Officer or the Chairperson of the Board. The sorry history suggests that the Fund has turned a deaf ear to repeated judicial enjoinders to comply properly with its statutory obligations, alternatively, that it is materially lacking in effective resources, and that insufficient has been done by government to address the underlying cause or reason for such incapacity.

The nature of the applicants' claims in the current cases

The preliminary objections as to joinder

[25] The facts and the statutory provisions pertinent to the complaints of each of the applicants are peculiar to each of their separate cases. That has given rise to an objection by the respondents concerning the manner in which thecurrent proceedings were instituted. Before turning to address the merits of the applications, it is convenient at the outset to deal with that procedural objection.

[27] There was also an objection of misjoinder in respect of the citation of the third respondent. This objection was also well taken. There was no proper basis to join the Fund's chief executive officer as a party to the proceedings. No substantive relief was sought against him. This objection should also have been taken in terms of rule 30. No prejudice has been demonstrated in respect of the misjoinder of the third respondent. It is therefore unnecessary to say more about it.

The history of the current litigation

[28] The current applications were launched at the end of April 2010. On 11 August 2010, an order was made by agreement between the parties enrolling the matter for hearing on 11 February 2011 on a timetable which required the Fund to deliver its answering papers by 17 September 2010; the applicants to deliver their replying papers, if any, by 29 October 2010; and for the parties' heads of argument to be delivered by 24 November 2010 and 15 December 2010, respectively. As it happened, the Fund's answering papers were filed only on 10 November 2010. Despite the fact that according to the tenor of the order made on 11 August 2010, the Minister of Transport, as second respondent, was party to the agreement in terms of which it had been made, the Minister has taken no role in the proceedings. (In this regard it should be mentioned that in terms of the applicants' notice of motion costs were sought against the Minister only in the event that the Minister should oppose the application.)

The relief sought by the applicants

2. That it [be] declared that:

2.1.1. In respect of the First Applicant, the RAF has arbitrarily failed to investigate, process, or concede the merits of the claim, and has in that regard conducted itself in an unethical, obstructive and irresponsible manner, inconsistent with the Road Accident Fund Act (56 of 1996), and with his rights to dignity, equality, health, and fair administrative action.
2.1.2. In respect of the Second Applicant, the RAF has conducted itself in an unethical, obstructive and irresponsible manner, inconsistent with the Act, and with her rights to dignity, equality, health, and fair administrative action, in particular by virtue of its bad faith denial and failure to investigate and process her claim.
2.1.3. In respect of the Third Applicant, the RAF has conducted itself in an unethical, obstructive and recalcitrant manner, inconsistent with the Act, and with her rights to dignity, equality, health, and fair administrative action, both in its delay in considering her application to have the RAF commit to paying for a serious injury medical assessment, and in its decisions of 19 April and 5 October 2010 not to fund such assessment.

2.1.5. The rights to dignity, equality, health and fair administrative action established in the Constitution prohibit the RAF from adopting and implementing policies that unreasonably frustrate the expeditious processing of claims lodged by victims of accidents covered by the Act, and which unfairly discriminate between suppliers of medical care, as defined in terms of s. 17(5) of the Act, on the one hand, and claimants under the Act, on the other hand.

3.2. lodge a report with this Court, within three months of the issuance of the order, setting out in detail the steps it has taken to implement the terms of this order with respect to each Applicants' claim; such report is to be made available to Applicants 15 days prior to being lodged with the Court, to allow Applicants the opportunity to simultaneously lodge any comments on the report they may see fit.

5. [That an order be made ajwarding administrative damages to each of the Applicants in the amount of R50 000.
[30] There is some similarity between the situations of the first and second applicants, who are both plaintiffs in separate actions for compensation currently pending against the Fund. Their situation is quite different from that of the third applicant, whose claim is currently still being processed administratively and is not yet the subject of delictual litigation. It is thus convenient to deal with the applications of the first and second applicants together before turning to treat separately with the quite different considerations affecting the determination of the relief sought by the third applicant.

The factual basis of the first applicant's case

[31] In summary, the background to the first applicant's application is as follows: An artisan at the time, he was badly injured on 11 November 2007 when he was run down from behind by a truck, while walking home from work. He had been walking on the gravel verge of a road near his home in Louwville. The incident was initially treated as 'a hit and run', but the identity of the vehicle and the fact that it been stolen earlier on the day of the accident by one Henry Jacobs - who would therefore probably have been the driver - were subsequently ascertained.
[32] The first applicant's claim for compensation was submitted to the Fund on 20 June 2008. It was accompanied, amongst other documents, by (i) the hospital records in respect of the applicant's treatment at the Vredenberg and Groote Schuur hospitals, (ii) a consent to the inspection of the applicant's medical records, (iii) an affidavit by the applicant describing, as far as he was able to, the collision, (iv) a certificate by the applicant's employer at the time of the collision setting out his period in employment and the level of income he had enjoyed, and also stating that as a consequence of his injuries he is no longer able to work, (v) a copy of a letter from the police indicating the decision by the public prosecutor not to prosecute anyone arising out of the incident because of a lack of information, (vi) a copy of a letter in response thereto by the applicant's attorney pointing out to the police that the required information might be found in the docket related to the theft of the vehicle, (vii) a photograph of the scene of the collision and (viii) a rough sketch plan of the scene. After an exchange of correspondence with the Cape Town office of the Fund, during the course of which the claim form was amended to furnish details of the vehicle which had struck the applicant and particulars of the alleged driver at the time, the applicant's attorney was advised by letter dated 28 August 2008 that the file had been transferred to the 'High Value Department' at the Fund's head office in Pretoria.
[33] It was apparent from the information provided in the claim form that the estimate of the applicant's claim for the cost of future medical expenses would be advised later. In a letter dated 8 September 2008, the Cape Town office of the Fund requested information concerning witness statements, the police accident collision report, the SAPS sketch plan, the applicant's full employment history and the precise amounts claimed in paragraph 8 of the claim form, including advice as to how these amounts were calculated. The applicant's attorney responded to this request by letter dated 22 September 2008. The applicant was not in a position to furnish much of the additional information requested by the Fund. His attorney stated that his claim had not been finally quantified. It was stated that his claim for compensation for loss of earning capacity had not yet been calculated, and could only be determined after reports from medical specialists, an occupational therapist and an industrial psychologist had beenobtained. The attorney indicated that the applicant would be examined by a neurosurgeon and by an orthopaedic surgeon on 21 October 2008 and that he might also need to be seen by a neurologist and a neuropsychologist. It was nevertheless plainly apparent from the information that had already been furnished to the Fund that the first applicant had been gravely injured and seriously incapacitated as a consequence. The Fund had also been furnished by that stage with more than adequate information to undertake whatever investigation it might consider necessary or appropriate in order to determine whether it was liable to compensate the first applicant.

[36] When the Fund made discovery in the action in October 2009, there was no indication that could be discerned in the discovered documentation that the Fund had taken any steps, other than those reflected in the correspondence already mentioned, to investigate the claim. There was also no indication in the discovered documentation that the Fund had, by the time it made discovery, effected payment directly to the Vredenburg and Groote Schuur hospitals at which the applicant had been treated for his injuries.
[37] The applicant's attorneys discovered the direct settlement by the Fund of the 'suppliers' claims' when they made an enquiry to the accounts department at Groote Schuur Hospital in February 2010 to ascertain what amount was outstanding by the applicant to the hospital in respect of his treatment there for the injuries that he had sustained in the collision. The attorney was informed that an amount of R59 222,75 had been paid to the hospital by the Fund and that the balance owed had been written off.

The factual basis of the second applicant's case

[40] The second applicant's claim for compensation was submitted to the Fund on 6 May 2009. She had been injured in a collision which occurred on 5 September 2008 between a taxi, in which she had been carried as a passenger, and another vehicle. She was treated in hospital for her injuries. The after-effects of her injuries have left her unable to continue to work as a domestic worker and also unable, without assistance, to carry out many ordinary daily activities such as cooking, cleaning and dressing herself.
[41] The second applicant's statutory claim form submitted to the Fund was accompanied by (i) copies of the hospital records, (ii) an affidavit by the applicant describing the collision, (iii) an accident report form which included the names and addresses of various persons who were apparently witnesses to the collision, (iv) copies of photographs of the collision scene and (v) a certificate by the applicant's employer at the time of the collision confirming her terms of employment. (The content of the employer's certificate did not establish that the applicant had lost her employment in consequence of her injuries.)
[42] The applicant's attorneys discovered that the Fund had in March 2009 -that is before the applicant had even submitted her claim form - settled an amount in excess of R168 000 owed by the applicant in respect of her treatment at Groote Schuur Hospital. A claim by the health service provider, Netcare, in the sum of R3182,10 had also been settled by the Fund. Attempts by the applicant's attorney to obtain an extracurial agreement by the Fund to admit liability to compensate the applicant were unsuccessful. Summons in the action instituted by the second applicant against the Fund was issued at the beginning of October 2009. The Fund had by 24 November 2009 failed to deliver a plea in the action within the period prescribed in the rules of court, and a notice of bar was served on it. In its plea, delivered on 27 November 2009, the Fund pleaded a denial of the collision and also denied the allegations in the particulars of claim that the applicant had been injured and that she had been earning the amount set out in the employer's certificate that had accompanied her claim form.
[43] As in the case of the first applicant, the schedule to the Fund's discovery affidavit contained nothing to suggest that the Fund had investigated the second applicant's claim, or that it had settled direct suppliers' claims arising out of services rendered as a result of her injuries. The applicant's employer confirmed that she had no recollection of any enquiries having been directed to her concerning the applicant's employment by any person representing the Fund.
[44] The second applicant concluded her founding affidavit with the following averments:

55. It is inexplicable that in a matter as straight-forward as mine, in which I was a taxi passenger, the RAF had not by January [2010] conceded the merits. The assurance of [the Fund's attorney of record in the action]...that he is "awaiting instructions" and will submit a formal Rule 34 tender [i.e. in regard to an interim payment] as soon as we are in a position to do so" offers no comfort whatsoever.
56. It has become clear that the [Fund] does not take seriously its responsibility to administer public funds with efficiency and integrity, and for the benefit of victims of motor vehicle accidents.
57. I am advised and verily believe that the prospect of achieving an early settlement of my claim is bleak. It is apparent that the [Fund] is content to leave me to suffer until I am on the steps of the Court, when, so I am advised and verily believe, it may offer me a "package settlement" well below the value of my claim.

The supporting evidence of the applicants' attorney

[46] Mr Kruger drew attention to some of the judgments mentioned earlier in which the Fund's conduct has been the subject of trenchant judicial criticism and proceeded:

But this is cold comfort for persons in the positions of the First and Second Applicants who need interim payments on an urgent basis. One would have hoped that, faced with a barrage of criticism from the bench, the [Fund] would have changed its ways, rendering further chastisement unnecessary. However, it seems that [the Fund] is quite prepared to continue to absorb punitive costs awards - financed with public funds - and continue with the practices that have attracted such judicial approbation (sic) [?deprecation]. It is this continued recalcitrance that compels Applicants to file this suit. To ask that Applicants herein await trial to raise their grievances (a trial which may be three years hence), not only condemns them to lives of wretched deprivation, it also gives licence to the [Fund] to continue its practice of foot-dragging, evasion and cynical avoidance.

[47] The applicants' attorney described a meeting that he and a number of other practitioners involved in MVA work had attended with the local management of the Fund in Cape Town in January 2010. At this meeting, according to Mr Kruger, the attorneys had been informed that the Fund was experiencing difficulty obtaining payment timeously from the National Treasury of the funding to which it was entitled based on the recovery of fuel levies. This, the legal practitioners had been informed, inevitably delayed the settlement of claims. Mr Kruger averred that the attorneys were also told that only one official of the Fund had the authority to agree in litigious matters to a concession of the issue of liability so as to leave only the quantum of a claim in issue. That this was the manner in which the Fund dealt with the separation of liability and quantum of damages issues in litigious cases, at least historically, is borne out by the content of an affidavit made by its chief executive officer in February 2009 in proceedings before the late Natal Provincial Division of the High Court, which was introduced in evidence before us.
[48] Mr Kruger referred to the settlement of direct supplier claims in respect of the treatment of the first and second applicants for the injuries sustained by them in collisions and questioned the legal basis for the making of such payments in the context of an apparent absence of any investigation by the Fund into the issue of liability and its pleaded denial of liability in the actions.

The Fund's answer to the first and second applicants' applications

[49] The Fund's answering affidavit was deposed to by its acting chief executive officer, Mr Andre Gernandt. He sought to explain that an investigation had been required into the merits of the first applicant's claim before there could be any question of the Fund admitting liability to compensate him. There was, however, no meaningful description of what that investigation entailed, or when it was undertaken. There was no explanation whatsoever as to why it was only on 17 September 2010 that the Fund formally conceded liability in the first applicant's claim, or as to why instructions to concede liability to the second applicant were given to the Fund's attorneys only on 31 May 2010. On the established facts there was no justification for the delay. We are thus left with the strong impression that there is probably substance in the contention by the applicants' legal representatives that the concession was made as a consequence of the pressure exerted by the institution of the current proceedings, which, whatever their merits or lack thereof, were no doubt recognised by the Fund's management to constitute a cause for embarrassment.
[50] It is no explanation for the delays in admitting liability to compensate the first and second applicants for any damages that they are able to prove for the Fund to say that its pleaded denials of liability in the actions brought against it were predicated on the Fund's duty to responsibly and properly investigate and establish the factual grounds for its liability before making any admission. As described earlier in this judgment, the Fund is afforded a period of about four months after receipt of a claim to undertake its investigations. In the cases of the first and second applicants, the indications are that the Fund dissembled, rather than fulfilling its duty of investigation. If it had properly discharged its responsibilities, it should have been in a position to admit liability even before the litigation against it was instituted.

[52] While one can understand that a rigorous investigation of each and every one of large volumes of low value supplier claims might be impracticable, there is no understanding why payment in respect of any supplier claim should be made before liability to the third party to whom the supplier claim relates has been admitted. The disparity between the number of supplier claims (124 584) lodged during the financial year prior to the deposition by Mr Gernandt to the answering affidavit and the number of third party claims (85 397) submitted during the same period would suggest that, on average, there are less than two supplier claims received per third party claim. In a further affidavit, made only a few days before the applications were heard, Mr Gernandt explained that his initial answering affidavit had misstated the Fund's policy in respect of the payment of supplier claims and conceded that even large supplier claims were routinely paid while liability towards the third parties to whose treatment they related was being denied. It was evident from documentation secured by the applicants from the Fund by way of compelled further discovery that the hospital expense claims had in fact been vouched by supporting documentation provided by the suppliers' agent, which, on their face, supported the conclusion that the Fund was liable to the affected third parties on the investigated and determined facts of the respective motor vehicle collisions to which those parties' claims were connected.
[53] The payment of direct suppliers while payment of the related personal claims of third parties is delayed or refused amounts to unequal treatment before the law and infringes the third parties' right to equality.

[56] The acting chief executive officer of the Fund initially denied that it was, or had ever been the policy of the Fund not to make settlement offers until 20 days before trial in a claim subject to a court action. That averment was quite extraordinary in the context of a written instruction to that effect issued to all regional mangers of the Fund on 28 August 2008 (less than a month before the first applicant's attorney's letter referred to in para [34], above). The Fund had, a few weeks earlier, also issued an internal instruction that its staff members were not to make tenders of settlement in litigious matters before a trial date had been set. These policies were withdrawn only after litigation had been instituted against the Fund to have the instructions declared unlawful. Mr Gernandt explained the error in his initial answering affidavit by stating that he had been unaware of the facts, having taken up his current position only in January 2010. It remains regrettable, to say the least, that the acting chief executive officer of the Fund could have made these unfounded denials under oath without properly verifying that he had good reason to do so. Whether the fault was his personally, or due to bad briefing by his support staff, we cannot say.

[58] The evidence, judged in historical context, suggests that the delays in conceding liability in principle are a means by the Fund to manage cashflow issues. The Fund admits as much. This is unacceptable. A state of affairs in which an organ of state is unable to discharge its statutory objects because of inadequate funding is inimical to the rule of law and deserves urgent and appropriate attention from the executive and the legislative arms of government. The recent amendments to the Act are, no doubt, a manifestation of such attention, but it seems that more might be required. Financial constraints on the Fund's ability to pay claims as immediately as it should afford no excuse, however, for the failure to administer the claims received efficiently, or for drawing out litigation and driving up legal costs by what is sometimes euphemistically described as 'tactical pleading'.

[60]   The funding of the Fund is provided for in terms of s 5 of the Act:
5        Financing of Fund
(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
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.

[62] It is readily conceivable that the 2005 amendments to s 5 of the Act may have impacted on the Fund's cashflow. On the superficial evidence to hand in respect of funding issues we are, however, unable to determine whether or not this has in fact been the case. We are also not able to find, one way or the other, whether the legislative amendments contributed in any manner to the need for government to make extraordinary funding contributions to the Fund in March 2006 and again in 2009. The testimony of Mr Gernandt suggests, however, that the difficulty with funding arises simply out of a disparity between the amount of monies generated by the fuel levy and that required to settle current third party claims; and that the problem had manifested as early as 2004.

The legal characterisation of the relief sought by the first and second applicants

[70] Whether the first and second applicants' claim is founded in PAJA, or not, is not a critical question. Assuming in favour of the respondents that the claim finds no basis in PAJA, it does not follow, if the Fund's manner of processing their claims infringed their constitutional rights, that the applicants would not be entitled to apply to court for a declaration of rights and ancillary relief, including constitutional damages. Irrespective of whether the claim resorts under PAJA, or falls outside that Act, declaratory relief, and also an attendant interdict or an award of administrative or constitutional damages is discretionary in nature.

The appropriateness of granting declaratory relief to the first and second applicants

Interdictory relief

[75] Having regard to the stage that the first and second applicants' claims against the Fund have progressed in the pending actions, and assuming (against my inclination to hold to the opposite effect) that there might otherwise have been a sound basis in principle to grant such relief, there would, in my judgment, be nothing to be served at this juncture by making the mandatory and structural interdictory orders sought in the notice of motion.

Constitutional damages

[79] In my view, the interests of justice and the vindication of the applicants' infringed constitutional rights are adequately served by the declaratory relief that we have found should be granted. If relief sounding in money were to be awarded for the infringement of the applicants' rights, it would serve as an indication that equivalent relief should be available to an indeterminate of other third party claimants whose claims are being delayed by the Fund's failure to fulfil its statutory object in faithful compliance with the requirements of the Act. (That there is probably a significant number of such other claimants can be inferred from the Fund's effective admission that it delays the processing of claims as a cashflow management measure.) The financial consequences of such a course would in the greater scheme be indeterminable on the information available to us. It is undesirable, at least at this stage of what might be regarded as the judicial dialogue - through the series of judgments mentioned earlier - with the other arms of government in respect of the functioning of the Fund, to impose, with unpredictable effect, a further financial burden on an apparently under-resourced social security utility. The disposition of the courts in this regard might have to be reconsidered if the situation of endemic shortcoming by the Fund in the fulfilment of its statutory object in a legally compliant manner continues despite what is intended to be the clear message to be conveyed by the declaratory orders that are to be granted in favour of the first and second applicants. For now, however, I do not consider that an award of constitutional damages would be an appropriate remedy.
[80] I would in any event, in general, regard it as undesirable, in the context of third party claims that are the subject of litigation to exact payment of the statutorily provided compensation, that any claim for constitutional damages that might be instituted as a consequence of the Fund's non-fulfilment of its statutory object should be pursued separately from the delictual action.   The proper determination of such a claim, and, if it were to be found that the award of such damages would be appropriate, its amount, would be assisted by its being tried and judged together with the statutory claim.

The third applicant's case

[81] It is now time to address the application of the third applicant. 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. She is alleged to have sustained severe injuries to her lower leg. It is not altogether clear whether these involved a fractured tibia and fibula, or a fractured ankle. It is alleged that as a consequence of her injuries the third applicant now has to walk with the assistance with a crutch and that she is unable to move quickly or for any great distance. As a result, she avers that she is unable resume her work as a tout, an occupation which requires her to run about physically in search of potential passengers.
[82] The third applicant avers that her unemployment as a consequence of the effect of the injuries sustained in the collision has had a profound impact. Her only income is a disability grant of R1,010.00 per month, which is insufficient to provide adequately for her needs and those of her dependent son. The effect of her injury-induced disability is exacerbated given her living conditions. She shares a one bedroom house with her son. The house has no running water or sanitation; these facilities are housed in a temporary structure outside the house.
In addition, her restricted mobility means that she is no longer able to shop for food and other necessities at bigger shopping centres as she once did. She is constrained to make her purchases at smaller shops in close vicinity to the place where she lives. The prices at these local shops are more expensive than at the shopping centres. The third applicant also alleges that her relative immobility exposes her, to a greater extent than in her pre-morbid state, to attack by the antisocial elements that prowl the streets in the area in which she lives. The third applicant contends that the impact of 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. On the basis of the aforegoing, the third applicant contends that her injuries have resulted in a serious long-term impairment or loss of a body function. She proposes to claim compensation in general damages for 'non-pecuniary loss'.

'a) Assessment of a serious injury shall be based on a prescribed method adopted after consultation 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).'
[84] Section 26 of the Act provides that the Minister of Transport may make regulations to prescribe any matter contemplated by the Act. Subsection 26(1 A) deals in particular with the assessment of 'serious injuries'. It provides:

'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.'
Section 26(2) provides that any regulations made in terms of s 26(1 A) must be made after consultation with the Minister of Health.

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.

(I)	…......

(aa) resulted in a serious long-term impairment or loss of a body function;
(bb) constitutes permanent serious disfigurement; resulted in severe long-term mental or severe long-term behavioural disturbance or disorder; or resulted in loss of a foetus.

(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.
(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.

[90] After, Mr Kruger, the third applicant's attorney, had written an understandably pointed response to the Fund's letter of 9 April 2010, the Fund replied on 19 April 2010 declining the request for financial assistance in respect of the serious injury assessment. In its letter of 19 April, 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'. The author of the Fund's letter continued that upon a consideration of the content of the statutory medical report in the third applicant's completed claim form it had been concluded that the applicant's injuries were not serious enough to warrant the Fund accepting liability for the costs of a serious injury assessment.
[91] It has to be said in the Fund's defence that the statutory medical report completed in respect of the third applicant's claim was singularly uninformative. It did, however, serve to alert the reader to the fact that the claimant had been treated at the JG Jooste Hospital; and the hospital notes had also accompanied the claim form. A consideration of the hospital notes would, as far as we are able to discern, inform the reader that the third applicant had sustained a fracture at the lower part of her leg and that some complications had arisen in the course of the treatment of the applicant within the month following the date of the collision. Assuming that a fractured leg falls well short of founding a finding of 30% whole body impairment on the AMA Guides - as seems likely - the information given in the hospital notes seems to be insufficient to permit an assessment of whether or not the narrative test might provide a viable alternative gateway to general damages. It must be said, therefore, that the application to the Fund to carry the cost of the serious injury assessment would probably have been assisted by some form of cogent motivation in support of the allegedly serious effect of the injury sustained on the applicant's amenities of life. The attorney's letter in terms of which the applicant's request in terms of regulation 3(2)(b) was submitted to the Fund was sadly lacking in this respect.

requesting assistance in terms of regulation 3(2)(b) when the need for such further information is apparent.
found a claim for compensation. A serious injury assessment report, by contrast, is a statutory pre-requisite to the prosecution of a claim for general damages. Its requirement is an incidence of the limitation of constitutional rights discussed earlier in this judgment. Consequently, there is an obligation on the Fund, as the relevant organ of state, to conscientiously consider requests for funding in terms of s 3(2)(b), and, when the information submitted in support of such requests appears deficient, to request that it be supplemented before any decision is made in respect of the application. I have already remarked on the inadequacy of the information to support the request, but the very nature of the inadequacy called out for further information to be provided before the request was declined. No attention appears to have been given in the exercise to the averment by the third applicant in the affidavit accompanying her statutory claim form to the effect that she was unable to continue with her work. The affidavit was made quite soon after the collision and was obviously not conclusive on the subject, but enquiry should have been made by the Fund of the applicant as to whether the sequelae of her injuries still prevented her from working. In the context of a claimant engaged in a menial or unskilled occupation, the indication of an inability to work as a consequence of the effect of injuries sustained bears possible implications in respect of the impact on the claimant's life going wider than only loss of earning capacity. There is no indication that the staff member of the Fund responsible for processing the third applicant's request in terms of regulation 3(2)(b) applied his or her mind to the need to ask the applicant for further information before the request could properly be determined.

[97] Thus it is evident that in declining the third applicant's request in terms of regulation 3(2)(b), the Fund (i) acted in a manner that was procedurally unfair, (ii) was materially influenced by an error of law, (iii) acted in a manner not rationally connected to the empowering provision and (iv) exercised its power unreasonably in the sense contemplated in s 6(2)(h) of PAJA. The decision by the Fund to refuse the third applicant's request in terms of regulation 3(2)(b) consequently falls to be reviewed and set aside. The request must be reconsidered by the Fund with proper regard to the provisions of regulation 3 of the Road Accident Fund Act Regulations (2008) and in the light of this judgment. Lest there be any misunderstanding in the latter regard, it bears emphasis that this judgment has, in the respects relevant, gone only to the manner in which the third applicant's request was dealt with by the Fund. It has not purported in any way to suggest what the result of the request should be on a proper consideration.

Striking out application

[98] In conclusion it should be mentioned that the Fund applied for the striking out of certain matter in the applicants' replying papers. The exchange of further affidavits between the parties appears to have cured any prejudice to which the Fund might have been exposed in consequence of the matter sought to be struckout, and it has therefore not been necessary to determine the striking out application. There will be no order as to costs in the striking out application.

Costs

Orders
[100] The following orders are made:
(a)	In respect of the applications by the first and second applicants:
(i)	It is declared that the failure by the Road Accident Fund to timeously, in accordance with the provisions of the Road Accident Fund Act 56 of 1996, investigate and determine its liability in respect of the third party claims submitted by the applicants resulted in an unlawful infringement of the applicants' rights under the Bill of Rights to equality, human dignity, security of the person, social security and just administrative action.
(ii)	The first respondent is directed to pay the applicants' costs of suit, including the costs of two counsel.

(b)	In respect of the application by the third applicant:

(i)	The decision by the first respondent to decline the third applicant's request in terms of regulation 3(2)(b) of the Road Accident Fund Regulations (2008) is reviewed and set aside.
(ii)	The first respondent is directed to reconsider the said request with
proper regard to the provisions of regulation 3 of the Road Accident
Fund Act Regulations (2008) and in the light of this judgment.
(iii)The first respondent is directed to pay the third applicant's costs of suit, including the costs of two counsel.
(c) No order is made in respect of the first and third respondents' application to strike out, dated 3 February 2011.

A.G. BINNS-WARD

Judge of the High Court

I concur.

D.H. ZONDI

Judge of the High Court

Before :    ZONDI J and BINNS-WARD J 
Heard:      16 February 2011 
Judgment 28 April 2011

Applicant's counsel: JC Heunis SC 
M. Osborne 
L. Ferreira

Third Respondent's
Counsel	DR Mitchell SC
N Mayosi

Applicant's attorneys	Kruger & Co

Third respondent's attorneys Edward Nathan Sonnenberg, Cape Town