THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 285/2016

In the matter between:

NTSIENI JOSEPHINE MANUKHA

APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

Neutral Citation:
Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21
(24 March 2017)
Coram:

Leach, Tshiqi, Theron, Petse JJA and Molemela AJA
Heard:

20 February 2017
Delivered:

24 March 2017

Summary:
Road Accident Fund Act 56 of 1996: ss 17(1); 23 and 24 read
with regulation 3(3)(b)(ii): Damages: motor vehicle accident: claim for compensation
against Road Accident Fund: non-pecuniary loss forming part of a unitary claim for
compensation and not constituting a separate and discrete claim: prescription: late
filing of RAF4 form thus not constituting separate claim, and consequently, claim for
damages for non-pecuniary loss not prescribed.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  Limpopo Local Division of the High Court, Thohoyandou
(Kganyago AJ sitting as court of first instance):
1 The appeal is upheld with costs.
2 The order of the high court is set aside and substituted with the following:
‘The special plea of prescription is dismissed with costs.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Petse JA (Leach, Tshiqi, Theron JJA and Molemela AJA concurring):

[1] This appeal concerns the question whether a claim for general damages in
terms of s 17(1)(b) of the Road Accident Fund Act 56 of 1996 (the Act) had
prescribed, due to the fact that the serious assessment report incorporated in the
RAF4 form was lodged outside of the time period allowed for the issuing of summons
under s 23(3) of the Act ie more than five years from the date on which the cause of
action arose.

[2] The appeal arises from the following factual background. On 14 August 2008
the appellant, Ms Ntsieni Josephine Manukha, was a passenger in a motor vehicle
travelling on the Mavhoi Road in Limpopo. The motor vehicle overturned allegedly as
a consequence of the negligence of the driver of a passenger bus and the appellant
suffered personal injuries.

[3] Subsequently, in July 2011, the appellant (as the plaintiff) instituted an action
in the Limpopo Local Division of the High Court for compensation arising out of the
accident in terms of s 17(1) of the Road Accident Fund Act 56 of 1996 (the Act)
against the respondent (the Road Accident Fund). The Fund was established under

the Act1 and its object is the payment of compensation for loss or damage wrongfully
caused by the driving of motor vehicles.2 It was alleged in her particulars of claim
that she had, inter alia, suffered a fracture of her left radius and ulna, and sustained
bruises on her hand. She accordingly claimed damages in the sum of R700 000, of
which R200 000 was for non-pecuniary damages. The particulars of claim also
indicated that she ‘complied with the provisions of s 24 of the Act by lodging the
prescribed form and documentation’.

[4] The Act prescribes certain requirements relating to lodgement of claims for
compensation against the Fund. It is apposite at this early stage to set these out first
before turning to the further background facts. The liability of the Fund to
compensate third parties for damages arising from the driving of a motor vehicle is
set out in s 17 of the Act, which provides that:
‘17 (1) The Fund or an agent shall-
(a)   subject to this Act, in the case of a claim for compensation under this section arising
from the driving of a motor vehicle where the identity of the owner or the driver thereof has
been established;
(b)   subject to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving of a motor vehicle where the identity
of neither the owner nor the driver thereof has been established,
be obliged to compensate any person (the third party) for any loss or damage which the third
party has suffered as a result of any bodily injury to himself or herself or the death of or any
bodily injury to any other person, caused by or arising from the driving of a motor vehicle by
any person at any place within the Republic, if the injury or death is due to the negligence or
other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee
in the performance of the employee's duties as employee: Provided that the obligation of the
Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for
a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.
(1A) (a) Assessment of a serious injury shall be based on a prescribed method adopted after
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 56 of 1974.’

1 Section 2 of the Act.
2 Section 3 of the Act.

[5] Section 24 of the Act provides that a claim for compensation, which must be
accompanied by a medical report, shall, inter alia, be set out in the prescribed RAF1
claim form which shall be completed in all its particulars.3 A medical report is also to
be completed on the prescribed form by the medical practitioner who treated the
injured person for the bodily injuries sustained in the accident from which the claim
arises.4

[6] Prescription of a claim is regulated by s 23, which in material parts, provides
that:
‘23(1) Notwithstanding anything to the contrary in any law contained, but subject to
subsections (2) and (3), the right to claim compensation under section 17 from the Fund or
an agent in respect of loss or damage arising from the driving of a motor vehicle in the case
where the identity of either the driver or the owner thereof has been established, shall
become prescribed upon the expiry of a period of three years from the date upon which the
cause of action arose.
. . .
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 17
(4) (a) or 24 shall prescribe before the expiry of a period of five years from the date on which
the cause of action arose.’

[7] It is also apposite at this stage to refer to regulation 3(3)(b)(i) of the Fund’s
regulations5 promulgated in terms of s 26 of the Act. It reads:
‘(b)   A claim for compensation for non-pecuniary loss in terms of section 17 of the Act shall
be submitted in accordance with the Act and these Regulations, provided that:
(i)   the serious injury assessment report may be submitted separately after the
submission of the claim at any time before the expiry of the periods for the lodgement of the
claim prescribed in the Act and these Regulations.’

[8] Reverting to the factual matrix, during January 2009 the appellant lodged her
RAF1 claim form with the Fund. Paragraph 22 of the RAF1 claim form, being the
medico-legal report which s 24(2) of the Act requires to be completed by the medical
practitioner who treated the appellant for the bodily injuries she sustained, was left
blank. And as stated earlier, the compensation claimed by the appellant incorporated

3 Section 24(1)(a) of the Act.
4 Section 24(2)(a) of the Act.
5 Promulgated in the Road Accident Fund Regulations G N R770, GG 31249 dated 21 July 2008.

a claim relating to non-pecuniary loss. The proviso to s 17(1)(b) provides that the
obligation of the Fund to compensate for non-pecuniary loss shall be limited to
compensation for a serious injury as contemplated in subsection (1A).

[9] That subsection (ss 17(1A)(a) and (b)) provides that the assessment of a
‘serious injury’ shall be based on a prescribed method and shall be carried out by a
medical practitioner registered under the Health Professions Act 56 of 1974. The
prescribed method is catered for in the regulations. To constitute ‘serious injury’ the
injuries must meet a threshold of 30 per cent of what the regulations describe as
‘Impairment of the Whole Person’ or specified permanent or long-term impairments.

[10] Both the Act and the regulations require that a third party who claims for non-
pecuniary loss furnish the Fund with a serious injury assessment report in an RAF4
form. The RAF4 form need not be submitted to the Fund simultaneously with the
RAF1 form.

[11] The dismal state of the RAF1 form submitted on behalf of the appellant
elicited a response from the Fund on 1 July 2009 wherein it, inter alia, alerted the
appellant’s attorneys to the fact that there was no serious injury assessment report to
substantiate the claim for non-pecuniary loss, as required by the Act and the
regulations. The appellant’s attorneys did not respond until on 26 July 2014 (which
was more than five years from the date on which the appellant’s cause of action
arose) when they belatedly served the RAF4 form on the respondent’s attorneys.
According to this report, prepared by a Dr Monyai on 3 May 2014, the appellant was
assessed to have suffered 36 per cent ‘Whole Person Impairment’. The report
indicated that the appellant sustained head injuries. The narrative test was prepared
by Dr Kumbirai who concluded that the appellant’s injuries had, inter alia, resulted in
serious long-term impairment or loss of bodily function.

[12] As already mentioned, long before she submitted the RAF4 form, the
appellant had instituted action against the Fund in which she, inter alia, claimed
payment of R200 000 representing non-pecuniary loss for pain and suffering which
she had included in her RAF1 form (albeit for a lesser amount). The Fund raised a

special plea of prescription relative to the claim for non-pecuniary loss. It asserted
that:
‘The [appellant] had failed to provide the [respondent] with the RAF4 serious injury
assessment report timeously as same should have been submitted by 13 August 2013.’

[13] At the trial the high court heard the parties on the issue raised in the
respondent’s special plea only. How this came about is not clear from the record.
There was, for example, no evidence led at the trial. Nor was there any statement of
agreed facts prepared for adjudication by the high court as contemplated in Uniform
Rule 33.6 Had that approach been adopted by the parties and sanctioned by the high
court it would then have become necessary for the court to make an order to that
effect. We were, however, informed by the appellant’s attorney that the salient facts
as to when: (a) the RAF1 and 4 forms were submitted to the Fund; and (b) the action
was instituted against the Fund as encapsulated above were common cause
between them. And that it was on that basis that the high court dealt with the matter.

[14] The high court, having heard argument, upheld the special plea with costs.
Most significantly, the high court considered that the pertinent question to be asked
was ‘whether the serious injury assessment report should have been lodged with the
defendant within a period of five years’. After considering the import of s 23(1) and
regulation 3(3)(b)(i), and noting that the regulations do not deal with prescription, the
high court concluded that the appellant’s claim for non-pecuniary loss had prescribed
under s 23(3) of the Act because her RAF4 form was submitted after the expiry of a
period of five years from the date on which her cause of action arose. Consequently,
the high court upheld the special plea with costs. It subsequently refused leave to
appeal but made no order as to costs. The appeal before us is with the leave of this
court.

6 In terms of rule 33(1) of the Uniform Rules of Court, parties to a dispute may agree upon a written
statement of facts in the form of a special case for the adjudication of points of law. This statement
sets out the facts agreed upon and the questions of law in dispute between the parties, as well as
their contentions. Rule 33(3) gives the court the discretion to draw any inference of fact or law from
the facts and documents as if proved at trial. See in this regard:  Mighty Solutions t/a Orlando Service
Station v Engen Petroleum Ltd & another [2015] ZACC 34; 2016 (1) SA 621 (CC) para 61, and Bane
& others v D'Ambrosi [2009] ZASCA 98; 2010 (2) SA 539 (SCA) para 7 where this court said that rule
33(1) and (2) made it clear that the resolution of a stated case proceeds on the basis of a statement
of agreed facts, and is, after all, seen as a means of disposing of a case without the necessity of
leading evidence.

[15] At the hearing of the appeal we were informed by counsel from the bar that
liability in relation to all of the other components of the appellant’s claim (barring non-
pecuniary loss) was ultimately conceded by the Fund. Accordingly, what remains in
contention is the claim relating to the appellant’s non-pecuniary loss.

[16] It is thus only necessary to determine whether the appellant’s lodgement of
the RAF4 form with the Fund in substantiation of her claim for non-pecuniary loss
can be defeated by a defence of prescription. The claim for non-pecuniary loss was
also listed in her RAF1 form which was lodged with the Fund during January 2009
(after a period of four and a half months from the date on which her cause of action
arose). But the RAF4 form itself was submitted after the expiry of a period of five
years. This is what lies at the heart of this case.

[17] The judgment of the high court was assailed by counsel for the appellant on
several grounds. Significantly, it was contended that the high court erred in
concluding that the appellant’s claim in respect of general damages had prescribed
when in fact a claim therefor had been lodged within a period of three years from the
date on which the cause of action arose (s 23(1) of the Act). And that an action in
pursuit of that claim was instituted within a period of five years as provided for in
s 23(3) of the Act.

[18] The Fund, however, contended that it was incumbent upon the appellant to
lodge the RAF4 form within ‘the extended period of five years’ from the date on
which her cause of action arose. And that the appellant’s failure to do so, so the
argument continued, meant that she had no claim against the Fund in respect of
non-pecuniary loss. Thus, so the argument went, as it was common cause that the
RAF4 form was lodged on 14 August 2014 after the expiry of a period of five years
from the date of the accident, it followed that whatever claim for non-pecuniary loss
that the appellant may have had prescribed on 13 May 2013. Before us, counsel for
the Fund accepted, rightly so, that the appellant had but one unitary claim for
compensation against the Fund arising from the accident that occurred on 14 August
2008.

[19] To my mind, on a proper reading of the Act and the regulations, the Fund’s
contentions cannot be sustained. First, s 17 of the Act makes reference to ‘a claim
for compensation’ and not multiple claims. In addition, s 17 provides that the Fund is
obliged to compensate a third party for non-pecuniary loss in respect of serious
injury only. The serious injury is required to be assessed as provided for in the
regulations. Second, s 24 of the Act in turn provides for the lodgement of such ‘a
claim’ and the requirements that the third party must meet in lodging ‘the claim’.
Third, s 23(1) of the Act which pertinently deals with prescription talks of ‘a right to
claim compensation under s 17 from the Fund’. In particular, s 23(3) provides that no
claim (in singular) lodged in terms of s 17(4)(a) or s 24 shall prescribe before the
expiry of a period of five years from the date on which the cause of action arose, and
the appellant had instituted action within that period. Fourth, regulation 3 (3)(b)(i)
provides that the serious injury assessment report may be submitted separately from
the submission of the claim itself. Implicit in this is that ‘the claim’ exists
independently of ‘the assessment report’. Thus the claim (inclusive of a claim for
non-pecuniary loss) may be submitted in terms of s 24 of the Act without the ‘serious
injury assessment report’. And, as the high court correctly observed, there is nothing
in the regulations dealing with prescription, which is dealt with exclusively by the Act.

[20] In Nonkwali v Road Accident Fund [2008] ZASCA 8; 2009 (4) SA 333 (SCA)
para 8, this court, with reference to judgments of this and other courts, said:
‘Authorities are legion to the effect that a plaintiff who claimed compensation for damages
sustained as a result of wrongful and negligent driving under the Act's predecessors had but
a single, indivisible cause of action and that the various items constituting the claim were
thus not separate claims or separate causes of action. This interpretation, in my view,
necessarily extends to claims brought under the Act as it has the same objective and effect
as these previous statutes.’ (Footnotes omitted.)
(See also the unreported judgment in Van Zyl v Road Accident Fund 2012 JDR 0972
(GSJ).) It suffices to point out that in view of the Fund’s belated acceptance that the
appellant had a unitary and indivisible claim it is not necessary to belabour that point
in this judgment.

[21] In the light of the aforegoing the special plea raised by the Fund should not
have been upheld by the high court. At best for the Fund it was entitled to a stay of

that part of the appellant’s claim relating to compensation for non-pecuniary loss until
the process set out in regulation 3 had been complied with by the appellant. (See in
this regard Road Accident Fund v Duma and Three Similar Cases [2012] ZASCA
169; 2013 (6) SA 9 (SCA) para 40; Road Accident Fund v Lebeko [2012] ZASCA
159; 2012 JDR 2176 (SCA) paras 28-32. See also regulation 3(3)(c)  which makes
plain that the Fund shall only be obliged to compensate a third party for non-
pecuniary loss as provided in the Act if a claim is supported by a serious injury
assessment report submitted in terms of the Act and the regulations and the Fund is
satisfied that the injury has been correctly assessed.)

[22] What can be inferred from the narrative set out above is, inter alia, that upon
receiving the RAF4 form the Fund adopted the stance that as it was served after the
expiry of a period of five years from the date of the accident, the claim for non-
pecuniary loss should be left out of the reckoning. In light of what has been said
above, the Fund was mistaken in adopting such attitude. In the ordinary course, the
regulations provide that when the Fund receives an RAF4 form it must do one of two
things. It may either accept it and then deal with the claim on that basis, or reject the
RAF4 form if it is not satisfied that it complies with the Act and the regulations. In the
latter event, it must, (a) in terms of regulation 3(3)(d)(i) provide reasons for doing so;
or (b) it may, if it is not satisfied with the medical assessment, direct that the
appellant submits herself to a further assessment at the Fund’s expense by a
medical practitioner designated by the Fund as provided in regulation 3(3)(d)(ii). If,
notwithstanding this process, the Fund rejects the RAF4 form, the regulations
provide for an extensive procedure that would be triggered in the event that the third
party wishes to contest the rejection of the RAF4 form. (See, in this regard, Road
Accident Fund v Duma and Three Similar Cases para 7.) But for the present
purposes nothing more need be said on that score. It remains only to emphasise that
the Act and the regulations do not contemplate that a claim for non-pecuniary loss
will prescribe if the RAF4 form is delivered outside of the period of prescription,
should prescription have earlier been interrupted by the institution of proceedings.

[23] It is necessary to comment on the state of the Fund’s heads of argument. Its
heads of argument comprise 11 pages, but all of the even numbered pages are
missing. When this shortcoming was brought to counsel’s attention at the hearing he

could offer no intelligible explanation as to how this came about. Accordingly, the
conclusion is inescapable that no proper consideration was given to the preparation
and collation of the respondent’s heads of argument. To my mind, counsel’s
remissness is deserving of the strictest censure from this court. It must therefore be
said without equivocation that the time will come when this court will be less tolerant
of counsel who continue to be content with work that can only be described as
shoddy.7

[24] Accordingly, the appeal must succeed. In the result the following order is
made:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and substituted with the following:
‘The special plea of prescription is dismissed with costs.’

______________________
X M PETSE
JUDGE OF APPEAL

7 Rule 10 of the rules of this court clearly set out the manner in which heads of argument must be
prepared in this court. It would be useful for counsel to revisit these rules, and also bear in mind the
suggestions by the former Deputy President Harms in an article titled ‘Heads of argument in courts of
appeal’
accessible
on
www.sabar.co.za/law-journals/2009/.../2009-december-vol022-no3-pp20-
22.pdf.

APPEARANCES:

For the Appellant:

S O Ravele.
Instructed by:
S O Ravele Attorneys, Makhado.
c/o Phatshoane Henney Attorneys, Bloemfontein.

For the Respondent:

T C Maphelela.
Instructed by:
Noko Maimela Attorneys, Burgersford.
c/o Matsepes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

24 March 2017

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21 (24 March 2017)

MEDIA STATEMENT

The Supreme Court of Appeal today upheld an appeal against a judgment of the Limpopo Local
Division of the High Court, Thohoyandou. The issue on appeal was whether a claim for non-pecuniary
damages in terms of s 17(1)(b) of the Road Accident Fund Act 56 of 1996 (the Act) had prescribed,
due to the fact that the serious assessment report incorporated in the RAF4 form was lodged outside
the time period allowed for the issuing of summons.

The appellant, Ms Manukha, was injured whilst a passenger in a motor vehicle travelling on a public
road in Limpopo, allegedly as a result of the negligence of the driver of a passenger bus in 2008. She
suffered personal injuries, and as a result lodged action proceedings and claimed compensation,
including non-pecuniary damages in the sum of R700 000. Of this amount, R200 000 constituted non-
pecuniary damages. Her summons was issued timeously. However, she only submitted her RAF4
form, which is required in respect of the non-pecuniary damages, outside the five year period after the
accident occurred. The Fund raised a special plea of prescription, claiming that the serious injury form
ought to have been delivered by 13 August 2013 (and not on 26 July 2014 – as Ms Manukha did).
The high court agreed with the Fund.

The SCA held that the relevant provisions of the Act it considered, namely ss 17(1), 23 and 24, read
with regulation 3 (3)(b)(ii), all indicate that a claim for non-pecuniary loss forms part of a unitary claim
for compensation, and does not constitute a separate discrete claim. The late filing of the serious
injury form did not constitute a separate claim, and thus, Ms Manukha’s claim had not prescribed as
she had instituted action within five years from the date on which her cause of action arose.

--- ends ---