THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 698/16

In the matter between:

NOBANTU GLORIA MPAHLA
APPELLANT

and

THE ROAD ACCIDENT FUND
RESPONDENT

Neutral Citation:
Mpahla v RAF (698/16) [2017] ZASCA 76 (1 June 2017)
Coram:
Lewis, Ponnan, Petse and Mathopo JJA and Coppin AJA
Heard:
15 May 2017
Delivered:
1 June 2017
Summary:
Road Accident Fund 56 of 1996 – Interpretation of
regulation 3(3)(dA) of the Road Accident Fund Regulations – failure of the
Fund to take a decision within prescribed period does not create a deeming
provision – remedy of claimant lies in s 6(2)(g) of PAJA.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: The Western Cape Division of the High Court, Cape Town
(Schippers J) (sitting as court of first instance):
The appeal is dismissed with costs.
______________________________________________________________

JUDGMENT
______________________________________________________________

Mathopo JA (Lewis, Ponnan and Petse JJA and Coppin AJA
concurring):

[1] This is an appeal against the judgment of the Western Cape Division of
the High Court, Cape Town, to which for convenience I shall refer as the high
court, (Schippers J) on a question of law decided against the appellant. The
matter proceeded before the high court by way of a stated case. The question
of law concerned the interpretation of regulation 3(3)(dA) of the Road
Accident Regulations,1 passed pursuant to the Road Accident Fund Act 56 of
1996, which requires the Fund to accept or reject a ‘Serious Injury
Assessment’2 report (SIA report) or to direct the third party to submit to a
further assessment, within 90 days from the date on which the report was
delivered to the Fund. The appeal is against that finding, on the stated case,
is with the leave of that court.

[2] The appellant contended before the high court that on a proper
construction of regulation 3(3)(dA), the Fund is deemed to have accepted that
the appellant sustained a serious injury, because it did not reject the SIA

1 Published under Government Notice R770 in Government Gazette 31249 of 21 July 2008,
as amended by Government Notice R347 in Government Gazette 36452 of 15 May 2013 (the
Regulations).
2 Discussed fully in Road Accident Fund v Duma, Road Accident Fund v Kubeka, Road
Accident Fund v Meyer, Road Accident Fund v Mokoena [2012] ZASCA 169; 2013 (6) SA 9
(SCA).

report or direct the appellant to submit to a further assessment within 90 days
of delivery of the report, which expired on 26 January 2014.

[3] Regulation 3(3)(dA) provides as follows:
‘The Fund or an agent must, within 90 days from the date on which the serious injury
assessment report was sent by registered post or delivered by hand to the Fund or
an agent who in terms of section 8 must handle the claim, accept or reject the
serious injury assessment report or direct that the third party submit himself or herself
to a further assessment.’

[4] The following facts are common cause. On 5 July 2013 the appellant
instituted an action in terms of the Act for damages she allegedly suffered as
a result of the injuries she sustained in a motor vehicle collision that occurred
on 18 November 2011. One of her claims was for non-pecuniary loss or
general damages in an amount of R400 000. On 28 October 2013, in
compliance with regulation 3(3) and the Act, the appellant caused an SIA
report) to be submitted to the Fund. Even though regulation 3(3)(dA) applied,
the Fund failed to react to the appellant's SIA report within 90 days as
contemplated in that regulation. The 90-day period expired on 26 January
2014. It was only on 17 January 2015 that the Fund reacted to the SIA report
by rejecting it. The Fund conceded the issue of negligence and undertook to
compensate the appellant for the other heads of damages but continued to
resist and deny liability for general damages.

[5] Regarding the claim for general damages, the Fund raised two special
pleas. First, it said that the appellant failed to comply with the requirements of
s 17 of the Act and regulation 3 of the Regulations relating to the submission
of the SIA report. Second, it contended that the claim for general damages
was premature because the appellant had failed to exhaust the processes
and remedies available to her in terms of regulation 3. The first special plea
(based on the submission of the report) was correctly abandoned because the
appellant delivered the SIA report to the Fund on 28 October 2013.

[6] The appellant contended that regulation 3(3)(dA) should be interpreted
to mean that if the Fund fails to accept or reject a claimant’s SIA report, or
fails to direct that a claimant submit himself or herself to a further assessment
within the 90-day period prescribed by the regulations, then the Fund is
deemed to have accepted the injury as serious. The argument is that with the
promulgation of the new regulation that was introduced immediately after this
court’s judgment in Road Accident Fund v Duma, (above) the legislature
inserted a 90-day limitation period in the regulation in order to address the
concerns raised in Duma. The regulation previously did not provide for any
limitation of the period in which the Fund had to respond after submission of
the SIA report.

[7] The high court rejected the appellant's submission and in brief held that
regulation 3(3)(dA) was not capable of the construction contended for by the
appellant, namely that if the Fund has not taken a decision within 90 days, it is
deemed to have either accepted the SIA report or to have referred the plaintiff
for a further assessment.

[8] The legislative provisions governing the claims for general damages or
non-pecuniary loss are discussed at length in Duma. The general tenor of
s 17(1) of the Act is that the Fund is liable to compensate claimants for loss
arising from bodily injuries sustained in motor vehicle accidents. In terms of
the Amendment Act,3 the limitation on the Fund’s liability for general damages
was introduced as a proviso in s 17(1) that ‘the obligation of the Fund to
compensate a third party for non-pecuniary loss shall be limited to
compensation for serious injury as contemplated in subsection (1A) . . .’. In
terms of this section the assessment of serious injury must be based on a
prescribed method and be carried out by a medical practitioner registered
under the Health Professions Act.4 A third party in the position of the appellant
who has suffered as a result of any bodily injury to herself or himself or the
death of or any bodily injury to any other person caused by or arising from the
driving of the vehicle due to negligence of the driver and as a result, wishes to

3 Road Accident Fund Amendment Act 19 of 2005.
4 Health Professions Act 56 of 1974.

claim for non-patrimonial losses, must first obtain from the medical practitioner
concerned, an SIA report.

[9] One of the problems identified in Duma is that where the Fund does
not reject or accept the SIA report within a reasonable period, the plaintiff is
compelled to ask for an order of court reviewing the Fund’s inaction, and in
that process the court is required to determine what a reasonable period is.
That is a fact-based enquiry. To avoid a plaintiff having to approach a court to
determine whether the period is in fact reasonable, an amendment to the
regulations was introduced requiring the Fund to assess the SIA report within
90 days.

[10] The high court rejected the appellant’s argument that the introduction
of the 90-day period gave rise to a deemed acceptance of the SIA report. The
foundation for the argument was that the amendment sought to avoid the
mischief that Duma identified – the Fund’s inaction – and that simply requiring
the Fund to respond within 90 days would not achieve that end. The plaintiff
would still have to apply, after the 90-day period, for a review of the Fund’s
inaction in terms of s 6(2)(g) of the Promotion of Administrative Justice Act 3
of 2000 (PAJA). This was costly and time consuming and would prejudice the
plaintiff, especially one who was impoverished or did not have ready access
to legal services. Thus one had to read into regulation 3(3)(dA) a proviso, the
effect of which is that inaction on the part of the Fund for a period of 90 days
would constitute a deemed acceptance of the injury as serious.

[11] It was contended on behalf of the Fund that the interpretation
suggested by the appellant was untenable and would give rise to an absurdity
that could not have been intended by the legislature. The nub of the Fund’s
argument is that if the regulation introduced a deeming provision, as
contended for by the appellant, the Fund would lose its statutory right to act in
terms of regulation 3(3)(c), which provides that the Fund is obliged to
compensate a third party for non-pecuniary loss only if a claim is supported by
a SIA report and the Fund is satisfied that the injury has been correctly
assessed as serious in terms of the method prescribed in the regulations. It

was further submitted that the argument of the appellant flies in the face of
regulation 3(3)(d)(i) which provides that if the Fund is not so satisfied, it must
reject the serious injury assessment report and give the third party reasons for
the rejection; or direct the third party to submit himself or herself to a further
assessment by a medical practitioner designated by the Fund, at its cost, to
ascertain whether the injury is serious in terms of the method set out in
regulation 3(3)(d)(ii). The submission made is that since the Fund had
rejected the SIA report, albeit late, the appellant had to utilise the internal
dispute resolution mechanisms provided for in the regulation to appeal against
the rejection of the report. On the appellant’s construction, so the argument
went, the Fund would be liable for general damages without any legal basis
and this would render the entire provisions of regulations 3(7) to 3(10), which
deals with internal dispute resolution mechanisms, nugatory.

[12] If the Fund is not satisfied that the injury is serious, the plaintiff cannot
continue with its claim for general damages in court. The court simply has no
jurisdiction to entertain the claim. The plaintiff's remedy is to take the rejection
on appeal in terms of regulation 3(4). The Fund, as an organ of State as
defined in s 239 of the Constitution, performs a public function in terms of
legislation. Its decision in terms of regulations 3(3)(c) and 3(3)(d), whether or
not the report correctly assessed the claimant’s injury as ‘serious’, constitutes
administrative action, as contemplated PAJA. In terms of s 6(2)(g), read with
s 6(3)(b), of PAJA if the Fund unreasonably delays in taking a decision in
circumstances where there is a period prescribed for that decision, an
application can be brought for judicial review of the failure to take the
decision.

[13] Moreover, the clear language of regulation 3(3)(dA) enjoins the Fund to
decide within 90 days from the date on which the report was sent or delivered
by hand to (a) accept the SIA report; (b) to reject it; or (c) to refer the third
party for a further assessment. It was correctly argued for the Fund that
regulation 3(3)(dA) was enacted to stipulate the time period within which the
Fund must make a decision as to whether or not the third party has suffered
serious injuries.

[14] An interpretation that seeks to suggest that because the Fund did not
make a decision within 90 days of receipt of the SIA report, it is deemed to
have accepted that the third party has suffered serious injuries is untenable
and in conflict with the provisions of subsecs 17(1) and 17(1A) of the Act, and
regulation 3. It is always open to the Fund to reject the SIA report when it is
not satisfied that the injury has been correctly assessed in terms of regulation
3(3)(dA). This regulation does no more than prescribe a period within which
the Fund can reject or accept the report. It would be an anomaly if, in terms of
regulation 3(3)(dA), where the Fund has failed to make a decision within the
prescribed period, an otherwise not serious injury would by default become
serious because of the delay. By including the prescribed period the
legislature sought to ameliorate the hardship experienced by claimants prior
to and after the Duma case. The intention was to bring legal certainty and to
compel the Fund to act promptly and timeously, not to create a presumption in
favour of a claimant that the injury in question is a serious one.

[15] The appellant's further argument that a failure to read in a deeming
provision will leave a lacuna in the regulation that would prejudice claimants is
misconceived. What that argument fails to appreciate is that reading in a
deeming provision into the regulation would alter its clear meaning. In any
event, reading in may occur only when it is necessary to save a provision from
constitutional invalidity.

[16] In the hearing, counsel for the appellant was asked to formulate the
deeming provision for which the appellant contended. He understandably had
difficulty in doing so. He did, however, concede that what we were being
asked to undertake is a law-making function on a scale that is unprecedented.

[17] The new regulation seeks to define the rights of the claimants in
unambiguous terms and afford them an opportunity after 90 days to apply for
a mandamus in terms of PAJA to compel the Fund to make a decision. It was
specifically enacted to deal with the mischief identified by this court in Duma
relating to the phrase ‘within a reasonable time’ which caused uncertainty to

claimants. It is unfortunate that the Fund continues to be tardy, but one cannot
reformulate the regulation in order to avoid that consequence.

[18] In my view, absent any constitutional challenge, the reading into the
regulation of a deeming provision is impermissible and tantamount to
arrogating to the court the powers of law-making functions. It follows that the
appeal has no merit and falls to be dismissed.

[19] The following order is made:
The appeal is dismissed with costs.

________________________
R S Mathopo
Judge of Appeal

APPEARANCES:

For appellant:
A R Sholto-Douglas SC

C Tait

Instructed by:

A Batchelor & Associates, Cape Town

McIntyre Van der Post, Bloemfontein

For Fund:
P J J Zietsman

Instructed by:

Nongogo, Nuku Incorporated, Cape Town

Matsepes Incorporated, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Mpahla v Road Accident Fund (698/16) [2017] ZASCA 76

From:
The Registrar, Supreme Court of Appeal

Date:
1 June 2017

Status:
Immediate

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

Today, the Supreme Court of Appeal (SCA) dismissed an appeal against a judgment in the Western
Cape Division, Cape Town.

The issue on appeal concerned the interpretation of regulation 3(3)(dA) of the Road Accident Fund
Regulations (the regulations). The provision relates to a claim for general damages which requires
the Road Accident Fund (the Fund), within 90 days from the date of receiving the Serious Injury
Assessment Report (SIA report), to accept or reject the SIA report or to direct the third party to submit
himself or herself to a further assessment.

The appellant argued that on a proper construction of regulation 3(3)(dA), the Fund is deemed to
have accepted that the appellant has sustained a serious injury because it did not reject the SIA
report or direct the appellant to submit a further assessment within 90 days of delivery of the report.

The Fund, however, disagreed that regulation 3(3)(dA) is capable of such interpretation. It argued that
if within 90 days of delivery of the SIA report, no decision is made to accept or reject the report, or to
refer the appellant for further assessment, the appellant’s remedy lies in s 6(2)(g) of the Promotion of
Access to Information 3 of 2000 (PAJA), for judicial review of an administrative action of a failure to
take a decision.

The SCA upheld the judgment of the high court finding that in the absence of a constitutional
challenge, the notion of requiring a court to read into the regulation a deeming provision seeks
impermissibly to arrogate to the courts a law-making function.

The appeal was accordingly dismissed with costs.

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