Legal Practioners Indemnity Insurance Fund v Road Accident Fund (046038_2022) [2024] ZAGPPHC

The Minister's adoption and publication of the RAF 1 Form and the Board Notice were found to be unlawful due to various reasons, including lack of proper consideration, failure to comply with constitutional rights, and encroachment on the Minister's powers.

Author

Ross Shepstone
March 25, 2024

The case involves a legal challenge by various applicants against the Road Accident Fund (RAF) and the Minister of Transport regarding the lodging of claims for compensation against the RAF. The applicants include the Legal Practitioners Indemnity Insurance Fund NPC, WE Emergency Respond Team (Pty) Ltd, individuals who are victims of road accidents, and law firms specializing in personal injury claims. The respondents include the RAF, the Minister of Transport, the Chairperson of the Road Accident Fund Board, and the Chief Executive Officer of the RAF.



The applicants sought to review the Board Notice and the RAF 1 Claim Form, alleging that they were unlawful under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or under the principle of legality. The RAF Act requires that a claim for compensation shall be set out in the prescribed form, and the Minister has the power to make regulations regarding this matter. The Minister adopted the Board Notice and the RAF 1 Form, which the applicants challenged.

The applicants applied for condonation for late filing of their review applications, with some applicants providing detailed explanations for the delay. The court considered each applicant's condonation application individually.

The court found that both the RAF 1 Form and the Board Notice were unlawful due to various reasons, including lack of proper consideration by the Minister, failure to comply with constitutional rights, and encroachment on the Minister's powers. The court ordered the setting aside of the Board Notice and the RAF 1 Form.

"The Minister is required by s7(2) of the Constitution to respect, protect and promote the rights in the Bill of Rights. As the Amicus reminded us, many persons in our country are poor, too many have compromised literacy, and many have limited access to legal services. The lodging of a claim is an essential step in seeking compensation under the RAF Act. The RAF 1 Form must not become an instrument that obstructs valid claims, and by so doing visits unfair discrimination upon poor people contrary to s 9(3) of the Constitution."



In terms of relief, the court declared that successful claims lodged under the Board Notice and RAF 1 Form would continue to be processed by the RAF. Claimants who were unsuccessful under the challenged forms were given an opportunity to resubmit their claims using the 2008 RAF 1 Form. The Minister was ordered to adopt and publish a revised RAF 1 Form within six months. Costs were awarded to the successful applicants against the RAF and the Minister, with the unsuccessful applications not incurring costs due to the public interest nature of the legal issues raised.

The core legal principle underlying the decision is that the Minister's adoption and publication of the RAF 1 Form and the Board Notice were found to be unlawful due to various reasons, including lack of proper consideration, failure to comply with constitutional rights, and encroachment on the Minister's powers. The court emphasised the importance of procedural fairness, adherence to constitutional rights, and the need for the Minister to engage urgently in creating a lawful regulatory regime for lodging claims against the RAF. The decision highlighted the necessity for regulatory certainty, fairness, and efficiency in the process of lodging claims for compensation, while also ensuring that claimants are not unfairly disadvantaged.

The court relied on the case of Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others 2006 (2) SA 311 (CC), as a precedent to support the principle that the making of subordinate legislation constitutes administrative action.