Malefane Kemuel Mahano and Others v Road Accident Fund and Another

Three appellants instituted separate actions against the Road Accident Fund (the Fund) in the North Gauteng Division for damages they suffered from motor vehicle accidents occurring after 1 August 2008. General damages formed part of their claims. The appellants contended that compliance with regulation 3 of the Road Accident Fund Regulations, 2008 was 'legally impossible' in the absence of operational guidelines published by the Minister of Transport concerning the application of the American Medical Association's Guides to the Evaluation of Permanent Impairment Sixth Edition (the AMA Guides). The first and second appellants sought declaratory relief after the close of pleadings. The third appellant raised the issue by way of objection to the Fund's amendment application. The parties agreed that the interpretation of regulation 3(1)(b)(iv) was dispositive of all three applications. Kgomo J in the high court ruled against the appellants' interpretation. The appellants appealed with leave of the Supreme Court of Appeal.

• Whether regulation 3(1)(b)(iv) of the Road Accident Fund Regulations, 2008 requires operational guidelines to be published by the Minister before the AMA Guides can be applied in determining a claimant's Whole Person Impairment (WPI)
• Whether the AMA Guides can be applied for purposes of the Regulations in the absence of operational guidelines published by the Minister
• Whether a claimant is excused from compliance with the regulations by virtue of the maxim lex non cogit ad impossibilia (the law does not compel performance of the impossible) if the AMA Guides cannot be applied in the absence of operational guidelines
• The proper interpretation of regulation 3(1)(b)(iv) using established principles of statutory interpretation

The appeal was dismissed with costs, including the costs of two counsel.

The binding legal principle established is that regulation 3(1)(b)(iv) of the Road Accident Fund Regulations, 2008 does not make the application of the AMA Guides in assessing whether a third party's injury is 'serious' dependent on the existence of operational guidelines published by the Minister of Transport. The words 'if any' in regulation 3(1)(b)(iv) qualify and apply to both 'operational guidelines' and 'amendments', rendering their publication discretionary. The obligation created by the word 'must' in the regulation is placed conditionally upon the medical practitioner to apply the AMA Guides in accordance with any operational guidelines or amendments if published, but does not create an obligation on the Minister to publish such guidelines. The publication of operational guidelines is not a condition precedent to the application of the AMA Guides. Medical practitioners can and must apply the AMA Guides in the absence of operational guidelines when assessing whether an injury qualifies as 'serious' for purposes of general damages claims under the Road Accident Fund Act.

Meyer AJA commented that the interpretation contended for by the appellants was 'rather opportunistic' and appeared to be an attempt to avoid compliance with the Regulations despite the clear and unambiguous wording of regulation 3(1)(b)(iv). The court observed that the appellants' construction was 'linguistically and contextually untenable'. The court also noted that there is no practical impediment to the application of the AMA Guides in the absence of operational guidelines. The judgment reiterated observations from previous decisions (Duma and Faria) regarding the paradigm shifts introduced by the amended Road Accident Fund Act and Regulations: (i) general damages may only be awarded for injuries assessed as 'serious'; and (ii) the assessment of injuries as 'serious' is an administrative rather than judicial decision, with the Fund (not the court) required to be satisfied that the injury has been correctly assessed as serious.

This judgment is significant for clarifying the proper interpretation of regulation 3(1)(b)(iv) of the Road Accident Fund Regulations, 2008. It confirms that claimants can proceed with assessments using the AMA Guides without waiting for operational guidelines from the Minister. The judgment reinforces the administrative (rather than judicial) nature of determining whether injuries are 'serious' for purposes of general damages claims under the Road Accident Fund Act. It demonstrates the application of established principles of statutory interpretation, particularly that context and practical consequences matter when interpreting regulatory provisions. The decision prevents claimants from avoiding compliance with the regulatory scheme on the basis of a strained interpretation of the regulations. It also clarifies that the threshold requirement for general damages - proof that the Fund is satisfied the injury has been correctly assessed as serious - can be met through application of the AMA Guides even in the absence of ministerial operational guidelines.