Mpahla v Road Accident Fund

The appellant instituted an action against the Road Accident Fund (RAF) for damages suffered in a motor vehicle collision on 18 November 2011. One of her claims was for R400,000 in non-pecuniary loss (general damages). On 28 October 2013, the appellant submitted a Serious Injury Assessment (SIA) report to the Fund as required by regulation 3(3) of the Road Accident Fund Regulations and the Road Accident Fund Act 56 of 1996. Regulation 3(3)(dA) required the Fund to accept or reject the SIA report, or direct the claimant to submit to a further assessment, within 90 days from the date of delivery. The 90-day period expired on 26 January 2014, but the Fund only rejected the SIA report on 17 January 2015, almost a year later. The Fund conceded negligence and undertook to compensate the appellant for other heads of damages but continued to resist liability for general damages.

• Whether regulation 3(3)(dA) of the Road Accident Fund Regulations creates a deeming provision such that the Fund's failure to take a decision within the prescribed 90-day period constitutes deemed acceptance that the appellant sustained a serious injury
• The proper interpretation of regulation 3(3)(dA) and its interaction with sections 17(1) and 17(1A) of the Road Accident Fund Act 56 of 1996
• What remedy is available to a claimant when the Fund fails to make a decision within the prescribed 90-day period

The appeal was dismissed with costs.

Regulation 3(3)(dA) of the Road Accident Fund Regulations, which requires the Fund to accept or reject a Serious Injury Assessment report or direct further assessment within 90 days of delivery, does not create a deeming provision that results in automatic acceptance if the Fund fails to respond within that period. The regulation merely prescribes a time period within which the Fund must make its decision. It does not alter the substantive requirements in sections 17(1) and 17(1A) of the Road Accident Fund Act or regulation 3(3)(c) that the Fund must be satisfied that an injury has been correctly assessed as serious before liability for general damages arises. When the Fund fails to make a decision within the prescribed 90-day period, the claimant's remedy lies in section 6(2)(g) of PAJA, which permits judicial review of unreasonable delay in taking an administrative decision, or an application for mandamus to compel the decision. Reading a deeming provision into the regulation would constitute an impermissible law-making function by the court absent a constitutional challenge.

The court noted that it was unfortunate that the Fund continues to be tardy in responding to SIA reports, despite the regulation being specifically enacted to address delays. The court observed that the amendment to introduce the 90-day period was designed to bring legal certainty and ameliorate the hardship experienced by claimants, as identified in the Duma case, by replacing the uncertain phrase 'within a reasonable time' with a definite period. The court commented that counsel for the appellant understandably had difficulty formulating the deeming provision for which the appellant contended, and conceded that what was being asked would require the court to undertake a law-making function on an unprecedented scale.

This case clarifies the interpretation of regulation 3(3)(dA) of the Road Accident Fund Regulations and confirms that the failure of the RAF to make a decision within the prescribed 90-day period does not result in deemed acceptance of a serious injury assessment. The judgment establishes that the 90-day period is a procedural time limit designed to compel the Fund to act promptly, but does not create substantive rights for claimants through a deeming provision. The case affirms that claimants whose SIA reports are not dealt with timeously have recourse through administrative law remedies under PAJA, specifically section 6(2)(g) for unreasonable delay. It demonstrates the limits of judicial interpretation and the courts' reluctance to 'read in' provisions that would amount to law-making, particularly in the absence of a constitutional challenge. The judgment also reinforces the gatekeeper role of the serious injury assessment process in limiting the RAF's liability for general damages.