Road Accident Fund v Khomotso Polly Mphirime

On 12 June 2012, the respondent, a middle-aged mother of three children, was a passenger in a motor vehicle that collided with another vehicle. The Road Accident Fund (RAF) accepted 100% liability for her proven or agreed damages. Agreement was reached on most issues, including general damages and past hospital expenses. However, the parties disagreed on whether the RAF could discharge its liability for the cost of providing a domestic assistant by issuing an undertaking under s 17(4)(a) of the Road Accident Fund Act 56 of 1996, rather than paying a lump sum. The RAF conceded the respondent needed a domestic assistant and both parties agreed on the amount (R 231,474.00), but disagreed on the method of payment. The court a quo ruled in favour of the respondent, ordering a lump sum payment. The RAF appealed to obtain clarity on what claims may be dealt with by way of an undertaking under s 17(4)(a).

• Whether the Road Accident Fund is entitled to discharge its liability for the cost of employing a domestic assistant by issuing an undertaking under s 17(4)(a) of the Road Accident Fund Act 56 of 1996, rather than by paying a lump sum
• The proper interpretation of s 17(4)(a) and s 17(4B) of the Road Accident Fund Act 56 of 1996 as amended by the Road Accident Fund Amendment Act 19 of 2005
• The effect of the Constitutional Court's judgment in Law Society of South Africa v Minister for Transport on the current operation of s 17(4)(a)

The appeal succeeded. The order of the court a quo dated 25 February 2016 was set aside and substituted with: (a) A declaration that the cost of employment of a domestic assistant to the plaintiff is an expense that the defendant is entitled to pay in terms of an undertaking under s 17(4)(a) of the Road Accident Fund Act 56 of 1996; (b) An order that the defendant furnish the plaintiff with such an undertaking. There was no order as to costs, as the appeal was brought as a test case for the public good.

Where regulation 5(1) has been declared constitutionally invalid and no new tariff has been prescribed under s 17(4B) of the Road Accident Fund Act 56 of 1996, the position that applied immediately prior to 1 August 2008 (before the 2005 Amendment Act came into operation) governs undertakings under s 17(4)(a). During that period, the Road Accident Fund was entitled to give undertakings in respect of domestic assistant costs, as such services constituted 'the rendering of a service' contemplated in the legislation. Therefore, until a new valid tariff is prescribed, the Fund remains entitled to discharge its liability for domestic assistant costs by furnishing an undertaking under s 17(4)(a), and a claimant is not entitled to refuse such an undertaking and insist on a lump sum payment.

The court made several non-binding observations: (1) It expressed hope that either a new tariff will determine what may be paid in respect of attendant costs, or that the Act will be amended to spell out with great clarity what expenses can be dealt with by way of undertaking, to address the ambiguity that has bedevilled this issue. (2) The court noted it would be inappropriate to attempt to resolve the broader interpretive dispute about whether the 2005 amendments themselves excluded domestic assistant costs from s 17(4)(a), given that the Constitutional Court's order in Law Society of South Africa rendered such analysis academic for present purposes. (3) The court acknowledged that s 17 of the Act 'is not a model of legal clarity or of the art of legal draftsmanship' and that the legislature's failure to clearly identify what may be covered by an undertaking under s 17(4)(a) has inevitably and understandably given rise to different interpretations. (4) The court noted that seven years had passed since the Constitutional Court's judgment without the Minister prescribing a fresh tariff, expressing implicit criticism of this delay.

This case provides important clarification on the Road Accident Fund's ability to discharge liability through undertakings under s 17(4)(a) for non-medical services, specifically domestic assistance. It resolves conflicting High Court judgments on this issue (contrasting Barnard NO v Road Accident Fund with the court a quo's approach). The judgment highlights the ongoing practical effect of the Constitutional Court's decision in Law Society of South Africa, which continues to govern the operation of s 17(4)(a) until a new valid tariff is prescribed. The case also illustrates the interpretive challenges posed by the drafting of the Road Accident Fund Act and calls for legislative clarification of what expenses may be dealt with by way of undertaking. It confirms that claimants cannot refuse undertakings that the RAF is statutorily entitled to provide.