Shocking Consequences for Emotional Shock Victims by Regional Magistrate Pearl Andrews

Emotional shock claimants whose claim falls within the ambit of Section 17(1) of the Road Accident Fund Act 56 of 1996 (hereinafter referred to as “the RAF Act”) may find themselves shell shocked if they fail to comply with the provisions of Section 24 of the RAF Act by not submitting a statutory medical report together with the MMF1 form.

Section 24 (1) provides that a claim for compensation and accompanying medical report “shall” be set out in the prescribed form, which “… shall be completed in all its particulars.” The RAF Act read with the Regulations exclusively recognizes the duly completed medical report on form RAF1 as the only source of the information.   Regulation 7 stipulates that the claim and medical reports “shall” be in the forms described in the Annexure to the Regulations, and Section 24 (4) (a) of the Act provides that any form which is not completed in all its particulars “… shall not be acceptable as a claim under this Act.” If regard is had to Sections 24 (4) (b), (c) and (d), a level of exactitude is required in completing the medical report.

In applying the ordinary grammatical import of the wording contained in the RAF Act, the inexorable interpretation is that the statutory medical report as required in terms of Section 24 of the RAF Act must be completed in all its particulars. It follows that if it is not done, then the claim shall not be acceptable as a claim under the RAF Act. 

It is trite that the RAF Act and its predecessors represent ‘… social legislation aimed at the widest possible protection and compensation against loss and damages for the negligent driving of a motor vehicle.’[1] 

In Multilateral Motor Vehicle Accident Fund v Radebe[2] Nestadt JA held that:

‘It is true that the object of the Act is to give the widest possible protection to third parties.  On the other hand, the benefit which the claim form is designed to give the fund must be borne in mind and given effect to.  The information contained in the claim form allows for an assessment of its liability, including the possible early investigation of the case.  In addition, it also promotes the saving of the costs of litigation.  These various allegations are important and should not be whittled away.  The resources, both in respect of money and manpower, of agents and particularly of the fund are obviously not unlimited.  They are not to be expected to investigate claims which are inadequately advanced.  There is no warrant for casting on them the additional burden of doing what the regulations require should be done by the claimant.’

Let’s take a closer look at the statutory form. The preamble of Form 1 specifically states the following:

Notes:

  • Section 24(2)(a) provides that this report shall (my emphasis) be completed by the medical practitioner who treated (my emphasis) the injured or deceased person (my emphasis) for the bodily injuries sustained by him/her in the accident from which this claim arises or by the superintendent (or his/her representative) of the hospital in which the injured or deceased person (my emphasis) was treated for such bodily injuries.
  • …’

Upon analysis of certain excerpts of the required statutory form as per the Regulations, the information sought therein for example, contemplates physical injuries sustained by the injured or deceased person, but yet, this requisite statutory form is peremptory for emotional shock claimants to complete. Consequently, it begs the question as to whether the law created a situation which makes performance thereof impossible especially for emotional shock claimants.  Can it be said that the completion of the statutory form creates an absurdity. In South African Transport and Allied Workers Union and Another v Garvas and Others[3] it was held that:

‘…an interpretation of a statutory provision that gives rise to an absurdity or irrationality should be avoided where there is another reasonable construction which may be given to that provision. In other words, where a legislative provision is reasonably capable of a meaning that keeps it within constitutional bounds, a court must through the use of legitimate interpretative aids, seek to preserve that provision’s constitutional validity.’

In instances where the Plaintiff sues out of a Magistrates’ Court, the court is not imbued with inherent powers to decide on the constitutional validity of a legislative provision, however absurd or irrational that provision may be. The framers of the law have made it peremptory for the completion of certain statutory forms. Whilst the presiding magistrate is enjoined to uphold the Constitution of the Republic of South Africa[4], it is not for the court to decide whether the completion of the statutory form amounts to an absurdity and / or incongruity.

So where does this leave a claimant who has lost a loved one in a motor vehicle collision. The failure to lodge the statutory medical report as required in terms of Section 24 read with Regulations 7 (1) and (2) of the Regulations of the RAF Act renders the Plaintiff’s claim fatally defective.[5]

The pivotal thrust is essentially whether a claimant’s claim for damages as a result of emotional shock is based on delict or whether the prescripts of the RAF Act find application.  This would ultimately depend on how the claim is pleaded. It is furthermore trite that a claim founded in delict should be properly pleaded. If the provisions of the RAF Act are invoked, it follows that the claimant is bound to comply with the peremptory requirements. In Busuku v Road Accident Fund[6], it was held that:

‘[9] These remarks are equally applicable to medical reports.  The content of the medical report allows for an early investigation in, and assessment of, the quantum of damages.  It calls for certain specific information and particularity to achieve this end.  The claim and accompanying medical report must, in terms of section 7 of the Regulations read with annexure A thereto, be set out in form RAF1, which form includes the medical report.

[10] It has repeatedly been recognized that the statutory requirements of the Act relating to the submission of the claim form and medical report is peremptory; and that the prescribed requirements concerning the completeness of the form including the medical report, are directory. This means that substantial compliance with such requirements suffices…’ 

There is a plethora of case law which confirms that claims in respect of negligently caused shock and emotional trauma resulting in a detectable psychiatric injury is actionable which is indicative of how this jurisprudence has developed in South African law. [7]

In Bester v Commercial Union Versekeringsmaatskappy van SA Bpk[8] it was held that there was ‘no reason in our law why somebody who, as the result of the negligent act of another, has suffered psychiatric injury with consequent indisposition should not be entitled to compensation, provided the possible consequences of the negligent act would have been foreseen by a reasonable person in the place of the wrongdoer’.

In Road Accident Fund v Sauls[9] the Supreme Court of Appeal considered the question of liability for emotional shock resulting in chronic post-traumatic stress disorder. This matter deals with the distinguishing factors between the serious harm caused to the Plaintiff compared with the negligible harm caused to the primary victim. In Sauls it was argued that if the present claim where the primary harm is negligible is allowed, the flood gates will be opened to a multitude of claims, where huge amounts will be sought for secondary harm, whether genuine or simulated.   The Court further held in Sauls that it could find no general “public policy” limitation to the claim of a Plaintiff, other than a correct and careful application of the well-known requirements of delictual liability and of the onus of proof.

If regard is had to the information called for in the statutory medical form, it opens the debate as to whether the legislature contemplated emotional shock claimants or is it a situation where these claims were introduced through the common law. It is accepted in our law that emotional shock claims are founded in the common law.  It is furthermore pellucid that such claims have been codified through legislation. Sections 24(1), 24 (2) and Section 24(4) are therefore the governing provisions of the RAF Act which apply in instances where the provisions of the RAF Act are invoked. A court will therefore be bidden to apply the legislative ordinances as encapsulated in the RAF Act.

In Busuku it was stated that ‘…it is evident…, that the claim and accompanying medical report requires a level of particularity which enables the Fund to ensure that an assessment of a serious injury can be made in accordance with the method prescribed in Regulation 3 (1) (b), and that it was made by a medical practitioner as meant by s. 24 (2).  This information cannot be gleaned from the hospital notes…The purpose of Regulations 2, 3 and 7, read with sections 17 (1A) and 24 of the Act, is to enable the Fund to gather all the required information from the prescribed forms to enable it to assess the validity and quantum of the claim without casting an additional burden on the Fund to carry out its own investigations.’[10]

Under the law of Interpretation of Statutes, the words used in the RAF Act and Regulations become hollow if effect is not given to it. I can find no authority where there has been any relaxation of this requirement. Non-compliance with the peremptory provisions of Section 24(2) and 24(4) of the RAF Act will render the claim to be fatally defective and possibly leave the emotional shock claimant unsuited.


[1] Road Accident Fund v M obo M [2005] 3 All SA 340 (SCA) at para 12; Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) at 285 E-F; Multilateral Motor Vehicle Accidents Fund v Radebe 1996 (2) SA 145 (A) at 152 E-I; Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) at para 7.

[2] 1996 (2) SA 145 (A) at 152 E-I.

[3] 2013 (1) SA 83 (CC) (13 June 2012).

[4] Act 108 of 1996.

[5] Viljoen v A.A. Onderlinder Assuransie 1973 (2) SA 673 (T); Modibedi v Sentraboer (ko-Operatief) Bpk 1981(4) SA 377.

[6] [neutral citation: (3055/2014) [2016] ZAECMHC 30 (9 June 2016)], See also  Pithey v Road Accident Fund 2014 (4) SA 112 (SCA) at 120 (para 19).

[7]Clinton-Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W); Majiet v Santam Ltd [1997] 4 B All SA 555 (C); Barnard v Santam Bpk (1999) 1 SA 202 (SCA).

[8] 1973 (1) SA 769 (A).

[9] 2002 (2) SA 55 (SCA).

[10] At para 20 and 22.

This blog post was prepared by Regional Magistrate Pearl Andrews. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.