THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 319/13
Reportable

In the matter between:

JOHANNA CHRISTINA PITHEY

APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

Neutral citation:
Pithey v Road Accident Fund (319/13) [2014] ZASCA 55 (16 April

2014)
Coram:
Navsa, Theron and Petse JJA and Swain and Legodi AJJA
Heard:
13 March 2014
Delivered:
16 April 2014

Summary:
Motor vehicle accident ─ claim against the Road Accident Fund ─
adequacy of information provided in claim form as read with supporting documentation
─ whilst crucial to properly identify whether claim under s 17(1)(a) or (b) provision of
contradictory information not invalidating claim where the category of the claim can still
be determined.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Bertelsmann J, Preller and
Mabuse JJ concurring, sitting as court of appeal):
1 The appeal is upheld with costs.
2 The order of the Full Court is set aside and in its place is substituted the following:
‗The appeal succeeds with costs. The order of Sapire AJ is set aside. In its place is
substituted the following order:
The special plea is dismissed with costs.‘

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Petse JA (Navsa and Theron JJA and Swain and Legodi AJJA concurring):
[1] The issue arising in this appeal is whether a claim for compensation lodged
with the Road Accident Fund (Fund) established in terms of the Road Accident Fund
Act 56 of 1996 (the Act) is rendered invalid because the claim form apparently
conveys that it is a claim under s 17(1)(a) of the Act whereas it is evident from the
accompanying documents that such a claim is in terms of s 17(1)(b) of the Act. This
issue arises against the following backdrop.

[2] The appellant, Ms Johanna Christina Pithey, instituted an action against the
Fund in the North Gauteng High Court, Johannesburg, for damages she suffered as
a result of a motor vehicle collision which occurred on 29 November 2004. The
appellant alleged in her particulars of claim that on 29 November 2004 on the N12
national road between Westonaria and Alberton a collision occurred between a
motor vehicle of which she was the driver and a truck driven by a Mr M Ntshangase.
She further alleged that the sole cause of the said collision was the negligence, in
the respects alleged in her particulars of claim, of the driver of an unidentified blue
minibus which was itself not directly involved in the collision. The appellant was

unable to establish the identity of either the owner or the driver of the blue minibus at
the material time. This was thus a claim for compensation in terms of s 17(1)(b) of
the Act, the relevant parts of which read as follows:
‗17 Liability of Fund and agents
(1) The Fund or an agent shall─
(a)   . . .;
(b)   subject to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving of a motor vehicle where the identity
of neither the owner nor the driver thereof has been established, be obliged to compensate
any person (the third party) for any loss or damage which the third party has suffered as a
result of any bodily injury to himself or herself or the death of or any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle by any person at any place
within the Republic, if the injury or death is due to the negligence or other wrongful act of the
driver or of the owner of the motor vehicle or of his or her employee in the performance of
the employee's duties as employee: . . .‘ (My emphasis.)

[3] The Fund defended the action and delivered a special plea and a main plea
disputing liability. For present purposes only the special plea raised by the Fund is
relevant. In that special plea the Fund averred that the appellant‘s claim was
unenforceable because the appellant had not lodged a claim in respect of an
unidentified vehicle within a period of two years from the date on which her claim
arose, as required in terms of regulation 2(3) of the Regulations, promulgated in
terms of s 26 of the Act. That regulation provides:
‗(3) Notwithstanding anything to the contrary in any law a claim for compensation referred to
in section 17(1)(b) of the Act shall be sent or delivered to the Fund, in accordance with the
provisions of section 24 of the Act, within two years from the date upon which the claim
arose, irrespective of any legal disability to which the third party concerned may be subject.‘
The rationale for this regulation was explained in these terms in Mbatha v Multilateral
Motor Vehicle Accidents Fund 1997 (3) SA 713 (SCA) at 718H-I:
‗. . . there are good reasons for having stricter requirements for unidentified vehicle cases,
the argument has to fail. In these cases the possibility of fraud is greater; it is usually
impossible for the Fund to find evidence to controvert the claimant's allegations; the later the
claim the greater the Fund's problems; in addition, whilst in the identified vehicle case the
claim against the agent comes in the stead of the claim against the wrongdoer, the claimant

in the present case is given an enforceable right in a case where there otherwise would not
have been any . . .‘1

[4] At the trial before the court of first instance (Sapire AJ) the parties reached
agreement on certain facts relating to the validity of the special plea which were
recorded in a written statement. The question which, in terms of Uniform rule 33(4),
the trial court was called upon to decide was in essence whether the appellant‘s
claim as set out in her claim form read together with the documents which she
lodged with the Fund, under cover of a letter dated 17 October 2005 sent by her
attorney to the Fund, constituted a valid claim in terms of the Act and the regulations
promulgated thereunder.

[5] It is convenient at this juncture to quote the statement of the agreed facts
between the parties. The material parts of which read as follows:
‗1  . . .
2. . . .
3.
Plaintiff‘s action against Defendant falls under section 17(1)(b) of the act and in the

circumstances regulation 2 of the regulations promulgated in terms of the act (―the

regulations‖) applies;
4.
Defendant raised a special plea in terms of which it alleges that no debt exists

against Defendant under the act, due to Plaintiff‘s failure to comply with regulation

2(3);
5.
In order to have claim a against Defendant, Plaintiff would, in terms of regulation

2(3),  have to lodge a claim with Defendant within two years after the date of the

accident, being, at the least, 28 November 2006;
6.
Plaintiff lodged a claim against Defendant by lodging a bundle of documents under

cover of a letter from her attorneys dated 17 October 2005 (―the claim bundle‖). A

copy of this letter is attached hereto as Annexure ―SOF1‖;

1 Rondalia Versekeringskorporasie van Suid-Afrika Bpk v Lemmer 1966 (2) SA 245 (A) at 256A;
Nkisimane & others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 434F-G.

7.
Defendant acknowledged receipt of the claim bundle on 24 October 2005 by affixing

its date stamp to the first page of the covering letter;
8.
Defendant did not object to the validity of the claim in terms of section 26;
9.
The following documents, excluding those which are irrelevant for the purpose of

deciding this issue, were included in the claim bundle:

9.1
A statutory claim form in terms of section 17(1) and 24(1)(A) of the act and

regulation 3(1) of the regulations. A copy of the claim form is attached hereto

as Annexure ―SOF2‖;

9.2
Plaintiff‘s affidavit in compliance with section 19(f)(i) of the act. A copy of the

affidavit is attached hereto as Annexure ―SOF3‖;

9.3
An affidavit by Arie Willem Jacobs, a passenger in Plaintiff‘s vehicle. A copy

of the affidavit is attached hereto as Annexure ―SOF4‖;
10.
Plaintiff completed paragraph 2 of the claim form, where provision is made for the

particulars of the motor vehicle from the driving of which the claim arises, by entering

the particulars of a truck with registration number LFG 030 GP, which was driven by

one M N Tshangase.

. . .
11.
Nowhere on the claim form was mention made of any vehicle of which the driver or

the owner is unknown to Plaintiff.

. . .
12.
In paragraphs 6 to 8 of her affidavit Plaintiff mentions the involvement of ―an

unknown blue minibus‖ and in paragraph 18 states that ―[T]he accident was caused

by the sole negligence of the driver of the blue taxi. . .‖,

. . .
13.
In the affidavit of A W Jacobs, he states that:

13.1
he was a passenger in the vehicle driven by Plaintiff.

13.2
―a truck approaching from the opposite direction turned right into the R558.‖

13.3
―an unknown taxi also turned right directly behind the truck. . . . .we had to

swerve to avoid driving into the taxi.‖

13.4
―both the truck and the taxi were negligent and caused the accident.‖

. . .
14.
On May 2006, Defendant repudiated liability in a letter of repudiation, stating that

Plaintiff was the sole cause of the collision. A copy of this letter is attached hereto as

. . .‖
15.
On 21 August 2006 Plaintiff‘s attorneys received a letter from Defendant dated 17

August 2006 which referred to plaintiff‘s statutory affidavit and the fact that Plaintiff

attempted to avoid a collision with a taxi when her vehicle slipped and collided with

the rear of the insured vehicle. A copy of this letter is attached hereto as Annexure

―SOF5‖;
16.
On 29 May 2007
17.
The South African Police Services, Lenasia investigated a case of reckless and

negligent driving and culpable homicide, relating to the collision, under docket with

MAS number 1331/11/2004. A copy of the first page of the docket cover is attached

hereto as Annexure ―SOF6‖.
18.
The following documents, excluding those which are irrelevant for the purpose of

deciding this issue, was contained in the docket.

17.1
An affidavit by Arie Willem Jacobs dated 27 April 2005. A copy of this affidavit

is attached hereto as Annexure ―SOF7‖;

17.2
A warning statement by Plaintiff dated 15 April 2005. A copy of this statement

is attached hereto as Annexure ―SOF8‖;
19.
In paragraph 2 of the affidavit by Arie Willem Jacobs he states that a blue taxi turned

in front of them and that it ―. . . never stopped and we didn’t take the registration

down.‖

. . .

20.
In the warning statement of Plaintiff she states that a taxi ―. . . turned towards north

without stopping at the robots. . .‖,

. . . .‘

[6] I consider it apt, at this stage, to set out the list of documents sent by the
appellants attorneys to the Fund under cover of their letter of 17 October 2005:
‗(a) the statutory Form 1 claim form for compensation and medical report;
(b) the statutory medical report;
(c) a copy of appellant's identity document;
(d) a copy of appellant's driver's licence;
(e) the statutory affidavit in terms of s 19(f)(i) of the Act;
(f) a copy of the official accident report;
(g) a copy of clinical notes by appellant's physician;
(h) a copy of a radiologist's report;
(i) a copy of a certificate issued by appellant's employer;
(j) a copy of appellant's statement to the investigating officer;
(k) a copy of appellant's statement to comply with s 19(f)(i) of the Act;
(l) a copy of receipts evidencing appellant's medical expenses;
(m) a copy of a statement by a passenger in appellant's vehicle, Mr Jacobs, made to the
investigating officer; and
(n) one made by him to comply with the Act; together with
(o) the power of attorney granted to appellant's legal representatives.‘
[7] On 19 May 2006 the Fund, apparently having confined its determination of the
fate of the claim with reference to the claim form only, repudiated liability, asserting
that the appellant was the sole cause of the collision. On 17 August 2006 the Fund‘s
claim handler wrote to the appellant‘s attorneys as follows:
‗Your letter dated the 2nd of August 2006 refers.
On her S19(f) affidavit, claimant stated that she was trying to avoid a collision with a certain
taxi by trying to make a dead stop but her motor vehicle slipped and ended up colliding with
our insured driver on the rear.
Unfortunately, this does not prove any negligence on the part [of] our insured driver and
instead, he is the one that was rear ended by your client.‘
This was the first time in communication with the appellant‘s attorneys that the Fund
made reference to the appellant‘s affidavit that accompanied the claim form. It
ignored what was said in the accompanying documentation concerning the

culpability of the unidentified taxi which, it was alleged, was the cause of the
collision.

[8] The court of first instance based its finding on the statement of agreed facts
and upheld the Fund‘s special plea. It dismissed the action with costs. Sapire AJ‘s
reason essentially was that the appellant‘s claim form did not relate to a claim based
on the negligence of the driver of an unidentified vehicle. In reaching this conclusion
the learned judge opined that:
‗The indisputable fact is and remains that the basis of the plaintiff‘s claim as specifically
stated in the claim form was the negligence of the vehicle there specified. Negligence on the
part of the driver of an unidentified vehicle may have given rise to a claim on a different basis
altogether.‘
In short, the trial court found that the appellant had in fact instituted an action against
the Fund without first lodging a claim for compensation in the prescribed form with
the Fund in respect of the claim that she sought to advance in her action, that is, in
respect of an unidentified vehicle.

[9] The trial court subsequently granted leave to appeal to the Full Court. On
appeal the Full Court upheld the judgment of the trial court in a judgment reported as
Pithey v Road Accident Fund 2013 (5) SA 226 (GNP), (Bertelsmann J, Preller and
Mabuse JJ concurring) and dismissed the appeal with costs. The present appeal,
with the special leave of this court, is against that judgment and order.

[10] The Full Court noted that the appellant had provided the Fund with two
statements of her own, as to how the collision giving rise to her claim arose and two
further statements from a Mr Jacobs who was a passenger in the cab of the vehicle
of which she was the driver. In her first statement, the appellant inter alia averred
that in her attempt to avoid a collision with a taxi travelling in an easterly direction
she swerved towards the left lane but her vehicle skidded and collided with the rear-
end of a truck. In the second statement she attributed the collision to the sole
negligence of the driver of ‗the blue taxi‘ whose identity and that of the owner were
not established. Mr Jacobs in his second statement attributed the collision to the joint
negligence of both the truck and the blue taxi.

[11] The Full Court went on to observe that in completing the claim form the
appellant provided the particulars of the truck and of its owner and driver at the time
of the collision being those of the motor vehicle from the driving of which her claim
for compensation arose. As against that, the Full Court again noted that the
appellant completed paragraph 2(d) of the claim form relating to an unidentified
vehicle with the words ‗not applicable‘. It then concluded that the claim form (Form 1)
unequivocally conveyed to the Fund that the collision was caused by the driver of the
truck whose particulars were provided as were the particulars of the owner and the
truck.

[12] The Full Court found that in the context of the case before it, the question
whether there was substantial compliance with ss 17 and 24 of the Act did not arise.
It took the view that the pertinent question was whether Form 1 (being the claim form
for compensation sent to the Fund) ‗correctly indicated that the claim to be instituted
by the appellant was one in terms of s 17(1(b) rather than s 17(1)(a)‘.

[13] Emphasising that viewpoint the Full Court stated:
‗[33]
. . . As has been said above, there is a fundamental difference in the nature of the
respective claims. The respondent faces significantly different scenarios, depending on the
nature of the claim. The investigation of those claims and the steps that need to be taken to
enable the Fund to deal with potential litigation or the consideration of an offer of settlement
assume different proportions, depending on whether the insured driver can be consulted or
is unknown and therefore never able to enlighten the respondent in respect of any facts that
might assist in the decision to oppose or to compromise any claim.
[34] For these reasons it is essential that the respondent be correctly informed whether
the insured driver's identity is known or not, whether the prescriptive period is two or three
years and whether the owner of the insured vehicle — and the vehicle itself — can be traced
or not. The requirement to indicate that the claim falls either under s 17(1)(a) or s 17(1)(b) is
therefore clearly non-negotiable and an essential requirement of the correct application of
the claim process. If the incorrect information is supplied in this regard the result must be
fatal to the claim.‘2

[14] It went further to say the following:

2 Pithey v Road Accident Fund 2013 (5) SA 226 (GNP) paras 33-34.

‗[41]
The true question in this appeal is whether the claim as such was correctly identified
in Form 1. The delivery of the form, duly completed, has always been a peremptory
requirement. The distinction between claims submitted in terms of s 17(1)(a) on the one
hand, and s 17(1)(b) on the other, has always been regarded as fundamental and therefore
the correct identification of the claim to be instituted either as one in which the insured
vehicle is identified, or as one in which the opposite is the case, must be regarded as
peremptory.
[42] It follows that the unambiguous identification of a claim as one that arose as a result
of the driving of an identified vehicle cannot be substituted by the filing of a contradictory
affidavit as one caused by an unidentified vehicle.‘3

[15] Dealing with the contention advanced on behalf of the appellant that the
incorrect information provided in the claim form was cured by the affidavits which
accompanied it, the Full Court held that it was unavailing because the four affidavits
contained contradictory averments concerning the accident and were incapable of
correcting any error in the claim form. That error, it concluded, remained uncorrected
despite the fact that the appellant should have realised from the content of the
Fund‘s letter of 17 August 2006 that ‗the respondent accepted, on the basis of the
information supplied to it, that it was dealing with a claim in terms of s 17(1)(a)‘.

[16] Since the claim form and the documents submitted to the fund are pivotal to a
decision in this matter, it is necessary to consider the statutory provisions pertaining
thereto. First, the relevant parts of s 24 read as follows:
‗(1) A claim for compensation and accompanying medical report under section 17 (1) shall─
(a) be set out in the prescribed form, which shall be completed in all its particulars;
(b) be sent by registered post or delivered by hand to the Fund at its principal, branch or
regional office, or to the agent who in terms of section 8 must handle the claim, at the
agent's registered office or local branch office, and the Fund or such agent shall at the time
of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.
. . .
(4)(a) Any form referred to in this section which is not completed in all its particulars shall not
be acceptable as a claim under this Act.

3 Fn 6 paras 41-42.

(b) A clear reply shall be given to each question contained in the form referred to in
subsection (1), and if a question is not applicable, the words ―not applicable‖ shall be
inserted.
. . .
(5) If the Fund or the agent does not, within 60 days from the date on which a claim was sent
by registered post or delivered by hand to the Fund or such agent as contemplated in
subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in
all respects.‘

[17] Second, s 19 excludes liability in the event of a failure to provide information
in a particular form. Section 19(f) provides that if the third party refuses or fails:
‗(i) to submit to the Fund or such agent, together with his or her claim form as prescribed or
within a reasonable period thereafter and if he or she is in a position to do so, an affidavit in
which particulars of the accident that gave rise to the claim concerned are fully set out; or
(ii) to furnish the Fund or such agent with copies of all statements and documents relating to
the accident that gave rise to the claim concerned, within a reasonable period after having
come into possession thereof. . . .‘ the Fund shall not be obliged to compensate the
third party in terms of s 17 for any loss or damage. The affidavit and copies of
statements and the documents mentioned in s 19(f) are required to provide details of
how the accident giving rise to the claim arose. It is abundantly clear that the
purpose of this provision is, inter alia, to furnish the Fund with sufficient information
to enable it to investigate the claim and determine whether or not it is legitimate.4

[18] I pause to say something about the primary purpose and objectives of the Act.
It has long been recognised in judgments of this and other courts that the 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‘.5 Accordingly, in interpreting the provisions of the Act, courts are enjoined to
bear this factor uppermost in their minds and to give effect to the laudable objectives
of the Act. But, as the Full Court correctly pointed out, the Fund which relies entirely

4 See further in this regard Geldenhuys & Joubert v Van Wyk & another; Van Wyk v Geldenhuys &
Joubert & another 2005 (2) SA 512 (SCA).
5 Road Accident Fund v M obo M [2005] 3 All SA 340 (SCA) para 12; Aetna Insurance Co v Minister
of Justice 1960 (3) SA 273 (A) at 285E-F; Multilateral Motor Vehicle Accidents Fund v Radebe 1996
(2) SA 145 (A) at 152E-I; Bezuidenhout v Road Accicent Fund 2003 (6) SA 61 (SCA) para 7 and the
cases therein cited.

on the fiscus for its funding should be protected against illegitimate and fraudulent
claims.

[19] It has been held in a long line of cases that the requirement relating to the
submission of the claim form is peremptory and that the prescribed requirements
concerning the completeness of the form are directory, meaning that substantial
compliance with such requirements suffices.6 As to the latter requirement this court
in SA Eagle Insurance Co Ltd v Pretorius7 reiterated that the test for substantial
compliance is an objective one.

[20] In Multilateral Motor Vehicle Accidents Fund v Radebe 1996 (2) SA 145 (A) at
152E-I, Nestadt JA said:
‗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 advantages 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. . . .‘
Although these remarks were made in a different context they articulate, in my view,
the purpose that the claim form is intended to serve.

[21] The argument advanced on behalf of the appellant was in essence the
following. It was contended that although s 17(1) distinguishes between two
categories of claims the fact that the appellant, in completing the claim form,
conveyed the impression that she was advancing a claim relating to an identified
motor vehicle whereas her claim pertained to an unidentified vehicle did not

6 See Rondalia Versekeringskorporasie van Suid-Afrika Bpk v Lemmer 1966 (2) SA 245 (A);
Nkisimane & others v Santam Insurance Co Ltd 1978 (2) SA 430 (A), particularly at 435F–436E; AA
Mutual Insurance Association Ltd v Gcanga 1980 (1) SA 858 (A) at 865B–F; Evins v Shield Insurance
Co Ltd 1980 (2) SA 814 (A) at 831B–F; Guardian National Insurance Co Ltd v Van der Westhuizen
1990 (2) SA 204 (C) at 210B–211F.
7 SA Eagle Insurance Co Ltd v Pretorius 1998 (2) SA 656 (SCA) at 663D-E.

invalidate her claim. In support of this contention, Mr Botha, who appeared on behalf
of the appellant, contended that the claim form ought not to have been read in
isolation but together with the documents that accompanied it. Had that approach
been adopted by the Fund, continued the argument, rather than focusing intently on
a specific paragraph of the form, the Fund would have realised that the claim
advanced by the appellant was that arising  from the driving of a motor vehicle where
the identity of neither the owner nor the driver thereof had been established.

[22] Mr Botha further submitted that even on the acceptance that the claim form ─
read with the accompanying documents ─ contained incorrect or contradictory
information it was not open to the Fund to seize upon that fact and employ it as a
subterfuge to defeat the appellant‘s otherwise legitimate claim. What the Fund ought
to have done, concluded the argument, was to investigate the claim by making
enquiries. For this proposition counsel relied on Constantia Insurance Co Ltd v
Nohamba 1986 (3) SA 27 (A). There, Galgut AJA, after referring to earlier decisions
of this and other courts said (at 39G-H):
As we have seen from the Commercial Union case supra at 517 [Commercial Union
Assurance Co of South Africa Ltd v Clarke 1972 (3) SA 508 (A) at 517E] and the Gcanga
case supra at 865 [AA Mutual Insurance Ltd v Gcanga 1980 (1) SA 858 (A)] the purpose of
the form is to enable the insurance company to "enquire into a claim" and to investigate it. It
is designed to "invite, guide and facilitate such investigation". It follows, in my view, that, if an
insurance company is given sufficient information to enable it to make the necessary
inquiries in order to decide whether "to resist the claim or to settle or to compromise it before
any costs of litigation are incurred", it should not thereafter be allowed to rely on its failure to
make the inquiries.‘

[23] The principal argument advanced on behalf of the Fund in resisting the appeal
went as follows. First, it was contended that no claim had been lodged on behalf of
the appellant in respect of an unidentified vehicle as provided for in regulation 2(3)
which was the claim that the appellant advanced in her action in the court of first
instance. It was submitted that the appellant sought to advance a claim for
compensation as contemplated in s 17(1)(b) of the Act, when in fact, no such claim
had been lodged with the Fund within two years of the date of the accident as
required by regulation 2(3). In elaboration, it was submitted that in completing

paragraph 2(a) of the claim form and unequivocally stating in paragraph 2(d) of the
claim form that the latter was not applicable, the appellant thereby categorically
disavowed any claim for compensation in terms of s 17(1)(b) of the Act. Pointing out
that the requirements of regulation 2(3) were peremptory, counsel contended ─ with
reference to what was said by this court in Geldenhuys & Joubert v Van Wyk &
another; Van Wyk v Geldenhuys & Joubert & another 2005 (2) SA 512 (SCA) ─ that
having regard to the fundamental difference between a claim under s 17(1)(a) and
one under s 17 (1)(b) the incorrect identification of the claim in the claim form had
fatal consequences for the appellant in that no claim other than the one in respect of
which a claim form was lodged is enforceable.

[24] In Geldenhuys this court was considering the question whether regulation 2(3)
made under s 26 of the Act was valid. It reiterated that the distinction that the Act
makes between s 17(1)(a) and s 17(1)(b) claims is fundamental because of its
implications as articulated in Bezuidenhout v Road Accident Fund.8 It went on to say
that ‗the regulatory scheme . . . differs in two ways from the periods the statute
determines for the prescription of identified vehicle claims. First, the two-year period
for lodging a claim is one year shorter than the prescription period the statute
specifies for identified vehicle claims; and, second, the regulatory  scheme makes no
special allowance for minors‘.

[25] It is true that there is, in terms of the Act and regulation 2(3), a fundamental
distinction between a claim under s 17(1)(a) and one under s 17(1)(b). This cannot,
however, be taken to mean that even when the Fund, within the prescribed two year
period is in possession of information which a claimant is statutorily obliged to supply
and which, when read in tandem with the claim form, which in the circumstances of
this case the claimant clearly intended, reveals that the claim really relates to an
unidentified vehicle, the Fund is entitled to repudiate the claim on the basis that no
valid claim had been made. Nor ought the Fund to benefit from its own failure to
clarify with minimal time, effort and expense, whatever confusion the claim form and
attached documentation revealed. This is not a case where no information was
supplied to the Fund in relation to the claim in terms of s 17(1)(b). At worst, for the

8 Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) paras 6 and 15.

appellant, she supplied conflicting information which could be undone with relative
ease. Significantly, it has not been suggested that there is even a whiff of a
fraudulent or made-up claim.

[26] It was submitted on behalf of the Fund that, since no affidavit was filed by the
appellant with the police within 14 days of being able to do so, as was required by
regulation 2(1)(c),9 read with s 17(1)(b) of the Act which was applicable at the time
and which has since been ruled unconstitutional by the Constitutional Court, the
Fund could not have been expected to make enquiries about a claim involving an
unidentified vehicle. Put simply, it was contended that the absence of such an
affidavit together with the claim form created the unambiguous impression that the
claim was one in respect of an identified vehicle. As stated earlier, this ignores the
factually detailed evidence in the accompanying documentation indicating clearly
that the claim was one in respect of an unidentified vehicle. To uphold the Fund‘s
contentions in the circumstances of the present case would be to: (a) elevate form
above substance; (b) be rigidly technical against a just result; and (c) to subvert the
objects of the Act alluded to above. I emphasise that this judgment does not purport
to lay down any general rule but is decided on its own very specific facts

[27] In the result the following order is made:
1 The appeal is upheld with costs.
2 The order of the Full Court is set aside and in its place is substituted the following:
‗The appeal succeeds with costs. The order of Sapire AJ is set aside. In its place is
substituted the following order:
The special plea is dismissed with costs.‘

_________________
X M PETSE
JUDGE OF APPEAL

9 Regulation since declared unconstitutional by the Constitutional Court in Engelbrecht v Road
Accident Fund & another 2007 (6) SA 96 (CC); [2007 (5) BCLR 457 (CC)].

APPEARANCES:

For the Appellant:         E Botha

Instructed by:

Gildenhuys Malatjie Inc, Pretoria

Honey Attorneys, Bloemfontein

For the Respondent:    F A Snyckers SC (with him A Viljoen)

Instructed by:

Lindsay Keller, Care of Maponya Inc, Pretoria

Matsepes, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
16 April 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

PITHEY V ROAD ACCIDENT FUND

The Supreme Court of Appeal (SCA) today handed down their unanimous decision to set
aside the judgment of the North Gauteng High Court, Pretoria upholding the respondent’s
special plea against a claim made against it for compensation for damages arising from a
motor vehicle collision.

The appellant, Ms Johanna Christina Pithey, instituted an action against the Road Accident
Fund (the Fund) for damages she suffered as a result of a motor vehicle collision which
occurred on 29 November 2004. The appellant was unable to establish the identity of either
the owner or the driver of the vehicle which she claimed was the sole cause of the said
collision. This was thus a claim for compensation in terms of s 17(1)(b) of the Road Accident
Fund Act 56 of 1996 (the Act). Her claim, however, was submitted in the form of a claim
under s 17(1)(a) of the Act, which error the Fund seized upon to raise a special plea disputing
their liability to compensate the appellant under this claim. In essence the special plea
contended that the appellant failed to lodge a claim form with the Fund in respect of an
unidentified motor vehicle as required by s 17(1) of the Act and therefore was unenforceable.

The crisp issue that arose from determination was therefore whether a claim for
compensation lodged with the Fund is rendered invalid because the claim form apparently
conveys that it is a claim under s 17(1)(a) of the Act whereas it is evident from the
accompanying documents that such a claim is in terms of s 17(1)(b) of the Act. The South
Gauteng High Court, as court of first instance, upheld the special plea and dismissed the
action with costs. It found that the appellant’s claim form did not relate to an unidentified
motor vehicle but to the motor vehicle specified in the claim form. The North Gauteng High
Court dismissed the appellant’s appeal to it.

The SCA determined that, while it is true that there is a fundamental distinction between a
claim under s 17(1)(a) and one under s 17(1)(b) of the Act, this cannot be taken to mean that
even when the Fund is in possession of information which, when read in tandem with the
claim form reveals that the claim really relates to an unidentified vehicle, the Fund is entitled
to repudiate the claim on the basis that no valid claim had been made. Nor ought the Fund to
benefit from its own failure to clarify with minimal time, effort and expense, whatever
confusion the claim form and attached documentation revealed. This is particularly so when,
as in the present case, information was supplied to the Fund in relation to the claim in terms
of s 17(1)(b). Consequently the SCA held that to uphold the Fund’s special plea would be to:
(a) elevate form above substance; (b) the rigidly technical against a just result; and (c) subvert
the objects of the Act.

In the result the SCA upheld the appeal and substituted the order of the South Gauteng High
Court upholding the special plea with one dismissing the special plea with costs.