The Fiduciary Institute of Southern Africa (FISA) has developed an extensive archive of court case summaries relating to fiduciary matters. The summaries are written by FISA CEO, Jan du Plessis. Members can access the court cases on the website. A recent example follows below:
Court case on Section 17(6) of the Road Accident Fund Act, 56 of 1996, declared unconstitutional
Chengeto v Road Accident Fund and Another (3733/2022) [2026] ZALMPPHC 6 (19 January 2026)
https://www.saflii.org/za/cases/ZALMPPHC/2026/6.html
The applicant (C) approached the court for an order declaring that the statutory requirement of section 17(6) of the Road Accident Fund Act, 56 of 1996, that medical costs which must be “already incurred” before an interim payment can be made, constitutes unfair discrimination. Her argument was that the requirement effectively reserves the benefit of interim relief for the wealthy, who have the financial capacity to create such a liability, while excluding the poor.
The First respondent (The Fund) and the second respondent (the Minister of Transport) opposed the application.
The facts are the following:
The applicant was a passenger in a December 2019 collision and suffered serious injuries, including a broken jaw, loss of teeth, and visible scarring. She was a foreign national and a hawker by trade, and was therefore categorized as an indigent person.
Her doctors recommended reconstructive surgery and dental restoration, but she could not pay upfront and therefore could not “incur” the costs in the legal sense as required by section 17(6). Without incurring debt, she could not provide the proof the Fund demanded for interim payments.
The applicant sought an interim payment from the Fund to facilitate this treatment. She was met with the statutory wall of Section 17(6) of the Act, which stipulates that the Fund is only liable to make interim payments for costs “already incurred.” Because she could not afford to incur the debt, she was denied the payment. She was thus trapped in a cycle of poverty: she needed the money to get treatment, but needed treatment (and incur the cost) to get the money.
Section 17(6) of the Act provides as follows:
“The Fund, or an agent with the approval of the Fund, may make an interim payment to the third party out of the amount to be awarded in terms of subsection (1) to the third party in respect of medical costs, loss of income and loss of support: Provided that the Fund or such agent shall, notwithstanding anything to the contrary in any law contained, only be liable to make an interim payment in so far as such costs have already been incurred and any such losses have already been suffered.”
The respondents’ contention was that the declaration of invalidity is unnecessary because the legal system provides adequate alternatives. They inter alia raised the following defences.
The section 17(4) undertaking:
The respondents argued that any prejudice to indigent claimants is cured by a section 17(4)(a) Undertaking, suggesting that a claimant can simply present the Undertaking to a medical provider to obtain treatment.
The court (Diamond A J) found that this argument ignores the commercial reality of the Fund’s standing in the economy, as they previously approached the court in Road Accident Fund v Legal Practise Council 2021(6) SA 230 GP (Road Accident Fund v Legal Practice Council and Others (58145/2020) [2021] ZAGPPHC 173; [2021] 2 All SA 886 (GP); 2021 (6) SA 230 (GP); [2021] HIPR 166 (GP) (9 April 2021)), effectively admitting a liquidity crisis and seeking to suspend payments for 180 days.
The court thus found that private medical practitioners would be hesitant to accept undertakings from the Fund and ruled that a section 17(4)(a) undertaking is a theoretical remedy that fails in practice as it does not provide the immediate liquidity required to secure admission to a private hospital or to pay a deposit for a necessary operation. It is not a functional substitute for the interim cash payments that wealthier claimants can secure under section 17(6).
Rule 34A of the Uniform Rules of Court
The respondents further argued that the applicant should have used Rule 34A to compel an interim payment.
The court found this submission to be legally untenable. Referring to Road Accident Fund v Manqina 2023(2) SA 1 (ECM) (Road Accident Fund v Manqina (CA20/2019) [2020] ZAECBHC 5; 2020 (5) SA 202 (ECB) (2 February 2020)), the court found that Rule 34A cannot assist indigent RAF claimants where section 17(6) blocks interim payments. Although the Respondents argued that the Applicant should have invoked Rule 34A, the court held that this is legally impossible: section 17(6) expressly overrides any conflicting law, rendering Rule 34A ineffective for expenses not yet incurred.
The use of public health care facilities
The Fund contended that any prejudice allegedly suffered by the applicant is mitigated, if not cured, by the availability of treatment in the public health system. On this argument, indigent claimants such as the applicant can receive adequate care in provincial hospitals, which can then claim directly from the Fund under section 17(5), thereby obviating the need for interim cash payments to finance private treatment.
The Court found that the Fund’s suggestion that indigent claimants can simply rely on public healthcare does not withstand scrutiny. While the Fund argued that provincial hospitals could provide adequate treatment and then recover costs directly from the RAF, the court reaffirmed that this so‑called “public healthcare defence” carries an evidential burden. A defendant must show that the claimant will, in fact, receive care of a comparable standard in the public sector. In this case, neither the Fund nor the Minister of Transport placed any such evidence before the court. The court thus found that any bald and generalized statement that a victim of a motor vehicle collision will receive equal treatment in a public health facility is untenable.
The court thus held that reliance on public healthcare is no answer to the Applicant’s claim. The evidence does not support the proposition that victims of motor vehicle collisions can obtain care in the public system that matches the standard, timeliness, or availability of private treatment.
The Constitutional analysis: Equality and Dignity
The court found that Section 17(6) of the RAF Act creates a constitutional problem by indirectly discriminating against indigent claimants. Although the provision appears neutral, its practical effect is that only those who can afford to incur medical costs upfront may access interim payments. Poor claimants, who cannot incur such costs, are excluded. This differentiation on socio-economic grounds amounts to indirect discrimination under section 9(3) of the Constitution.
The court referred to the Harksen v Lane 1998(1) SA 300 (CC) (Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) (7 October 1997)) test, and found that the differentiation has no legitimate government purpose and disproportionately harms those living in poverty. Referring to Social Justice Coalition and Others v Minister of Police and Others 2019 4 SA (WCC) (Equality Court) (Social Justice Coalition and Others v Minister of Police and Others (CCT 121/21) [2022] ZACC 27; 2022 (10) BCLR 1267 (CC) (19 July 2022)) the court confirms that poverty undermines dignity and equality in a manner comparable to the listed grounds of discrimination. The result is a two‑tier system: wealthier victims can choose private care and receive interim payments, while indigent victims are effectively confined to the public system and denied funding.
This “separate but equal” structure entrenches inequality and diminishes dignity. Evaluated against constitutional principles, the court concluded that the discrimination faced by indigent road‑accident victims is unfair.
Justification (section 36 of the Constitution)
The court found that once unfair discrimination was established, the State bore the burden of justifying the limitation under section 36 of the Constitution. The Minister of Transport offered only legislative history and provided no evidence of the financial impact, policy rationale, or any legitimate purpose served by restricting interim payments to costs “already incurred”. Without justification, the limitation on equality and dignity rights is unconstitutional.
Remedy
The court found that when a statutory provision is unconstitutional, section 172 of the Constitution requires a declaration of invalidity and empowers the Court to craft a just and equitable remedy. The court decided on a declaration of invalidity coupled with an interim reading in.
Order
The court made the following order:
- The proviso to Section 17(6) of the Road Accident Fund Act 56 of 1996
is declared unconstitutional and invalid to the extent that it limits the power of the Road Accident Fund to make interim payments only to costs that have “already been incurred”, thereby unfairly discriminating against indigent claimants who are financially unable to incur such costs.
- The legislature is afforded 24 months to rectify Section 17(6) so that the
section will be constitutionally compliant.
- The Declaration of Invalidity in paragraph one is suspended for the 24-
month period mentioned in paragraph 2 above.
- To remedy the invalidity during the period mentioned in paragraph 3
above, Section 17(6) of the Road Accident Fund Act 56 of 1996 must be read as follows (the reading-in is indicated in bold):
“The Fund, or an agent with the approval of the Fund, may make an interim payment to the third party out of the amount to be awarded in terms of subsection (1) to the third party in respect of medical costs, loss of income and loss of support: Provided that the Fund or such agent shall, notwithstanding anything to the contrary in any law contained, only be liable to make an interim payment in so far as such costs have already been incurred and any such losses have already been suffered, unless the third party is indigent and the costs constitute necessary medical expenses which the third party is financially unable to incur or sustain without an interim payment.”
- The orders in paragraphs 1 – 4 are referred to the Constitutional Court
for confirmation in terms of Section 172(2)(a) of the Constitution.
The respondents were ordered to pay the costs.
Comment:
Practitioners, especially those acting as Curator Bonis, must note that this case has confirmed a major shift in how interim payments under section 17(6) of the Road Accident Fund Act must operate. The ruling directly affects practitioners assisting seriously injured, low‑income clients who cannot afford medical treatment or absorb income loss while their claims are pending.
