- The RAF is asking for condonation for submitting its appeal about four months late, after a January 2026 ruling declared part of the Road Accident Fund Act unconstitutional.
- Acting Judge GJ Diamond of the High Court in Polokwane found that insisting medical costs must already have been incurred unfairly discriminates against indigent accident victims.
- The RAF argues that existing ways to fund future medical treatment were not properly considered and disagrees with the need for a constitutional remedy.
The Road Accident Fund (RAF) is contesting a ruling that could alter how injured road accident victims get money for medical treatment while waiting for their compensation claims to be finalised. The Constitutional Court has scheduled the matter for 5 November 2026.
The dispute has its roots in Section 17(6) of the Road Accident Fund Act, which governs interim payments made to accident victims before their claims have been finally settled. This provision limits these payments to medical costs already incurred and losses of income or support that have already occurred.
In a judgment delivered on 19 January 2026, Acting Judge GJ Diamond of the High Court in Polokwane declared the restriction unconstitutional and invalid, but only to the extent that it limits interim payments to medical costs already incurred.
The court found that this restriction unfairly discriminated against indigent claimants who could not afford to incur those expenses in the first place.
The declaration was suspended for 24 months to give Parliament time to fix the constitutional problem. In the meantime, the court added wording to the law to allow interim payments for necessary medical expenses that indigent claimants could not afford without an advance payment.
The RAF now wants the Constitutional Court to set aside that order. Its appeal and the related constitutional confirmation proceedings will require the highest court to consider whether the existing law is constitutionally flawed and whether the solution created by the High Court was justified.
How the dispute arose
Nyambirai Chengeto was injured in a motor vehicle collision on 24 December 2019 and lodged a claim with the RAF on 1 October 2020. According to the RAF’s written submissions, she received treatment at Polokwane Provincial Hospital, which submitted a claim of R39,909 directly to the Fund. The RAF paid the hospital in full on 17 March 2021.
The merits of Chengeto’s claim were subsequently settled on 11 October 2021 on the basis that the insured driver was solely negligent. The settlement was made by an order of the court. Chengeto launched her constitutional challenge in 2022, arguing against the restriction that required medical costs to have already been incurred before interim payments could be made.
On 12 May 2022, the RAF offered her R727,725.50 for loss of earnings, which she accepted the following day. It also furnished an undertaking under Section 17(4)(a) of the Act for future medical expenses.
The RAF maintains that Chengeto did not use the undertaking and that her individual compensation dispute had been settled by the time the constitutional application was argued. It contends that the High Court should not have proceeded to determine the constitutional issue once the dispute between the parties had been extinguished.
The financial barrier facing injured claimants
The constitutional challenge concerns the difference between being entitled to compensation and being able to afford treatment while waiting for that compensation.
Under Section 17(6), the RAF may make an interim payment from the amount ultimately awarded to a claimant. However, the disputed proviso restricts payment to costs already incurred and losses already suffered.
For an injured person without savings or access to credit, the requirement may create a practical obstacle. A claimant might need medical treatment but lack the money required to obtain it. If the claimant cannot incur the expense, the statutory condition for an interim payment may not be met.
The High Court found that this arrangement operated as a wealth test, disadvantaging claimants who could not afford private medical expenses upfront. The RAF disputes that interpretation. In its written submissions to the Constitutional Court, it argues that the High Court treated the absence of an upfront cash payment as equivalent to an inability to incur a cost.
The Fund maintains that a cost may be incurred when a legal obligation to pay arises, even if the claimant has not personally paid the provider. It also argues that the legislation must be considered as a whole rather than treating Section 17(6) in isolation.
The RAF relies on alternative funding mechanisms
The Fund says other provisions of the Act already provide mechanisms through which accident victims can access medical treatment without first paying the full cost themselves.
Section 17(4)(a) allows the RAF to furnish an undertaking to compensate a claimant for future medical expenses. Section 17(5) enables medical providers to claim directly from the Fund for treatment and other services supplied to accident victims.
The RAF argues that these provisions can facilitate treatment without requiring claimants to advance their own money. It further submits that the High Court did not have sufficient evidence to conclude that medical providers generally refused RAF undertakings or that the existing mechanisms were incapable of securing necessary treatment.
The Fund also argues that requiring costs to have been incurred provides a verifiable basis for interim payments, helping to prevent fraud, duplicate claims and uncertain financial exposure. Its written submissions state that the constitutional question is not whether Parliament could design a more generous system, but whether the system it enacted falls below the constitutional standard.
The RAF therefore asks the Constitutional Court to set aside the High Court’s order and dismiss the constitutional challenge. Alternatively, it argues that the declaration of invalidity should not be confirmed.
The dispute over whether the High Court should have heard the case
The RAF has also challenged the High Court’s decision to determine the constitutional question after Chengeto’s individual claim had been settled. It argues that the court relied on the potential disadvantage faced by a broader class of indigent claimants without evidence establishing that a claimant had actually been denied necessary treatment because of the disputed provision.
The RAF also disputes the High Court’s reliance on separate litigation involving the Legal Practice Council (LPC), arguing that the proceedings did not establish whether medical service providers generally accept its guarantees or undertakings for treatment costs.
The Fund says Chengeto had received treatment at a public hospital and had been given an undertaking for future medical expenses. It maintains that there was no evidence that the RAF had refused to honour the undertaking or that medical providers had rejected comparable guarantees.
The High Court nevertheless considered the constitutional issue because it affected a broader class of claimants and was likely to arise again. The RAF disputes the basis for exercising that discretion, arguing that the importance of a constitutional issue does not automatically justify deciding a dispute that no longer has a practical effect on the parties.
It also challenges the High Court’s reading-in remedy, arguing that the order went beyond the permissible limits of judicial intervention and raised separation-of-powers concerns.
Constitutional Court proceedings
The matter is before the Constitutional Court in two related proceedings. In CCT 148/2026, the court must decide whether to confirm the declaration of constitutional invalidity. In CCT 176/2026, the RAF appeals against the High Court’s judgment and order.
The RAF’s application for condonation concerns its late filing of the notice of appeal. Under the Constitutional Court’s rules, the notice was due by 9 February 2026, but the Fund’s founding affidavit acknowledges that the appeal was lodged about four months late.
The RAF attributes the delay to internal approval processes, operational and administrative pressures, the need to assess the merits of an appeal and the requirement for Board approval. It says the matter was not initially regarded as urgent because the High Court’s order was suspended and would require confirmation by the Constitutional Court.
The Fund maintains that it acted as expeditiously as possible once the necessary approvals and instructions were obtained. It argues that the delay caused no material prejudice and that the appeal raises substantial constitutional and statutory questions.
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