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[2011] ZAGPJHC 64
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Makhombothi v Road Accident Fund (46854/2009) [2011] ZAGPJHC 64 (29 April 2011)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
:
46854/2009
DATE
:
29/04/2011
In the matter between:
MBONGISENI
MAKHOMBOTHI
..................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
........................................................................
Defendant
JUDGMENT
C. J. CLAASSEN J
:
This is an action for damages against
the Road Accident Fund in terms of Act 56 of 1996. The issue
currently before me is the
validity of a special plea filed by the
defendant wherein the following is stated:
“
The defendant
pleads that the plaintiff’s claim is in terms of the
Road
Accident Fund Act 56 of 1996
as amended by Act 19 of 2005. In the
case of any claim for compensation brought under the aforesaid Act
the third party shall comply
with regulation 3 made under section 26
of the Act. In the premises the plaintiff has failed and/or neglected
to comply with the
regulation. Therefore the plaintiff’s claim
is under the circumstances unenforceable.”
Let me say immediately that the
special plea does not disclose any defence whatsoever. It states
that the plaintiff’s claim
is unenforceable. That can never be
the case. It is either enforceable in this Court or in a tribunal
which has to be established
in terms of the Amendment Act No 19 of
2005. But to say that it is unenforceable for lack of compliance
with regulation 3, does
not disclose a defence.
Be that as it may, the special plea
has to be read in the light of the pleadings as a whole. In
paragraph 3 of the plaintiff’s
particulars of claim the
following is alleged:
“
At all relevant
and material times hereto the defendant is liable in terms of the Act
and its regulations to compensate the plaintiff
in respect of the
damages sustained by him as a result of the accident referred to in
paragraph 4 below.”
The defendant pleads to this
paragraph as follows:
“
Save to admit its
liability in terms of section 17 (a) of the Road Accident Fund 56 of
1996, the defendant has no knowledge of the
balance of the
allegations herein contained and accordingly does not admit same and
puts the plaintiff to the prove thereof.”
Mr du Plessis for the plaintiff
submitted that this maner of pleading in fact constitutes an
admission that this Court has jurisdiction
to hear the matter. The
plaintiff is entitled to enforce the claim in this Court and need
not have the claim for general damages
referred to a tribunal. The
correctness of his submission depends upon what is meant by the
defendant in paragraph 3 of its plea.
Mr Pilusa for the defendant
submitted that the reference to “section 17(a)” is
actually incorrect and it should have
referred to section 17(1)(a)
of the Act.
This particular section has two
pre-suppositions. The first is that it deals with an instance where
the identity of the driver
or the owner of the insured vehicle has
been established. The second refers to a situation where the
identity of the driver or
the owner has not been established. These
two pre-suppositions are contained in subparagraphs (a) and (b).
They are two directly
opposing pre-suppositions for purposes of
applying section 17(1).
The admission that section 17(1)(a)
applies and that the defendant is liable in terms thereof, has to be
investigated. This subsection
states the following:
“
17(1) The fund or
an agent shall –
(a) subject to this Act,
in the case of a claim for compensation under this section arising
from the driving of a motor vehicle
where the identity of the owner
or 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 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: Provided that the obligation of
the fund to compensate a third party for non-pecuniary loss shall be
limited to compensation
for a serious injury as contemplated in
subsection (1A) and shall be paid by way of a lump sum.
(1A)(a) Assessment of a
serious injury shall be based on a prescribed method adopted after
consultation with medical service providers
and shall be reasonable
in ensuring that injuries are assessed in relation to the
circumstances of the third party.
(b) The assessment shall
be carried out by a medical practitioner registered as such under the
Health Professions Act 56 of 1974.”
Mr Pilusa for the defendant sought to
argue that the admission extends only to the first pre-supposition
contained in subparagraph
(a) and not the remainder of the
subsection. In effect he submitted that the phrase starting with
the words, “be obliged
to compensate…” is
excluded from the admission that section 17(1)(a) applies. I cannot
agree with such an interpretation.
Subsection 1(a) does not form a
completed sentence. It merely states a supposition of the identity
of the driver having been
established and says nothing further. In
order for that subparagraph to make any sense it has to be read with
the balance of
the section wherein the obligation of the fund or the
agent is set out namely, to compensate the third party for any loss
or
damage.
The portion commencing with the
words, “be obliged to compensate…” forms an
integral part of subsection (a)
in the same way as that portion will
also form an inherent part of subsection (b). One cannot read
subsection (a) without reference
to the balance of the section
because that would make no sense at all. Subsection (a) does not
import any liability to do anything
on the part of the fund or the
agent. It is only when read in the light of the remainder of the
main section that the obligation
resting upon a fund or an agent
where the identity of the driver has been established, is described.
I am therefore of the view that the
admission made in paragraph 3 of the defendant’s plea
constitutes an admission that
the plaintiff is entitled to seek
compensation in this Court from the fund as a result of the
collision.
The special plea raising a lack of
compliance by the plaintiff of regulation 3 is, in any event,
directly contradictory to the
plea in paragraph 3. I am therefore of
the view that Mr du Plessis’s submission is correct that it
constitutes an admission
that the plaintiff is entitled to seek
compensation in this Court and that the jurisdiction of this Court
is not ousted.
However, if I am wrong in this
conclusion, it is noteworthy that the pre-trial minute puts the
issue beyond any question. In paragraph
4.3 thereof, regarding the
parties’ agreement as to quantum, the following is stated:
“
Consequently the
parties agreed that the quantum aspect of the matter shall proceed on
the claims for general damages accrued and
prospective loss of
income. The defendant referred the plaintiff to paragraph 2.”
In paragraph 2 there is a reference
to the question of separation of issues. In paragraph 2.1 it is
recorded that the defendant
suggested that the issue of general
damages be postponed to afford the plaintiff an opportunity to
comply with regulation 3.
In my view, that does not detract
from the clear admission contained in paragraph 4.3 of the pre-trial
minute that the plaintiff’s
entitlement to pursue a claim for
general damages in this Court was agreed to and admitted. It is
expressly stated that the parties
agreed thereto.
In these circumstances I am of the
view that there is no substance in the special plea and I make the
following order:
The special plea is dismissed with
costs.
THUS DONE AND SIGNED AT JOHANNESBURG
ON THIS 27
th
DAY OF JUNE 2011.
_________________________
C.J.CLAASSEN
JUDGE OF THE HIGH COURT