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[2015] ZAGPJHC 120
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Scott v Road Accident Fund (13/33469) [2015] ZAGPJHC 120 (11 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13/33469
DATE:
11 JUNE 2015
In the matter
between:
SCOTT:
LEIGH-ANNE
..............................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
J
U D G M E N T
KEIGHTLEY,
AJ
:
INTRODUCTION
[1] The plaintiff in
this matter is Leigh-Anne Scott (“Ms Scott”). She
has instituted a claim for compensation
against the defendant, the
Road Accident Fund (“the Fund”), in terms of the Road
Accident Fund Act 56 of 1996 (“the
Act”).
[2] The Fund raises
a special plea in respect of Ms Scott’s claim. When the
matter was allocated for trial, the parties
were directed to argue
the special plea as a preliminary issue. It was directed
further that the special plea be determined
on the basis of the
documents and pleadings filed to date. This judgment is
concerned only with the special plea, the details
of which I will
discuss shortly.
[3] The following
chronology of relevant events provides context to the issues that
arise for determination:
[3.1] On 13
September 2009 Ms Scott was a passenger on a motorcycle driven by one
Jonathan Meyer (“the driver”).
Ms Scott was 18
years old at the time.
[3.2] At
approximately 11H00, and at or near Erasmus Road, Edenglen, the
motorcycle was involved in an accident.
[3.3] Ms Scott was
hospitalized for approximately five days for treatment as a result of
injuries she sustained in the accident.
[3.4] On 26 June
2012 Ms Scott’s attorneys lodged an RAF 1 claim form with the
Fund on her behalf (“the claim form”).
The claim
form provided details of the police CAS number relating to the
accident, and gave the driver’s name and address.
[3.5] Ms Scott did
not file an affidavit describing how the accident occurred together
with her claim form. This fact is significant
for purposes of
the special plea raised by the Fund.
[3.6] On 31 July
2013, Ms Scott’s attorneys wrote to the Fund providing details
of the registration number of the motorcycle
involved in the
accident. They requested that the claim form be amended to
include these details.
[3.7] On 19 August
2013 Ms Scott deposed to a short affidavit (“Ms Scott’s
affidavit”), the pertinent details
of which are that she had
been a passenger on a motorcycle driven by Mr Meyer on 13 September
2009, they were involved in an accident
and she had sustained serious
injuries.
[3.8] It seems that
this affidavit was provided to the Fund directly, although there is
no proof of exactly when this was done.
As later events show, a copy
was subsequently sent to the Fund’s attorneys.
[3.9] On 9 September
2013 Ms Scott’s attorneys issued summons in respect of her
claim. The particulars of claim allege
that the driver was
negligent and that he was the sole cause of the accident. They
allege further that Ms Scott has been
disabled and disfigured by the
injuries, and that she has suffered pain and loss of amenities of
life.
[3.10] For reasons
that are unknown, the summons was only sent to the sheriff for
service on the Fund on 22 January 2014.
[3.11] The Fund
filed a plea (excluding the special plea) on 7 March 2014.
[3.12] On 18 June
2014 the Fund’s attorneys wrote to Ms Scott’s attorneys
requesting further details regarding the claim.
They requested,
among other things, Ms Scott’s affidavit in terms of section
19(f)(i) of the Act.
[3.13] In Ms Scott’s
attorneys response dated 22 July 2014, they advised that the section
19(f)(i) affidavit had already been
served on the Fund.
However, they enclosed a copy of Ms Scott’s affidavit together
with their reply.
[3.14] On 21 August
2014 the Fund filed an amended plea, incorporating the special plea.
THE SPECIAL PLEA
[4] The Fund’s
special plea comprises a main and an alternative plea.
[5] In its
main
plea, the Fund contends that its obligation to compensate a claimant
is limited by section 19(f)(i). Section 19 (f)(i) provides,
in
relevant part, that:
“
The Fund …
shall not be obliged to compensate any person in terms of section 17
for any loss or damage … if the third
party refuses or fails …
to submit to the Fund …, 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.
”
[6] The Fund points
to Ms Scott’s failure to provide the requisite affidavit
together with her claim form. It also points
to the fact that
Ms Scott’s affidavit (submitted subsequently) was only deposed
to on 19 August 2013.
[7] The Fund
contends that in these circumstances Ms Scott’s claim “was
completed” only on that date, being some
3 years and 11 months
after the collision. Consequently, it submits, Ms Scott’s
claim has prescribed under section
23 of the Act, which section
provides that a claim must be submitted within 3 years of the
accident giving rise to the claim.
[8] The Fund’s
alternative
special plea is based on the alleged defective
nature of Ms Scott’s affidavit when measured against the
requirements of section
19 (f)(i).
[9] It points out
that Ms Scott’s affidavit does not contain a version of the
collision or of the negligence of the driver.
The affidavit
fails to comply with section 19(f)(i) in this regard, which requires
that the affidavit must set out fully the particulars
of the accident
that gave rise to the claim. In the circumstances, submits the
Fund, Ms Scott has failed to comply with section
19(f)(i) of the Act,
and the Fund is not obliged to compensate her.
THE RELEVANT
PROVISIONS OF THE ACT
[10] I have already
set out the provisions of section 19(f)(i). In addition to that
section, the provisions set out below
are relevant to the issues
raised in this matter.
[11] Section 17(1)
of the Act provides, in relevant part, as follows:
“
The Fund …
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 with
the third party has suffered as a result of any
bodily injury to
himself or herself … caused by or arising from the driving of
a motor vehicle by any person at any place
within the Republic.
”
[12] Section 24
deals with the procedure for a claim for compensation. Section
24 (1) provides, in relevant part, that:
“
A claim
for compensation … 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 …
.
”
[13] In terms of
section 24(5):
“
If the
Fund .. does not, within 60 days from the date on which a claim was
sent by registered post or delivered by hand to the Fund
… as
contemplated in subsection (1), object to the validity thereof, the
claim shall be deemed to be valid in law in all
respects.
”
[14] Section 24(6)
places a limitation on the enforceability of legal proceedings.
It provides that:
“
No claim
shall be enforceable by legal proceedings commenced by a summons
served on the Fund …-
(a)
before the expiry of a period of 120 days from the date on
which the claim was sent or delivered by hand to the Fund …;
and
(b)
before all the requirements contemplated in section 19(f) have
been complied with.
”
[15] Finally,
section 23 governs the prescription of claims under the Act. It
provides:
“
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections (2) and (3), the right to claim compensation
under section 17 from the Fund … in the case where the
identity of either the driver or the owner (of a motor vehicle) has
been established, shall become prescribed upon the expiry of a period
of three years from the date upon which the cause of action
arose.
…
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of … section 24 shall prescribe before the expiry
of a
period of five years from the date on which the cause of action
arose.
”
THE MAIN SPECIAL
PLEA
[16] The Fund’s
main special plea rests on two fundamental premises:
[16.1]first, that it
is a peremptory obligation on all claimants to file an affidavit
under section 19(f)(i) of the Act; and
[16.2]second, that
the filing of a section 19(f)(i) affidavit is a necessary requirement
to “complete” (the language
used in the special plea) or
“perfect” (as Mr Philliips for the Fund put it in oral
argument) a claim. In other
words, until the affidavit is
filed, the claim has not been “lodged in terms of section 24”,
with the result that the
three-year prescription period under section
23(1) applies, rather than the five-year prescription period provided
for under section
23(3).
[17] Much of
counsels’ written and oral argument before me was directed at
the first of these premises. Mr Phillips
for the Fund submitted
that the filing of a section 19(f)(i) affidavit was peremptory.
He relied in this regard on
the decision by Kroon J in
Nonxango
v Multilateral Motor Vehicle Accidents Fund
(2005) 4 All SA 567
(SE), in which it was held that:
“
The
correct interpretation in my judgment is that like the submission of
a claim form the submission of the affidavit required by
the article
was (subject to the qualification that the claimant be in a position
to submit one) a peremptory requirement; as to
what was to be
contained in the affidavit, the prescription in the article was
directory and substantial compliance therewith would
be
sufficient.
”
[1]
[18]
Kroon
J expressly differed in this regard from the conclusion reached by
this court in the matter of
Moskovitz
v Commercial Union Ins. Co. of SA Ltd
1992 (4) SA 192
(W). In
Moskovitz
,
Burman AJ held that the affidavit requirement was directory only, and
that substantial compliance would be sufficient to meet
it.
[2]
[19] Mr Van den
Baselaar who appeared for Ms Scott pointed out that I was enjoined to
follow the precedent set by this court in
Moskowitz
unless I
was satisfied that it was clearly wrong. He submitted that I
should reject the approach adopted by Kroon J in another
Division.
In addition, he submitted that it was clear from section 19(f)(i)
that not all claimants are required to file an
affidavit under that
section. He submitted that this was indicated by the inclusion
of the clause “
if he or she is in a position to do so
”
in section 19(f)(i). He contended that the papers filed in the
matter, and particularly the expert reports, indicated
that Ms Scott
had suffered amnesia and had no recollection of how the accident had
occurred. The effect of this was that
Ms Scott was unable to
give any particulars about how the accident had occurred.
Consequently, according to Mr Van den Baselaar,
Ms Scott fell into a
category of claimants to whom section 19(f)(i) simply does not apply.
[20] The Fund does
not dispute that Ms Scott has no recollection of the accident.
However, in my view, I need not trouble
myself with reaching a
determination on the question of whether, despite this, Ms Scott was
under a peremptory obligation to file
a section 19(f)(i) affidavit.
In my view, the Fund’s main special plea is capable of being
determined on the basis
of the second premise identified above.
For present purposes, and without making any determination on the
issue, I will assume
that Ms Scott was obliged to file an affidavit
under section 19(f)(i).
[21] In order to
succeed in its main special plea, the Fund must satisfy the court
that the process of lodging a claim with the
Fund is only completed
when the section 19(f)(i) affidavit is submitted. In other
words, until the affidavit is submitted,
there is no claim that “has
been lodged in terms of section …24”, for purposes of
determining the relevant prescription
period under section 23.
[22] The Act
contains no express provision to this effect.
[23] As I have
indicated, the process for initiating a claim for compensation is
found in section 24. This requires that the
claim must be “set
out in the prescribed form”, completed in all its particulars,
and that the form must be hand delivered,
or sent to the Fund by
registered post.
[24] It is clear
from section 19(f)(i) that the requisite affidavit may be filed
subsequent
to the filing of the claim form under section 24,
provided this is done within a reasonable period thereafter.
From these
provisions it must be inferred that the Legislature did
not envisage the affidavit as forming a necessary part of the claim
form.
In other words, a “claim in the prescribed form”
includes a claim that is not accompanied by a section 19(f)(i)
affidavit.
[25] The RAF 1 form,
which is the form prescribed in the Regulations under the Act,
directs a claimant that: “In an affidavit
to be attached to
this claim form, please describe how the accident occurred.”
This appears in part 5 of the form.
Although this direction
seems to require that the affidavit must the claim form, this cannot
alter the provisions of the Act which
permit the subsequent filing of
a section 19(f)(i) affidavit. Counsel for the Fund did not
suggest that it did.
[26] Despite the
clear wording of section 19(f)(i), the Fund submits that although a
claim may be initiated by the submission of
the RAF1 form without a
section 19(f)(i) affidavit, it is not “completed” or
“perfected” until the affidavit
is filed. It
submits that this is the effect of section 19(f)(i) read with section
section 24(6) of the Act. As spelled out
in more detail earlier,
section 24(6) provides that a claim is not “enforceable by
legal proceedings commenced by a summons
served on the Fund before
all requirements contemplated in section 19(f) have been complied
with.”
[27] The Fund
contends that the effect of these provisions is that a claimant has
no valid legal claim until the section 19(f)(i)
affidavit is
submitted. It says that in this case, Ms Scott did not have a
valid claim without submitting her affidavit.
By the time she
submitted the affidavit, it was too late. Any legal claim she
may then have had as a result of the affidavit
being filed had
already prescribed under section 23. On this basis, the Fund
submits that it is not liable to compensate
Ms Scott.
[28] Prior to the
adoption of the present Act, the Multilateral Motor Vehicle Accidents
Fund Act 93 of 1989 (“the 1989 Act”)
governed third party
compensation claims. Article 48 (f)(i) of the 1989 Act was
couched in virtually identical terms to the
current section
19(f)(i). The Appellate Division had cause to consider the
effect of article 48(f)(i) in
Touyz v Greater Johannesburg
Transitional Metropolitan Council
[1995] ZASCA 161
;
1996 (1) SA 950
(A). It
held that:
“
That
article (article 48(f)(i)) does not, however, create a limitation on
the general liability imposed by art 40. What it
does, is to
provide for the
termination
of
a
claim which has already arisen by virtue of art 40
.
”
[3]
(emphasis added)
[29]
Article
40 under the 1989 Act was the equivalent of section 17 of the present
Act. The Appellate Division went on to hold
that it was for the
defendant in a claim under the Act to prove that the claim was
terminated due to non-compliance with article
48(f)(i).
[4]
[30] In my view,
this authority is directly at odds with the approach adopted by the
Fund. On my understanding of the dictum
in the
Touyz
case, the submission of a section 19(f)(i) affidavit does not
operate, as the Fund submits, so as to “complete” or
“perfect” a claim for compensation under section 17(1).
Instead, the legal effect of section 19(f)(i) lies in
what occurs
when it is breached. The legal effect of a failure to comply
with section 19(f)(i) is to terminate an existing
claim for
compensation. The claim comes into existence when a claim for
compensation is delivered in accordance with section 24(1).
It
subsists unless and until the Fund is able to establish that the
claimant has acted in breach of section 19(f)(i). Thus,
section
19(f)(i) operates so as to terminate a claim, rather than to complete
or perfect it.
[31] In my view,
section 24(6) does not take the matter further for the Fund.
This section forms part of the provisions governing
the procedure for
claims under the Act. It is not aimed at regulating the
substantive validity of a claim for compensation.
The purpose
of this section appears to me to be to ensure that claims are not
pursued by way of litigation until the Fund has been
given sufficient
opportunity to assess them and to determine whether it should accept
liability or defend the matter in court.
[32] In fact, both
counsel before me were of the same mind that the effect of section
24(6) in the present case would be to delay
Ms Scott’s action
against the Fund. Of course, this is assuming that I find that
Ms Scott is in breach of section 19(f)(i)
of the Act. This
issue falls for determination under the Fund’s alternative
special plea, to which I will shortly turn.
[33] For the reasons
set out above, I am unable to uphold the Fund’s main special
plea. I find that it was not necessary
for Ms Scott to submit
her affidavit in order to “complete” or give legal
validity to her claim against the Fund.
Once she delivered her
claim to the Fund, albeit without her affidavit, it had been “lodged
… in terms of section
24”. In terms of section
23(3), Ms Scott had five years from the date of the accident within
which to file her summons.
Ms Scott proceeded to file summons within
this five-year period. At that time the Fund had not
established any breach of
section 19(f)(i) by Ms Scott. In the
circumstances, her claim had not been terminated, and the summons
interrupted the running
of prescription.
[34] In the
circumstances, the Fund’s main special plea is dismissed.
THE
ALTERNATIVE SPECIAL PLEA
[35] In the
alternative, the Fund submits that Ms Scott’s affidavit does
not comply with the requirements of section 19(f)(i)
of the Act in
that it fails to include particulars of the accident that gave rise
to her claim. The Fund submits that the
affidavit does not
contain a version of the accident, nor does it ascribe any negligence
to any party.
[36] For this
reason, the Fund pleads that it is not liable to compensate Ms Scott.
[37] Counsel for Ms
Scott conceded in oral argument before me that his client’s
affidavit is deficient in terms of what the
Act requires an affidavit
under section 19(f)(i) to contain. However, what is contended
for on behalf of Ms Scott is that
she was unable to give a version in
her affidavit as to how the accident occurred because she had no
memory of the accident.
It was submitted that the expert
neurologists’ reports filed during the course of litigation by
both Ms Scott and the Fund
established that she had suffered amnesia
as a result of her injuries.
[38] Insofar as the
affidavit falls short of what is required by section 19(f)(i), it is
submitted on behalf of Ms Scott that there
was no “refusal or
failure” on her part to provide the requisite information in
her affidavit within the meaning of
that section.
[39] In support of
these contentions, reference was made to a line of Appellate Division
authority establishing that in the context
of similar provisions in
the statutory predecessors to section 19(f)(i) of the Act the term
“fails” means a deliberate
failure rather than a mere
omission or deliberate inaction. In
Union and South-West
Africa Insurance Co Ltd v Fantiso
1981 (3) SA 293
(A), it was
held that:
“
In view of
the severity of the penalty, a final loss of claim, one has to
consider the failure to furnish copies of reports in a
restrictive
manner, restrictive in the sense that a court will not deprive the
plaintiff of his right to claim compensation unless
he can be said to
have obstructed the insurer from getting the information which he is
entitled to.
”
[5]
[40]
The
Appellate Division subsequently upheld this interpretation of “fails”
in the
Touyz
case, which was decided under the 1989 Act. It held that there
must be a deliberate withholding of the requisite statement
or
document before it can be found that a claimant has failed to furnish
it.
[6]
[41] The Fund does
not dispute that Ms Scott suffered amnesia, and that she had no
memory of how the accident occurred. In
fact, in his written
heads of argument Mr Phillips expressly states that the Fund is not
alleging a deliberate failure on the part
of Ms Scott to provide the
affidavit. The Fund contends instead that the purpose of the
requirement in section 19(f)(i) is
to provide the Fund with the
necessary information to enable it to assess the claim. In
particular, the Fund points to the
fact that in the absence of a
version in Ms Scott’s affidavit, her claim was devoid of an
averment of negligence on the part
of the driver.
[42] It is so that
the purpose of the section 19(f)(i) requirement is to place the Fund
in possession of information for assessment
purposes. In the
present case, Ms Scott’s affidavit did not give the Fund very
much, if any, information on which an
assessment of her claim could
be made. However, on the common cause facts, this was not a
deliberate strategy on her part.
It arose from the fact that
she could not give first hand evidence of what had caused the
accident. If Ms Scott had explained
this in her affidavit, it
may have made the absence of an account of the accident clearer.
Nonetheless, an explanatory paragraph
to this effect still would not
have served the purpose of section 19(f)(i). The Fund would
have remained in the dark on how
the accident occurred.
[43] In my view, and
in light of the established jurisprudence placing a restrictive
meaning on the term “failure”,
I conclude that despite
the fact that Ms Scott’s affidavit does not set out fully the
particulars of the accident, this does
not amount to a refusal or a
failure to do so in terms of section 19(f)(i). It follows that
Ms Scott is not in breach of
that section, and the Fund’s
liability is not excluded on this basis.
[44] For these
reasons, the Funds alternative special plea is dismissed.
ORDER
[45] I make the
following order:
The Defendant’s
special plea is dismissed with costs.
R
KEIGHTLEY
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard: 8 June 2015
Date
of Judgment: 11 June 2015
Counsel
for the Applicants: Adv B K Phillips
Instructed
by: Lindsay Keller Attorneys
Counsel
for Respondent: Adv M van den Baselaar
Instructed
by: Joe Hubbart Attorney
[1]
Para 25
[2]
At 197J-198A
[3]
At 959
[4]
At 959
[5]
At 301B-D
[6]
At 958