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[2015] ZAGPJHC 147
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Mashatola v Road Accident Fund (2013/41872) [2015] ZAGPJHC 147 (23 July 2015)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA, GAUTENG LOCAL DIVISION
CASE NO: 2013/41872
DATE: 23 JULY 2015
In the matter between:
KGOKARE JOSEPH
MASHATOLA
.......................................................................................
Plaintiff
And
ROAD ACCCIDENT
FUND
...................................................................................................
Defendant
J U D G M E N T
MASHILE J:
[1] The court is required to determine
whether this claim brought against the Defendant in terms of the Road
Accident Fund Act No.
56 of 1996 (hereinafter “the Act”)
was lodged as a claim that falls under Section 17(1)(a) or Section
17(1)(b) of the
aforesaid act. Depending on the court’s
pronouncement, the claim will either be prescribed or not.
[2] Section 17(1)(a) provides:
“(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;
(b) …
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: 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.”
[3] Section 17(1)(b) stipulates that:
“(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: 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.”
[4] The Plaintiff lodged this claim
with the Defendant on 8 November 2013 and furnished the name of the
driver of the vehicle as
Alex without supplying his surname.Having
given his name, he described him as the operator of a white Toyota
Venture taxi under
the control of the Tembisa Taxi Local Association.
Other than as aforesaid, the Plaintiff did not have any further
detailed information
of the driver or the owner or the vehicle
itself.
[5] Responding to the particulars of
claim of the Plaintiff, the Defendant pleaded as follows at Paragraph
5.2.2 of its plea:
“He alighted from the moving
vehicle of the insured driver. He suddenly entered the path of travel
of the insured vehicle
when it was not safe to do so.”
[6] In view of the scanty particulars
furnished by the Plaintiff in respect of the insured driver, the
insured vehicle and the owner
of the vehicle, the Defendant moved an
application to add prescription as a special plea. Fundamentally,
the Defendant’s
prescription defense is that because of the
inadequacy of information supplied in the RAF1 Form concerning the
insured vehicle,
the insured driver or the owner of the vehicle, the
claim of the Plaintiff should be regarded as one falling under
Section 17(1)(b)
of the Act notwithstanding the version that it has
advanced in its main plea. The court considered the application and
allowed
the amendment as there was no prejudice to be suffered by the
Plaintiff.
[7] If the court is with the Defendant
on that argument, the Plaintiff’s claim has prescribed as it
was supposed to have been
lodged with the Defendant within two years
of its occurrence as contemplated in Regulation 2(2) of the
Regulations promulgated
under Section 26 of the Act, which provides:.
“(n)otwithstanding 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 cause of action arose',
'irrespective of any legal disability to which the third party
concerned may be subject”.
[8] The Plaintiff’s failure to
have lodged his claim within the two year period envisaged in the
aforesaid regulation should
have fatal consequences. The plaintiff,
on the other hand, strongly contended that the particulars that he
furnished constitute
substantial compliance and was therefore
sufficient to enable the Defendant to investigate the claim.
Accordingly, the claim was
lodged with the Defendant within the three
year period required by the section.
[9] Moreover, the Defendant failed to
object to the validity of the claim as envisaged in Section 24(5) of
the Act. As I understand
the Plaintiff’s argument, the
Defendant’s failure to object to the validity of the claim
within sixty days from the
date of its lodgment with the Defendant
should estop it from hiding behind inadequacy of information or lack
thereof as what led
to its invocation of prescription as a defense.
[10] The Plaintiff’s further
contention is that the Defendant must have consulted with the insured
driver because it has pleaded
a specific version on how the Plaintiff
became involved in the collision. If the information supplied by the
Plaintiff was as
scanty as the Defendant claims, it would not have
had the version that it advanced in its main plea. In the
circumstances, the
Defendant’s suggestion that it could not
investigate because the information was insufficient is preposterous
because it
was able to put forward a version that undoubtedly
intimates that it consulted with the Plaintiff before serving and
filing its
plea.
[11] In support of his argument of what
constitutes the identity of a driver or owner of a motor vehicle, the
Plaintiff referred
this court to the unreported case of Meso v Road
Accident Fund (11400/12) ZAGPPHC 31 of Gauteng Division: Pretoria
where Khumalo
J stated at paragraph 18 that the identity of the
negligent driver or owner of the negligent vehicle is established if
his name
and residential, postal or work address, are furnished at
the time of lodging the claim, even without the vehicle registration
number, however, if known they should be furnished together with the
identity number. The address can also be a telephone number,
or a
description of where the person may be found.
[12] Paragraph 5.2.2 of the Defendant’s
plea presupposes that the Defendant has had an opportunity to canvass
the merits of
its defense with the insured driver. It does not and
it cannot make sense for the Defendant to subsequently raise a
special plea
of prescription and claim that the information provided
was so insufficient that it could not investigate the claim. This
must
be so because it is obvious that with the little information
that the Defendant had, it managed to track down the insured driver.
The rationale of limiting the period within which claims lodged under
Regulation 2(2) of the Act was explained in Mbatha v Multilateral
Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA) in the following
terms:
“…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…”
[13] The possibility of fraud in this
instance has been eliminated. The Defendant has found the insured
driver and has apparently
investigated the claim because it has its
own version on the merits. Against that backdrop, it is hard to
appreciate the Defendant’s
logic in raising the special plea.
In any event it is my view that such an assertion is a little too
late as it could have been
raised and dealt with prior to the expiry
of the sixty day period referred to in Section 24(5) of the Act.
[14] My comments relating to Section
24(5) must not be construed to mean that the Defendant would under
any other circumstances
be precluded from raising a defense after
failing to raise objection in terms of Section 24(5). The difference
between the instant
case and that postulated above is that the
Defendant has already put forward a version and such version
contradicts its special
plea insofar as the Defendant alleges not to
have had sufficient particulars relating to the insured driver,
insured vehicle and
the owner of the vehicle.
[15] In the circumstances the special
plea cannot succeed and I make the following order:
1. The special plea is dismissed with
costs.
B. A. MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff: AdvMetu
Instructed by: SehoanaMotsepe
Attorneys
Counsel for the Defendant: AdvLouw
Instructed by: DialeMogashoa
Attorneys
Trial proceedings took place on 14
May 2015
Date of delivery of Judgment: 23
July 201`5