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[2016] ZAGPJHC 94
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Ralph v Road Accident Fund (2014/03112) [2016] ZAGPJHC 94 (5 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
2014/03112
DATE:
5 MAY 2016
In
the matter between:
JOHANNESEN
RALPH
.............................................................................................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
............................................................................................
Defendant
Judgment
SIWENDU
NT, AJ:
[1].
This matter concerns a determination of a special plea of
prescription in terms of section 23(3) the
Road Accident Fund Act No
56 of 1996
. For convenience, the
Road Accident Fund Act will
be
referred to as "the Act" throughout the judgment. The
parties had agreed to separate the merits of the claim and postpone
the determination thereof
sine die
in terms of
Rule 33(4).
An application to
amend the plaintiff’s particulars of claim to correct the date,
the time as well as the details of the motor
vehicle was granted to
the plaintiff. In addition, an amended plea in replication to the
defendant’s special plea was sought
and there being no
objection to the same, was granted to the plaintiff.
[2].
The facts, which were largely common cause
between the parties are in brief that, the plaintiff, who was a
passenger in a motor
vehicle was injured on 12 October 2005
following a collision. He was admitted at the Garden City
Hospital
for a week. Subsequent to his discharge from hospital, he
had lodged a claim on 1 November 2005 with the defendant
utilising
the internal claim settlement system established by the
defendant. This system was established by the defendant to assist
claimant's
process their claims without recourse to outside
attorneys. The cut-off date for the lodgement of the plaintiff's
claim would have
been 11 October 2008. The plaintiff's
right to claim compensation would have prescribed on 11 October 2010.
Notwithstanding the timeous lodgement of the claim, summons
commencing action were issued on 31 January 2014 and served
on the defendant on 3 February 2014, approximately five (5)
years after the prescribed period of prescription envisaged
in terms
of
Section 23(3)
of the Act.
[3].
It was also common cause that the plaintiff
was at first assisted by an employee of the defendant known to him as
"Mr Sebenzile"
in lodging his claim. He had
filled in a form handed into court as Exhibit A. An
examination of the form
confirms the date of the lodgement of the
claim.
The section dealing
with the terms and conditions on the form, shows that the final date
for submitting the form is reflected as
the 11 October 2008.
The date of prescription of the claim was left in blank. The
conditions are accompanied by a disclaimer
that:
"It is your
responsibility to notify the RAF 1 month before, should prescription
or lapsing of your claim looming, and seek
legal advice if necessary
at your own cost."
[4].
The plaintiff alleges that the defendant
negligently breached a duty of care owed to him by failing to deal
with the claim in a
diligent manner and by allowing the claim to
prescribe in its hands. In replication to the defendant’s
special plea, the
plaintiff alleges that the defendant should be
estopped from raising the defence of prescription.
[5].
The defendant disputes liability to the
plaintiff on two grounds. The first ground is that the
plaintiff has not discharged
the burden placed on him to prove all of
the facts upon which the duty of care is premised. The
duty of care owed to
the plaintiff was time bound, coincided with the
prescription period and or arouse during 2010. Such a
duty would have
arisen from 2005 when the claim was lodged until 2010
when the claim would have prescribed in the normal course and not
beyond
this period.
[6].
Secondly, it relies on the RAF
Guidelines and submits that to succeed on the ground of estoppel, the
plaintiff must show that the
defendant had and demonstrated an
“
outward manifestation of an
intention not to invoke prescription
”.
In view of a presumption against waiver of rights, the onus is
on the plaintiff to prove an intention to waive
or estoppel.
The plaintiff had
failed to provide the proof required on which to base estoppel, and
at best, the representation made by the defendant
would have been
that the plaintiff’s claim would be settled timeously before it
prescribed on 10 October 2010.
[7].
The plaintiff was the only witness called.
He testified that “Mr Sebenzile” had represented to him
that there was no
need to instruct an outside attorney as the
defendant would assist him pursue and finalise the claim on his
behalf.
[8].
Between the period 2006 and 2007, he
followed up on the progress of his claim through telephone calls and
on occasion(s) had attended
at the defendant’s offices in
person to no avail. He testified that it was only in 2008
that he was attended
to by a certain MacDonald, another employee of
the defendant. It was then that he was advised that
Sebenzile was no
longer in the employ of the defendant. He
testified further that MacDonald advised him that the defendant would
make
an offer to him after he had been examined by the defendant’s
nominated medical doctors. None of this materialised.
According to him, no such offer was made or received by
him.
[9].
During 2010, when no progress was made, he
had consulted with attorneys who were not able to assist him. He was
advised that the
claim had "lapsed". He got discouraged as
a result. His hopes were resurrected in 2012, when he
consulted
with a fresh set of attorneys who took up the matter on his
behalf. Summons was however only issued in January 2014
and served on the 3 February 2014.
[10].
During cross examination, he confirmed that
it was never explained to him that he may need to seek the services
of an attorney.
He had understood and trusted Sebenzile’s
advice, that, the defendant would help him. Between 2010 and 2011, he
had decided he was going to “leave it”. When
pressed further on having “given up” on the claim,
his
response was that after 2008, he had suffered a stroke and gotten
discouraged. He was obliged to accept that the
claim was
“dead” as he did not wish to suffer another stroke. He
conceded undercrosss examination that
he was aware that the claim
would not remain open for an indefinite period but that he had been
waiting for the fund. When
asked to account for the delay
in issuing summons against the fund, his explanation was that he had
to refill and resubmit various
forms. Further testified
that, he had to be examined by six (6) doctors at the instance
of the new attorneys.
He confirmed under cross
examination that he was never advised that the claim would be
rejected or that it was invalid
or that the claim would prescribe.
The plaintiff who is a lay person, answered questions put
to him in a frank manner,
conceded where it was necessary and came
across as a credible witness.
[11].
Mr Mokale on behalf of the plaintiff,
argued that the defendant created a duty about themselves by making a
representation that
they would take care of the plaintiff’s
claim. As a lay person, the plaintiff would believe what
was said. He
argued that I should give the plaintiff the benefit of
the doubt. He submitted further that the defendant should
have
advised the plaintiff that the claim would be rejected or would
prescribe.
[12].
Mr Adam on behalf of the defendant did not
dispute the representation made and accepted the duty of care owed to
the plaintiff.
However, he argued that this legal duty of
care would have ended in 2010, this being the reasonable period when
a reasonable
person would have given up on the claim. The defendant
submitted further that the matter could not be left pending
indefinitely
and a reasonable person ought to have realised that the
matter was not going anywhere.
[13].
The question before me is whether the legal
duty already conceded by the defendant and owed to the plaintiff was
extinguished by
the prescription period provided for in
Section 23
of
the act as claimed. If so whether, the defendant ought to be estopped
from raising prescription as a defence. In
this case, it
is not necessary to delve into the nature of that duty or to
categorize whether it arises in delict or contract.
For the purposes
of this case, once conceded, the question is whether that duty was
extinguished by the prescription period as
claimed. It is
trite in a law that the onus of proving prescription rests on the
party asserting it. Prior to addressing
this, it is material to point
to certain institutional aspects of the defendant which will provide
context for the reasoning in
this judgment.
[14].
The defendant is a creature of statute and
a fund that performs a public function. It was not
disputed that the defendant
had established an internal claims
settlement system to assist affected members of the public. As
a creature of statute,
the defendant has a duty to promote, protect
and fulfil the rights recognised in the constitution. In
the nature of
its functions, which amongst others involves settlement
as well as defending claims against it, it is not difficult to
conclude
that it deals with numerous claims of this nature.
Section
23
of the act limits the time period within which claimants may bring
claims as well as legal proceedings against the defendant. The
defendant is thus insulated from liability and indefinite legal
disputes in this sense.
[15].
The justiciability of
Section 23(1)
raised
by the defendant in its special plea has already been determined by
the Constitutional Court in the decision
Road
Accident Fund and Another v Mdeyide 2011(2) SA 26
.
The principle that the provision of the time bound
prescription in this section does not breach the right to access
to
court in terms of the constitution was enunciated upon. In my view,
the consequences of the decision in
Mdeyide
is that where as in this case, the
defendant represents to claimant that it will assist in settling the
claims without external
legal advice, a greater corresponding duty of
care is created on the defendant to take all reasonable steps to
prevent claims prescribing
in its hands. Such reasonable
steps entail but are not limited to positively responding to the
claimant’s inquiries,
bringing the matter to finality, but also
advising a claimant of the date when a claim would prescribe. The
right conferred
by
section 23
must be counter balanced by efficiency
on the part of the defendant.
[16].
There was no evidence placed before me by
the defendant to refute the version of the plaintiff. It was open to
the defendant to
adduce evidence to demonstrate that the defendant
had taken reasonable steps to warn the plaintiff of the date his
claim would
prescribe. This would have been apparent from
Exhibit A which was left blank. Failing this, the
defendant
could have led evidence not only to refute the plaintiff’s
assertions but to demonstrate that it too steps to contact the
plaintiff or process the claim as had been promised to him. In the
absence of this evidence, the plaintiff’s version that
he had
contacted the defendant on numerous occasions to no avail remains.
In this regard, the defendant breached its legal
duty of care towards
the plaintiff. The plaintiff cannot be said to have
rested on his laurels on available evidence.
From his
testimony, he was instead met with an unresponsive institution which
resulted in his resignation. That
he had given up on his
claim is of no moment in view of this.
[17].
In the absence of a demonstration of the
reasonable steps called upon it above, the defendant’s
submission that its legal
duty of care persisted up to the
prescription date cannot be sustained. Such a conclusion would create
unjust results and would
benefit the defendant from what on the
present facts is an inaction on its part. It would render a finding
that there was a breach
of its legal duty on its part hollow.
[18].
Based on the particular facts of this case,
the defendant’s special plea of prescription cannot succeed
based on the defendant’s
conduct. In the circumstances, it is
not necessary to address the question of estoppel, which in any event
is not a cause of action
on its own.
[19].
It is ordered that:
[19.1]
The Special Plea of prescription is dismissed;
[19.2]
The defendant is ordered to pay the plaintiff’s costs
SIWENDU,
NT
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO. : 03112/2014
HEARD
ON
: 27 JANUARY 2016
FOR
THE PLAINTIFF
: ADV. M. H.
MOKALE
ATTORNEYS
FOR PLAINTIFF
: MOSUNGWA ATTORNEYS.
FOR
THE DEFENDANT
: ADV. L. ADAMS
ATTORNEYS
FOR THE DEFENDANT
: LINDSEY KELLER
ATTORNEYS
DATE
OF JUDGMENT
: 5 MAY 2016