About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 272
|
|
Haywood v Road Accident Fund (37961/2012) [2016] ZAGPJHC 272 (9 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 37961/2012
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
DATE:
9 SEPTEMBER 2016
In
the matter between
CHESLIN
HAYWOOD
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
Prescription
- Personal injury - Claim for compensation against the RAF in terms
of
s 17(1)(b)
of the
Road Accident Fund Act 56 of 1996
lodged more
than 2 years after date of collision - requirements of reg 2(2)
of the regulations promulgated under
s 26
of the Act peremptory - RAF
repudiated liability – certain details concerning identity of
driver subsequently established
and pleaded in summons –
summons issued and served on the RAF more than 5 years after date of
collision - plaintiff thereafter
filed amended RAF claim form
containing particulars of the identity of the driver of the insured
vehicle - RAF deprived of all
the advantages provided for in the Act
and regulations - special pleas of prescription upheld - claim
dismissed with costs.
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
In the main action between the parties the plaintiff claims
compensation damages from the defendant (RAF) arising from a
collision
between the plaintiff who was a pedestrian and a motor
vehicle on 25 August 2007. At the time of lodging the claim with the
RAF
the plaintiff was not in possession of any particulars as to the
identity of either the motor vehicle involved in the collision
or the
driver thereof. The plaintiff instituted the main action and served
the summons on the defendant on 8 October 2012. The
RAF defends the
action and delivered two special pleas of prescription. The action
was enrolled for hearing but the parties agreed
that the special plea
be adjudicated first, in terms of a stated case which now serves
before me.
[2] The special plea
raises the issue whether the plaintiff’s claim has become
prescribed.
The
lodging of the claim and issue and service of summons
[3] The plaintiff’s
claim was lodged with the RAF on 24 August 2010. The statutory claim
form (Form 1), in regard to ‘particulars
of motor vehicle from
the driving of which the claim arises’ reflects the words ‘TO
FOLLOW’ having been inserted
in manuscript, between two cross
lines. The RAF considered the claim as a ‘hit and run claim’
(thus a claim for compensation
in terms of s 17(1)(b) of the Road
Accident Fund Act 56 of 1996 (the Act)) and on 21 January 2005
repudiated liability asserting
that the claim was lodged more than 2
years after the date of the collision, as required in terms of reg
2(2) of the regulations
promulgated under s 26 of the Act.
[4] On 4 February 2014
the plaintiff’s attorneys in a letter to the RAF gave notice of
an amendment to the Form 1 in furnishing
the names, identity number
and address of the driver of the motor vehicle involved in the
collision in respect of which an amended
Form 1 was attached.
[5] On 8 October 2012
summons was issued and served on the RAF. In regard to the collision
it is stated in paragraph 2 of the particulars
of claim, that the
collision had occurred between ‘a vehicle of unknown
registration… there and then being driven
by a Mr Xavier of
Eldorado Park…and the plaintiff’.’ On 20 November
2013 the plaintiff gave notice of intention
to amend the particulars
of claim in
inter alia
the adding of the identity number and
address of the insured driver in paragraph 2 thereof. Merely for the
sake of completeness
I need to add that the RAF filed a notice of
objection to the proposed amendment but having heard argument on this
aspect, I allowed
the amendment.
[6]
On 4 February 2014 the plaintiff’s attorneys gave notice of and
filed an amended Form 1 in which the particulars in respect
of the
insured driver I have referred to were furnished. In regard to the
identity of the vehicle involved in the collision the
form still
reflects the word in manuscript ‘TO FOLLOW’.
The
opposing contentions of the parties
[7] The plaintiff, with
reliance on the judgment of the Supreme Court of Appeal in
Pithey
v Road Accident Fund
2014 (4) SA 112
(SCA), and in particular
what Petse JA, writing for the court, remarked concerning the primary
purpose and objectives of the Act,
as follows (para [18]:
‘
It has long
been recognised in judgments of this and other courts that the Act
and its predecessors represent social legislation
aimed at the widest
possible protection and compensation against loss and damages for the
negligent driving of a motor vehicle‘.
Accordingly, in
interpreting the provisions of the Act, courts are enjoined to bear
this factor uppermost in their minds and to
give effect to the
laudable objectives of the Act. But, as the Full Court correctly
pointed out, the Fund which relies entirely
on the fiscus for its
funding should be protected against illegitimate and fraudulent
claims.’
contended for a
favourable interpretation of the Act and its regulations, with
special allowance for the fact that the plaintiff
was a minor at the
time the collision.
[8] The defendant on the
other hand submitted that the plaintiff’s claim, on any
interpretation of the Act, has clearly prescribed.
Discussion
[9]
The first lodgement of the claim was outside the two year period. It
was considered as a s 17(1)(b) claim for compensation in
respect of
which the two year period for lodgement applied, notwithstanding the
fact that the plaintiff was a minor. The requirements
of reg 2(3) are
peremptory (
Geldenhuys & Joubert v Van Wyk and Another; Van
Wyk v Geldenhuys & Joubert and Another
2005 (2) SA 512
(SCA)). Neither counsel challenged the facts
underscoring, or, the validity of the RAF’s repudiation of the
claim. I however, gave some consideration as to whether the
indication in Form 1 that details concerning the identity of the
driver
of the vehicle would follow, did not perhaps disclose a claim
for compensation under s 17(1)(a). In the plaintiff’s statutory
affidavit deposed to on 17 March 2008, he referred to a collision
having occurred ‘when a Ford Bakkie of an (sic) unknown
registration letters and numbers driven by an unknown driver collided
with me from behind’. This aspect was not addressed
by counsel.
A finding that it was indeed a claim in terms of s 17(1)(a) would in
any event not assist the plaintiff, as I will
presently deal with. I
accordingly do not consider it necessary to consider this aspect any
further.
[10]
On a conspectus of the procedures followed by the plaintiff, the
following important considerations come to the fore:
[11]
The first inkling concerning any particularity of the identity of the
driver the RAF could have had was upon service of the
summons. The
particularity there stated, in any event, was clearly insufficient to
enable the RAF to enquire into the claim: merely
the name and
residential suburb of the driver were furnished (
Constantia
Insurance Co Ltd v Nohamba
1986 (3) SA 27
(A) 39G-H). It was only
in the plaintiff’s notice of intention to amend, served almost
six-and-a-half years after the collision,
that sufficient
particularity concerning the driver was furnished.
[12]
The summons was issued and served more than 5 years after the
collision. The RAF accordingly was unable in any manner, to
investigate and assess its liability for more than 5 years after the
collision, an advantage provided for in the Act and regulations
that
cannot be ignored (
Multilateral Motor Vehicle Accidents Fund v
Radebe
[1995] ZASCA 80
;
1996 (2) SA 145
(A) 152E-I).
[13]
The plaintiff’s minority at the time of the collision (s
23(2)(a) of the Act) is of negligible consequence in considering
the
delays that had occurred: he attained the age of majority less than 2
months after the collision.
[14]
The RAF, in this instance, was deprived of all the advantages
provided for in the Act and regulations and, as was stated in
Radebe,
‘
It is true
that the object of the Act is to give the widest possible protection
to third parties. On the other hand the benefit
which the claim form
is designed to give the fund must be borne in mind and given effect
to. The information contained in the claim
form allows for an
assessment of its liability, including the possible early
investigation of the case. In addition, it also promotes
the saving
of the costs of litigation
[1]
…These
various advantages are important and should not be whittled away. The
resources, both in respect of money and manpower,
of agents and
particularly of the fund are obviously not unlimited. They are not to
be expected to investigate claims which are
inadequately advanced.’
I
am accordingly driven to conclude that the plaintiff’s claim
has prescribed.
Order
[15] In the result I make
the following order:
1.
The
defendant’s special pleas of prescription are upheld.
2.
The
plaintiff’s claim is dismissed.
3.
The
plaintiff is to pay the costs of the action.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
ADV DJ COMBRINCK
PLAINTIFF’S
ATTORNEYS
AF VAN WYK ATTORNEYS
COUNSEL
FOR DEFENDANT
ADV B JOSEPH
DEFENDANT’S
ATTORNEYS
MAYAT NURICK LANGA INC
DATE
OF HEARING
26 AUGUST 2016
DATE
OF JUDGMENT
9 SEPTEMBER 2016
[1]
In 2015 the RAF spent more than R5.6bn on legal
fees –
Legalbrief Today
,
8 September 2016.