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[2021] ZAGPJHC 367
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Khumalo v Road Accident Fund (2016/30550) [2021] ZAGPJHC 367 (3 June 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2016/30550
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
3 JUNE 2021
In the matter between:
KHUMALO,
SEBENZILE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
COWEN AJ:
Introduction
[1]
The plaintiff, Sebenzile Khumalo, is
claiming damages from the defendant, the Road Accident Fund (“RAF”),
arising from
injuries caused during a motor vehicle accident which
occurred on 2 May 2012. The plaintiff was a passenger in a taxi
(registration
number [....] GP) driven by a Mr. Sithole, who is
alleged to have lost control of the taxi which overturned. The
plaintiff allegedly
suffered severe injuries.
[2]
The action was certified as trial-ready in
October 2020 and projected to run for two to three days in
circumstances where there
were ongoing disputes about prescription,
liability and quantum. The action came before me on the trial roll on
2 June 2021. Ms.
Mabena appeared for the plaintiff. The RAF did not
have legal representation. However, the claims handlers, Ms Mathebula
and her
senior Ms. Sibiya were present, together with a Mr. Ndlovu,
an attorney currently employed by the RAF to assist with claims.
[3]
As is well known, at the present time, the
RAF routinely either does not appear at all in trials before this
Court or its claim
handlers appear without legal representation in
circumstances where the RAF cancelled contracts with its previous
panel of attorneys
during 2020. Mr. Ndlovu happens to be an attorney
with rights of appearance in this Court but he did not appear before
me in that
capacity and I approached the matter on the basis that the
RAF was not legally represented. Mr. Ndlovu, however, is the person
who was mandated by the RAF to attend a recent pre-trial conference
with the plaintiff held under court order on 20 May 2021 and
who
signed the pre-trial minute.
[4]
At the commencement of the trial, I stood
the matter down for a short period to afford the parties an
opportunity to explore settlement.
As matters transpired, there was
only one stumbling issue which stood in the way, being an ongoing
“dispute” about
whether the plaintiff’s claim had
prescribed. I was informed that should I find in favour of the
plaintiff on the issue of
prescription, there would be no need to
proceed with the remainder of the trial as the RAF indicated that,
subject to prescription,
it now concedes liability and a reasonable
settlement offer would follow. In those circumstances the trial
proceeded on the issue
of prescription. There was however no
separation of issues in terms of Rule 34 (4) of the Uniform Rules of
Court. Rather, in order
to facilitate the efficient conduct of the
matter thereafter in the interests of both parties, I indicated that
I would decide
the issue of prescription overnight as a preliminary
issue and should I find in the plaintiff’s favour, the trial
could then
proceed.
[5]
In respect of prescription, two issues
arise for decision:
(a)
Whether the RAF has duly raised the issue
of prescription in the pleadings;
(b)
If
so, whether the plaintiff’s claim prescribed in terms of
Regulation 2(1)(b) of the Regulations made under section 26 of
the
RAF Act (“the Regulations”)
[1]
.
The legislation and
regulations
[6]
Section
17 of the Road Accident Fund Act 56 of 1996 (“the Act”)
makes the RAF liable to pay compensation claims arising
from the
driving of a motor vehicle where either the identity of the owner or
driver has been established (section 17(1)(a)) or
where it has not
(section 17(1)(b)). However, where it has not, the RAF’s
liability is subject to regulation made under section
26 which
imposes a two-year prescription period. This is due to the heightened
possibility of fraud and evidential difficulties
the RAF faces in
cases where there is an unidentified owner or driver.
[2]
[7]
Regulation 2 is entitled “Further
provision for liability of Fund in terms of section 17(1)(b)”.
It provides as follows
in relevant part:
2. Further provision
for liability of Fund in terms of section 17 (1) (b)
(1) (
a
) 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.
(
b
)
A right to claim compensation from the Fund under section
17 (1) (
b
) of
the Act in respect of loss or damage arising from the driving of a
motor vehicle in the case where the identity of neither
the owner nor
the driver thereof has been established, shall become prescribed upon
the expiry of a period of two years from the
date upon which the
cause of action arose, unless a claim has been lodged in terms
of
paragraph
(
a
)
.
…
Has
the RAF raised the issue of prescription in terms of Regulation
2(1)(b) on the pleadings?
[8]
The
plaintiff’s summons was apparently issued on 5 September 2016.
This is within five years of the cause of action arising
as
contemplated by section 23(3) of the Act.
[3]
The plaintiff had lodged its claim in July 2014. The RAF’s plea
is dated 15 September 2016. In its plea, the RAF did not
plead
prescription in any form. Rather, on 31 October 2018, it sought to
introduce a special plea raising prescription under Regulation
2(1)(b). In response, and within ten days, the plaintiff filed a
notice of objection to the amendment. The RAF apparently did not
thereafter apply for leave to amend its pleadings and in turn the
plaintiff filed no pleading in response.
[9]
Under Rule 28(1) of the Uniform Rules of
Court, a party desiring to amend any pleading “shall notify all
other parties of
his intention to amend and shall furnish particulars
of the amendment.” Rule 28(2) provides that the notice shall
state that
unless written objection to the proposed amendment is
delivered within 10 days of delivery of the notice, the amendment
will be
effected. If an objection is delivered within 10 days, the
party wishing to amend may, within 10 days, lodge an application for
leave to amend (Rule 28(4)). If there is no objection, then the
parties who received notice of the proposed amendment are deemed
to
have consented thereto and the party who gave notice may, within 10
days effect the amendment by delivering each relevant page
in its
amended form (Rule 28(5) and (7)).
[10]
On the face of it, the plea was thus at no
stage amended to incorporate the special plea. In turn, prescription
under Regulation
2(b) has at no stage been pleaded and is not a live
issue before this Court. If this is correct, as it appears to be,
then the
issue of prescription is not a live one before the Court and
the plaintiff is entitled to persist with its claim. In this regard,
it is not without significance that the recent pre-trial minute
records the “issue” of prescription to be not in dispute
and “n/a”. However, Mr Ndlovu informed the Court that at
the time he did not have access to the relevant file information
and
I am approaching this matter on the basis that the RAF is
unrepresented.
[11]
There
are two considerations that could be raised against a
prima
facie
conclusion that the issue of prescription is not a live one before
the Court. The first is that the plaintiff has conducted pre-trial
preparations on the assumption that it is a live issue at least until
the recent pre-trial conference. Thus, when this Court was
approached
to certify the matter as trial-ready in October 2020, prescription
was identified as a live issue in the plaintiffs’
practice
note.
[4]
The second is that on
31 October 2018, when the RAF filed its notice of intention to amend
its claim, it also filed its amended
plea including the special plea.
This is, on the face of it, irregular. This Court is neither apprised
of the circumstances in
which this occurred nor how the plaintiff
responded. It is possible given the timing that it was only intended
as a matter of convenience
to assist the plaintiff to consider any
objection – this is not infrequently done in practice but when
it is done, this is
via draft and without delivery to the Court. To
the extent that it was an irregular step, however, the plaintiff had
at its disposal
the remedy of Rule 30 governing irregular proceedings
but did not invoke it. These issues and the status of the purported
amendment
could have been the subject of discussion and agreement
between the specific attorneys representing the parties at the time,
neither
of whom are currently involved and the Court is not apprised
of detailed information. In these circumstances, I am willing to
assume
in favour of the RAF (but without deciding) that the RAF may
competently defend the claim on the basis of prescription in terms
of
Regulation 2(1)(b) and I will refer to this as “the special
plea”. In turn I will assume that the dispute is defined
as
foreshadowed by the purportedly amended plea and the notice of
objection.
Has the claim
prescribed in terms of Regulation 2(1)(b)?
[12]
In my view, on the evidence before me the
special plea cannot succeed and the plaintiffs’ claim has not
prescribed in terms
of Regulation 2(1)(b). It is common cause that
the plaintiff’s claim was lodged with the RAF on 28 July 2014,
which is in
excess of two years of the cause of action arising on 2
May 2012. Accordingly, if the claim is a claim in terms of section
17(1)(b),
then it would have prescribed in terms of Regulation
2(1)(b). The plaintiff submits, however, that the claim is a claim in
terms
of section 17(1)(a), not section 17(1)(b), because it is a
claim in which the identity of the driver has been established. I
agree.
[13]
The Accident Report Form is dated on the
same date as the accident, being 2 May 2012. It includes the
particulars of the driver,
being a Mr. Sithole and his identity
number and the car registration details. There is no dispute about
whether the Accident Report
Form what it purports to be and it can be
and is received as evidence in these proceedings. In this case, it is
clear from the
Accident Report that the identity of the driver was in
fact established. Moreover, in the plaintiffs’ affidavit
prepared
in terms of section 19(f) of the Act, the plaintiff
indicated that the registration details would be provided: she did
not state
that the identity or registration details had not been
established.
[14]
Mr.
Ndlovu explained to the Court that the RAF takes the view that the
failure specifically to include the details of the driver
in the RAF1
form renders the claim prescribed. The only issue that may be
competently before me is whether the claim is prescribed
in terms of
Regulation 2(1)(b). In my view, a failure specifically to include the
details of a driver in the RAF1 form does not
have that effect. This
may have implications for whether a claim was duly lodged in terms of
section 24 of the Act, which in turn
may raise a question whether the
extended five-year prescription period in section 23(3) is available
to a plaintiff but that issue
has at no stage been raised, even in
the notice of amendment or the special plea purportedly filed and it
would be unfair in the
circumstances to adjudicate this matter on
that basis. Moreover, difficult legal issues arise. In this regard,
it is important
to note that whatever the legal merits of such
contentions, they may be difficult to sustain in the absence of any
objection to
the claim in terms of section 24(5) of the Act.
[5]
My attention has not been drawn to anything which suggests that any
such objection was forthcoming.
[15]
Finally, Mr. Ndlovu explained that it
appears on the information before the Court that the Accident Form,
and in turn the driver’s
details, were only supplied to the RAF
when summons was instituted in 2016. However, even if that is so
(which I do not decide)
it was not explained how, if in fact the
driver’s identity had been established, this would then convert
the claim to one
in terms of section 17(1)(b). In my view, it does
not.
[16]
I conclude that the claim is a claim in
terms of section 17(1)(a) and that it did not prescribe in terms of
section 17(1)(b). Accordingly,
the plaintiff can pursue her claim
against the RAF. I delivered the order reflected in paragraph a.
below at 10am on 3 June 2021.
The parties thereafter settled the
matter of quantum and under the current practice directives, the
settlement is now to be referred
to the settlement court.
[17]
I make the following orders (paragraphs b.
and c. by agreement):
a.
The special plea of prescription in terms
of
Regulation 2(1)(b)
of the
Road Accident Fund Act is
dismissed.
b.
The RAF is liable to compensate the
plaintiff for damages (at 100%) arising from the accident which
occurred on 2 May 2012 at or
near Mkhulandoda, Weenen involving the
motor vehicle with registration number [....] GP driven by a Mr.
Sithole.
c.
The matters of quantum in respect of future
medical expenses and past and future loss of earnings, and costs,
having become settled,
the matter is removed from the trial roll and
referred to the settlement roll. It is recorded that the parties
stated that the
settlement offer, which is authorized and accepted,
has at this stage been made verbally and entails an undertaking in
terms of
section 17(4)(a) of the RAF Act (in respect of future
medical expenses) and the amount of R383 870.35 (in respect of
past
and future loss of earnings).
S. J. COWEN
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
2 June 2021
Judgment:
3 June 2021
Plaintiff’s
Counsel:
Adv. N. Mabena
Instructed
by:
N T Mdlalose Incorporated
Defendant:
No representation
[1]
The
Regulations I refer to are those published in Government Gazette No
31249 as the Road Accident Fund Regulations under GNR
of 21 July
2008 as amended by Notice R347 of Government Gazette 36452 of 15 May
2013.
[2]
Geldenhuys
& Joubert v Van Wyk and another; Van Wyk v Geldenhuys &
Joubert and another
[2005]
2 All SA 460 (SCA).
[3]
Section
23(1) provides for a three-year prescription period for section 17
claims. However section 23(3) provides:
‘
Notwithstanding
subsection
(1)
,
no claim which has been lodged in terms of section
17 (4) (
a
) or 24 shall
prescribe before the expiry of a period of five years from the date
on which the cause of action
arose.’
[4]
Notably,
however, Adams J did not pertinently identify prescription as an
issue for trial although in view of the plaintiffs’
practice
note, the RAF may reasonably regard it as embraced in the reference
to liability and merits.
[5]
S
ection
24
(5) provides:
If the Fund or the agent does not, within 60 days from the date on
which a claim was sent by registered post
or delivered by hand to
the Fund or such agent as contemplated in
subsection
(1)
,
object to the validity thereof, the claim shall be deemed to be
valid in law in all respects.