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[2010] ZAGPPHC 591
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Matsepe N.O. v Road Accident Fund (24988/2002) [2010] ZAGPPHC 591 (5 March 2010)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOITH AFRICA)
Case No: 24988/2002
Date: 5 March 2010
MALESHOANE AGENS
MATSEPE N.O.
…...................................................................................
Plaintiff
vs
ROAD
ACCIDENT
FUND
.............................................................................................................
Respondent
JUDGEMENT
SAPIRE.
A J:
This was an argument
on a special plea filed by the Defendant to a claim made by the
Plaintiff under the provisions of the
Road Accident Fund, Act No 56
of 1996
. The Plaintiff is represented by a Curator ad Litem, one K M
Rontgen an attorney with right of appearance, who is duly appointed
thereto.
In the Particulars
of Claim it is alleged that the Plaintiff was a pedestrian on his way
home from work when he was struck by an
unidentified motor vehicle
driven by a driver whose identity cannot be ascertained. It is
further alleged that the accident was
due to the negligence of the
driver of the vehicle.
As a result of the
collision the Plaintiff was seriously injured, sustaining a fracture
of the right mid shaft femur as well as
damage to the spinal cord and
gross brain damage. It is not necessary at this stage to refer either
more particularly to the extent
of the injuries and the effects
thereof nor to the extent of the damages giving rise to the claim.
What is important is that the
Curator claims that because of the
brain injury the Plaintiff is largely incapacitated and was not able
to give proper attention
to his affairs more particularly the
timeously lodging of a claim under the Act This contention was not
placed in issue and no
evidence was placed before the court to
establish the causal connection between plaintiffs injury and the
failure to lodge the
claim timeously.
The Curator was
appointed after the time prescribed for the filing of the claim in
terms of the Act.
The Defendant has
raised a Special Plea in which it is alleged that as the claim was
lodged against the Defendant on the 27
th
of November 2001,
well past the two year statutory period laid down in
Regulation 2(3)
of the Regulations promulgated in terms of the Act, for lodgement of
a claim where the identity of the owner and/or driver is unknown.
The Special Plea
recites the wording of
Regulation 2(3)
which provides that a claim
for compensation referred to in
Section 17(l)(b)
of the Act shall be
sent or delivered to the Fund within two years from the date upon
which the claim arose irrespective of any
legal disability to which
the Third Party concerned may be subject and not withstanding
anything to the contrary in any law.
The Special Plea
concludes with the proposition that the Plaintiff s action against
the Defendant became prescribed on the 30
th
of September
1999 and is accordingly unenforceable. The Defendant prays that the
Plaintiff s action be dismissed with costs.
The
Curator ad Litem himself appeared to argue that the Regulation was
invalid having regard to the provisions of the Constitution,
in that
it deprived the Plaintiff of a right afforded him by the Act itself.
Particular attention was given to the words referring
to
“...
irrespective
of any legal disability to which the Third Party may he subject ”
Counsel
for the Defendant argued to the contrary and cited two decisions of
the Supreme Court of Appeal which appear to decide the
point raised
by the Plaintiff adversely to him. The first of these cases is
Geldenhuys
& Joubert
v
Van Wyk and
Another, 2005(2) SA 512.
In
this case it was held that the Regulation was valid and its terms
were not unfair to those suffering an incapacity which could
interfere with them lodging a claim timeously.
The
second case referred to was
Mahambo
v Road Accident Fund, 2005(6) SA 574(1')
in
which the Court decided that the Regulation was not unfairly
discriminatory against minors. The same reasoning must apply to
those
incapacitated as in the present case.
It was pointed out
that Section 17( 1 )(b) of the Act created a statutory right which
did not exist in Common Law. Regulation 2(3)
did not therefore
introduce an invasion of any of the minor’s constitutional
rights. This reasoning must apply in the present
case to a person
incapacitated by brain injury. I am bound to follow the decisions of
the Court of Appeal with which I am in respectful
agreement.
The Special Plea is
upheld and Plaintiff s claim is dismissed with costs.
SAPIRE, AJ
ATTORNEYS FOR
PLAINTIFF:
RONTGEN&
RONTGEN
HB FORUM, 13
STAMVRUG STREET
VAL DE GRACE
p/a DOCEX, SAAMBOU
BUILDING
GROUND FLOOR, SHOP
NO 2
ANDRIES STREET
PRETORIA
TEL: 012-481 3624
REF:
KM
RONTGEN (SNR)/ulandia/R3944
ATTORNEYS FOR
DEFENDANT:
T M CHAUKE
ATTORNEYS
3
rd
FLOOR, EASTWING
SAMMY MARKS SQUARE
PRETORIA
REF:
TMC/mlc/RAF/Ml
12
CURATOR AD LITEM
(In Person) FOR
PLAINTIFF: Mr K Rontgen
COUNSEL FOR
DEFENDANT: Adv P Kemp