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[2011] ZAGPPHC 224
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Malinga v Road Accident Fund (12896/2001) [2011] ZAGPPHC 224; 2012 (5) SA 120 (GNP) (6 October 2011)
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 12896/2001
DATE:06/10/2011
In
the matter between:
ALPHEUS
MALINGA
.........................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
..................................................
Defendant
JUDGMENT
PHATUDI
J:
[1.]
The plaintiff caused issue of summons against the defendant on the
24th May 2001 claiming damages he sustained as a result
of the motor
vehicle collision that occurred on the 6th of September 1997. The
plaintiff was a passenger in a motor vehicle with
registration number
RBJ 830 T driven by a certain Mpungelwa Khumalo. (Khumalo)
[2.]
The plaintiff alleged that the defendant is obliged to compensate him
in terms of section 17(1) (a) of the RAF Act 56 of 1996,
Firstly:
On the basis that the collision was caused solely by the negligence
of the driver of a motor vehicle driven by Josiah Ndaba
alternatively
Second: The Collision was caused solely by the negligence of Khumalo
further alternatively Third: the collision was
cause by the joint and
simultaneous negligence of the said Ndaba and Khumalo.
[3.]
He, as a result, sustained certain bodily injuries set out in
particulars of claim.
[4.]
The plaintiff succeeded in his application for amendment of its
particulars of claim. Particulars of Claim were amended on
29
November 2010.
[5.]
The amended cause of action reads:
“
On
6 September 1997, at approximately 18h00, the plaintiff was a
passenger in motor vehicle bearing registration number RBJ 830
T
(first insured vehicle driven by Mgungelna Kumalo, ... when an
unidentified motor vehicle whereof the registration number is
unknown
(second insured vehicle) driven by unidentified driver and which was
approaching from the opposite direction proceeded
onto it’s
incorrect site of the road thereby obstructing the line of travel of
the first insured, causing the latter vehicle
of necessary to swerve
towards its left hand side in an endeavour to avoid a collision with
the second insured vehicle .... Thereby
colliding with a motor
vehicle ... driven by Ndaba which was stationary at a stop street in
another road at an intersection.
[6.]
The plaintiff further allege that the defendant is, in terms of
section 17(1) (a) of RAF Act, obliged to compensate the plaintiff
for
damages sustained as a result of the collision.
[7.]
The defendant filed a special plea that the plaintiffs claim as set
out in the amended particulars of claim has prescribed.
[8.]
At the commencement of the hearing, Mr Rontgen places on record that
the parties have agreed on separating the determination
of special
plea from the rest of the claim in terms of rule 33(4) of the uniform
rules of this court. I ordered separation.
[9.]
Mr Ferreira, counsel for the defendant, submits that the plaintiffs
claim as per amended particulars of claim is subject to
the
provisions of the regulation promulgate in terms of section 26 of RAF
Act. He submits that regulation 2(1) stipulate that the
defendant
would not be liable to compensate the plaintiff unless he had
complied with subsections 2(1) (a) to (d). He further submits
that
the regulation 2(4) provides that a claim against an unidentified
driver will be extinguished upon the expiry of a period
of 5 years
from date upon which the claim arose, irrespective of any legal
disability to which the plaintiff concerned may be subject
and
notwithstanding anything to the contrary in any law, unless the
summons to commence legal proceedings has been properly served
on the
defendant before the expiry of the said period. Further thereto, the
defendant pleads that the plaintiffs summons containing
a claim
against an unidentified driver was only served on or about 29
November 2010, which is more than 5 years from date upon
which the
claim arose, namely 6 September 1997.
[10.]
On the other hand the plaintiff’s argument is that the amended
particulars of claim has not prescribed because the plaintiff
seeks
to enforce the same “debt” as claimed in the summons
prior to the amendment.
[11.]
Section 17(1) provides that 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 the motor vehicle
where the
identify of the owner or the driver thereof has been established.
(b)
Subject to any other 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...”
[12.]
Regulation 2 of the regulations published (under (GMR 770) in
Government Gazette 31249 of 21 July 2008, under section 26 of
the RAF
Act in respect of provision for liability of Fund in terms of section
17(1 )(b) provides “2(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)
................
(c)
In the event of a claim having been lodged in terms of paragraph (a)
such claim shall not prescribe before the expiry of a period
of five
(5) years from the date upon which the cause of action arose.
[13.]
Regulation 2(2) provides that:
“
Notwithstanding
anything to the contrary contained 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 within two years from the date upon
which the cause if action arose irrespective of any
legal disability
to which the third party concerned may be subject.”
[14.]
On perusal of the claim form (MMF1) lodged with the defendant, it is
clear that the plaintiff lodged two claims on the 30
March 1999. The
first claim is in terms of section 17(1) (a) and the other in
compliance with section 17(1) (b). Mr Ferreira concedes
to that
effect.
[15.]
In my evaluation of the evidence, it is not in dispute that summons
were issues on the 24th of May 2001 and served on the
defendant on 15
June 2001.
[16.]
It is apparent that plaintiff pursued the claim in terms of section
17(1) (a) of the Act. The cause of action set out in paragraph
5 of
the initial particulars of claim support the claim envisaged in terms
of section 17(1)(a). The plaintiff’s cause of
action is based
on the identified driver or identified owner of the motor vehicle.
The plaintiff’s alternatives thereto are
also on the premise of
provision of section 17(1) (a).
[17.]
In the amended particulars of claim the plaintiff still allege that
the defendant is in terms of section 17(1)(a) obliged
to compensate
him for damages sustained as a result of the collision that occurred
on 6 September 1997.
[18.]
Paragraph 5 of the amended particulars of claim sets out a different
cause of action with an element of unidentified motor
vehicle as the
cause of the accident. The defendant allege that the new cause of
action is tantamount to service of new summons
which, as Mr Ferreira
submits, has prescribed in that 5 years has expired from the date
upon which the cause of action arose.
[19.]
The plaintiff submits that the claim lodged on 30 March 1999 is
substantially the same “debt” as claimed in the
summons
prior to the amendment.
[20.]
Mr Ferreira submits that the Supreme Court of Appeal set the
principle out in Geldenhuys & Joubert v Van Wyk & Another
2005 (2) SA 312
, that a “debt” as considered in the
Prescription Act 68 of 1969
is not applicable on arguments and
allegation relating to prescription referred to in terms of section
17(1) (b) of the Act read
with regulation 2(1) (a) ;(b) and (c)
[21.]
He sets out the said principles in his heads of arguments as follows:
Ad
paragraph 11 - ‘In the case of an unidentified vehicle ...
there is no identifiable wrongdoer to be sued and the injured
party
is remediless”
Ad
paragraph 12- It is for this reason that the distinction the
legislation makes between identified vehicle and unidentified vehicle
cases fundamental.
[22.]
It is further stated in Geldenhuys that:
“
The
reason for the sharp differences in treatment between identified and
unidentified vehicle claims is plain.” The court
quoted Harms
JA from Mbatha case where he pointed out “there are good
reasons for having stricter requirements for unidentified
vehicles
cases.”
[23
] Mr Rontgen refers me to Bezuidenhout v RAF 2003(6) SA 61 SCA. The
court dealt with the provision of regulation 2(1) (d) (which
has
since been repealed) that required physical contact with unidentified
vehicle. His argument has no basis for purposes of this
matter since
the defendant concedes that the plaintiff lodged a claim against
unidentified motor vehicle.
[24.]
The issue to be determined is whether the summons were issued within
the prescribed time or not as required in terms of regulation
2(1
)(c).
[25.]
It is clear from the unamended summons that the plaintiff did not sue
the defendant on the basis of unidentified motor vehicle.
It is
further clear that the plaintiff set out his cause of action in the
particulars of claim relying on the provisions of section
17(1) (a).
[26.]
In my view, the amended particulars of claim introducing the new
cause of action on unidentified motor vehicle is indeed tantamount
to
issuing of “new summons” for purposes of compliance with
section 17(1 )(b) read with regulation 2(1 )(a) and (c).
[27.]
It is further my view that the plaintiff failed to comply with the
said provisions in that he failed to cause issue of summons
in
accordance with the provisions of regulation 2(1 )(c).
[28.]
There are indeed good reasons for having stricter requirements for
claims in unidentified vehicle cases. The legislature enacted
the
section 17(1) (b) read with the regulations 2(1) (a) to (c) to enable
the Road Accident Fund to (i) investigate and to (ii)
find evidence
that will controvert the claimant’s allegation.
[29.]
Based on the above, I find the plaintiff’s claim to have
prescribed.
[30.]
It is trite law that costs follow the event. I find no basis to
apportion the costs as submitted by Mr Rontgen. The defendant
succeeded and is entitled to his costs.
I,
as a result, make the following order:
1.
The plaintiffs claim as against the unidentified driver of an
unidentified motor vehicle has prescribed.
2.
The plaintiffs alternative claim against the unidentified driver of
an unidentified motor vehicle is dismissed with costs.”
AML
PHATUDI J
Date
of hearing: 5th October 2011
Date
of Judgment: 6 October 2011
On
behalf of the Plaintiff:
ADV
K. Rontgen
Attorneys
for Plaintiff
Rontgen
& Rontgen Inc
Tel.:
(012)481 3625
Ref.:
KM Rontgen(snr)/ulandia/R1891
On
behalf of the Defendant ADV J.E Ferreira
Attorneys
for Defendant
Gildenhuys
Lessing Malatji Inc.
Tel.:
(012)428 8600
Ref.:
H Kruger/SVR/00540814