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[2023] ZAFSHC 457
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Majake v Road Accident Fund (4722/2019) [2023] ZAFSHC 457 (20 November 2023)

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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no
. 4722/2019
In
the matter between:
PHEELO
JONAS MAJAKE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY
:
VAN RHYN J
HEARD
ON
:
28 AUGUST 2023
DELIVERED:
20 NOVEMBER 2023
[1]
This matter concerns the determination of two special pleas raised by
the Road Accident Fund,
the defendant, against the plaintiff’s
particulars of claim.  The plaintiff, an adult male born on 16
September 1982,
instituted action against the defendant
in terms of the provisions of the Road Accident Fund Act
[1]
(the “RAF Act”) for
the
payment of damages arising from a motor vehicle accident which
occurred on 8 June 2012.
[2]
The plaintiff averred that the accident
was caused as a result of the sole negligence of the driver of
a
Toyota Quantum minibus with registration letters and number DYD[…].
As
a result of
the accident he sustained an open fracture of the left distal leg
(tibia/fibula fracture) and a soft tissue injury to
the right eye
which left him with impaired range of motion in his left ankle.
The plaintiff was a pedestrian when the incident
occurred.
[3]
The facts of the matter relevant to the adjudication of the two
special pleas are common cause
and are as follows: The plaintiff’s
claim arose on 8 June 2012, being the date of the accident. The
plaintiff lodged his
claim with the defendant on 4 June 2015. Prior
to issuing summons out of this court, the plaintiff issued summons
under case number
693/2017, through his erstwhile attorneys, out of
the Bloemfontein Regional Court on 2 June 2017.
[4]
The plaintiff thereafter, on 11 July 2019, cancelled the mandate of
his erstwhile attorneys and
appointed Tshangana & Associates Inc.
as his attorneys of record. A second summons was issued on the 10
th
of October 2019 out of this court and served upon the defendant on 17
October 2019. The second summons bears the same cause of
action and
the plaintiff has not withdrawn the summons issued out of the
Bloemfontein Regional court.
[5]
In its special plea the defendant pleads that the summons issued and
served upon the defendant
on 17 October 2019 occurred after the
expiry of five (5) year period from the date on which the cause of
action arose with the
result that the plaintiff’s claim has
prescribed. In respect of the second special plea the defendant prays
that the plaintiff’s
claim be dismissed on the basis that the
summons issued out of the regional court by the plaintiff’s
erstwhile attorneys
has not been withdraw whereas a second summons
had been issued during October 2019 out of this court. The defendant
pleads
lis alibi pendens
in that the same cause of action is
pending in another court.
[6]
The plaintiff in his replication denies that his claim has prescribed
and admits the second special
plea of
lis
alibi pendens.
It is not disputed that the second summons was served on the
defendant more than seven (7) years after the cause of action arose.

The argument raised on behalf of the plaintiff is that the claim was
submitted with the defendant within the prescribed time period
and
summons was issued and served out of the Bloemfontein Regional Court
and served upon the defendant on 2 June 2017, being within
the five
(5) year prescribed time period.
[2]
Prescription of the plaintiff’s claim was thus effectively
interrupted by the serving of the summons. The summons in the

regional court has not been withdrawn on the basis that in the event
of the high court action not proceeding, the plaintiff will
be able
to proceed with his claim, albeit for a lesser amount, in the
regional court.
[7]
According to the plaintiff, the reasons for the issuing of the second
summons in this court are
two-fold:
7.1
The quantum of the plaintiff’s claim falls outside the monetary
jurisdiction of the Bloemfontein
Regional Court which court has
jurisdiction in civil matters between the amount of R200 000.00
up to and including R400 000.00.
7.2
There is no procedure and/or statutory provision authorising the
transfer of a matter from the
Bloemfontein Regional Court to the Free
State Division of the High Court.
[8]
Mr Thompson, counsel appearing on behalf of the plaintiff, argued
that premised on the above,
the plaintiff’s claim was
instituted in the wrong forum by his erstwhile attorneys.  With
reliance on
Food
and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry
(Pty) Ltd
[3]
that
prescription is interrupted by proceedings in the wrong forum, it is
contended that prescription of the plaintiff’s claim
has been
interrupted by service of the first summons issued out of the
regional court and therefore the claim instituted in this
court could
not have become prescribed.
[9]
Ms Banda, appearing on behalf of the
defendant, argued that the provisions of section 23 of the RAF
Act
regulates prescription of claims against the defendant. The effect of
section 23(1) of the RAF Act is that where the cause
of action arose
from an accident where the driver or owner of the vehicle responsible
for the accident has been identified, lodgement
of the claim with the
defendant has to take place within the period of three (3) years
after the cause of action arose. The plaintiff
lodged his claim
against the defendant timeously.
[10]
Section 23(3) extends the prescription period by an additional two
years within which summons has to be issued
against the defendant (if
the claim is not settled after the lodgement with the defendant). The
summons in this court was issued
after the period of five (5) years
from the date on which the cause of action arose. The RAF Act does
not make provision for the
interruption of prescription. With
reference to the judgment of the Constitutional Court in the matter
of
Road
Accident Fund v Mdeyide
[4]
,
Ms Banda argued that the Prescription Act
[5]
(the “Prescription Act”) regulates the prescription of
claims in general and the RAF Act is tailored for the specific
area
it deals with, namely claims for compensation against the Road
Accident Fund for those injured in road accidents. The Legislature

enacted the RAF Act and included provisions dealing with prescription
in the RAF Act for the very reason that the Prescription
Act was not
regarded as appropriate for these particular claims.
[11]
Section 23 of the RAF Act provides that:
“
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections
(2) and (3), the right to claim compensation
under section 17 from the Fund or an agent in respect of loss or
damage arising from
the driving of a motor vehicle in the case where
the identity of either the driver or the owner thereof has been
established, shall
become prescribed upon the expiry of a period of
three years from the date upon which the cause of action arose.
(2)
Prescription of a claim for compensation referred to in subsection
(1) shall not run
against–
(a)
a minor;
(b)
any person detained as a patient in terms of any mental health
legislation; or
(c)
a person under curatorship.
[12]
Section 23(3) provides as follows:
“
(3)
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.”
[13]
In
Kruger
v Minister of Health and Others
[6]
it was held that the institution of proceedings in a court with or
without jurisdiction does interrupt prescription.
[7]
The
Kruger
v Minister of Health and Others
matter did not, as can be inferred from the citation, deal with a
claim against the Road Accident Fund. It was a so called “medical

negligence” claim instituted in haste to obviate prescription,
but in the wrong forum, being the North Gauteng High Court.
The
matter was duly transferred to the Free State Division of the High
Court in terms of the provisions of section 27(1)(a) of
the Superior
Court Act.
[8]
[14]
The plaintiff in the matter at hand, furthermore relied upon the
dicta in
Food
and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry
(Pty) Ltd
[9]
where
the majority judgment appears to accept as a general proposition that
prescription is interrupted by proceedings in the wrong
forum. This
matter however does not deal with the provisions of the RAF Act, but
with litigation of unfair dismissal claims under
the Labour Relations
Act
[10]
and the question
whether the Prescription Act applies to such claims.
[15]
I am of the view that the facts relevant to the
Kruger
and
Food and Allied workers Union
cases, relied upon by the
plaintiff, are distinguishable and do not provide an answer for the
issue at hand, namely whether the
issue of summons in the Regional
Court, Bloemfontein interrupted prescription of the plaintiff’s
claim. The plaintiff’s
claim was instituted in terms of the
provisions of the RAF Act which specifically provides that summons
has to be issued and served
within 5 years prescribed by section
23(3) of the RAF Act.
[16]
Unlike the Prescription Act, the RAF Act does not have provisions
prescribing for interruption of prescription
save for claims, in
respect of minors, persons with mental disability and persons under
curatorship which are not affected by prescription
as provided for in
section 23(2) of the RAF Act. The Constitutional Court has time after
time emphasised the essential role time
limits play in bringing
certainty and stability to social and legal affairs and maintaining
the quality of adjudication.
[11]
Van der Westhuizen J explained the purpose of prescription periods as
follows in
Mdeyide
:
“
Without
prescription periods, legal disputes would have the potential to be
drawn out for indefinite periods of time bringing about
prolonged
uncertainty to the parties to the dispute.  The quality of
adjudication by courts is likely to suffer as time passes,
because
evidence may have become lost, witnesses may no longer be available
to testify, or their recollection of events may have
faded.  The
quality of adjudication is central to the rule of law.  For the
law to be respected, decisions of courts
must be given as soon as
possible after the events giving rise to disputes and must follow
from sound reasoning, based on the best
available evidence.
[12]
[17]
The plaintiff lodged his claim with the defendant approximately 4
days prior to expiry of the three (3) year
period provided for in
terms of section 23(1) of the RAF Act. His erstwhile attorneys then
instituted action out of the Regional
Court, Bloemfontein within the
time period stipulated in terms of the provisions of section 23(3) of
the RAF Act. Summons was issued
a mere 6 days before expiry of the
five (5) year period provided for in section 23(3) of the RAF Act.
[18]
Particulars regarding the quantum of the plaintiff’s claim
instituted in the regional court are not
available. What is available
is the quantum of the claim instituted in this court on 17 October
2019 by his current attorneys.
The initial claim against the
defendant in this court amounted to R280 000.00 and was pleaded
as follows:
“
8. As a result of
the aforesaid accident the Plaintiff suffered:
8.1
General damages including loss of amenities of life –
R280 000.00
8.2
Future medical treatment; (Section 7(4)(a) Undertaking.
TOTAL  R280 000.00”
[19]
Why the plaintiff issued summons in this court during October 2019 in
the above mentioned amount is not fully
explained. The reason clearly
is not as a result of the fact that the quantum of the plaintiff’s
claim exceeded the monetary
jurisdiction of the regional court
because the claim remained within the parameters of the regional
court’s monetary jurisdiction.
Almost a year and nine months
later, on 28 July 2021 the plaintiff filed a notice to amend in terms
of Rule 28(1) of the Uniform
Rules of Court when paragraph 8 of the
particulars of claim was amended to read as follows:
“
8.1
As a result of the aforesaid accident the Plaintiff suffered;
8.1.1
Past and future loss of earnings and/or loss of earning capacity in
that at the time of
the accident the Plaintiff was employed as a tyre
fitter and operative wheel balance (
sic
) at Kwik Fit. Due to
the injuries sustained in the accident he is no longer able to return
to work and is regarded as an unfair
competitor in the open labour
market;
8.1.2
The Plaintiff has suffered general damages in an amount of
R800 000.00;
8.1.3
The Plaintiff has suffered past loss of earnings in the amount of R
339 487.00;
8.1.4
The Plaintiff will suffer a loss of future income in the amount of R
1 631 374.00.
8.1.5
The Plaintiff’s total loss of earnings
(sic)
is thus
R2 770 861.00.”
[20]
The defendant subsequently filed an amended plea raising the two
special pleas against the plaintiff’s
amended particulars of
claim.  From the medical reports, the Free State Emergency
Services, more specifically the “Ambulance
Form” obtained
by the plaintiff’s erstwhile attorneys, it appears that the
plaintiff’s injury is noted as an
open fracture of the left leg
or Tibula/Fibula fracture. It is also indicated that the plaintiff is
unemployed.   In
the “serious injury report”
(RAF4) compiled by Dr J J Schutte on 25 October 2016 the diagnosis of
a “distal tibia
and fibula fracture with severe residual
symptoms, ankylosed ankle left” was noted. A diagnosis based
impairment of 34% and
whole person impairment of 14% were made by Dr
Schutte.
[21]
From the medical records discovered by the plaintiff it seems as if
the plaintiff was involved in a further
incident on 11 April 2013
when a forklift was lifting a “big wheel and accidently dropped
it on the patient’s left
foot.” The x-rays revealed the
previous injury to the left foot and the old tibial fracture with
screws was observed. In
the medico legal report compiled by Dr LF
Oelofse, an orthopaedic surgeon, dated 25 October 2016, it is opined
that the plaintiff
was unable to return to his former employment at a
tyre company doing fitting and balancing of tyres due to the
debilitating effect
of his left lower leg/ankle injury on his
physical abilities.
[22]
The extent of the plaintiff’s injuries and his prognosis
regarding future medical treatment and his
possible future loss of
income and employability were available prior to the issue of summons
in this court during October 2019,
yet the amount claimed remained
within the monetary jurisdiction of the regional court. The medico
legal report by Dr Schutte was
obtained by the plaintiff’s
erstwhile attorneys in October 2016.  The same applies to the
report compiled by an occupational
therapist who evaluated the
plaintiff on 24 February 2017, the report by an industrial
psychologist dated 22 June 2017 and the
actuarial report dated 11
July 2017. From the calculations done by the actuary the loss of
income ranged between R1 294 693.00
to R1970 861.00 subject
to the question whether the plaintiff would be able to continue his
work as a gardener or becomes unemployed.
[23]
Notwithstanding the opinions obtained by these experts regarding the
quantum of the plaintiff’s claim,
the appellant persisted with
his claim in the regional court until October 2019 when summons was
issued in the high court. Evidently
the contents of the numerous
expert reports were not taken into consideration when summons was
issued in the regional court, nor
initially, in this court. The
attorneys acting on behalf of the plaintiff ought to have issued
summons in the high court prior
to 8 June 2017.
[24]
In
Oosthuizen
v Road Accident Fund
[13]
the Supreme Court of Appeal held that it is a plaintiff who chooses
the forum in which to litigate and not a defendant. In the
Oosthuizen
matter the facts were that the plaintiff issued summons in the
magistrates’ court. Later, when it was found that
the claim
exceeded the monetary jurisdiction of the magistrates’ court,
the plaintiff applied to have the case transferred
from the
magistrates’ court to the high court having jurisdiction. The
plaintiff was unable to withdraw the claim instituted
in the
magistrates’ court and issue a fresh summons in the high court
as the claim had already prescribed. The Supreme Court
of Appeal held
that there is no statutory provision authorising such transfer.
Bosielo JA held as follows:
“
The appellant had
a right to institute action in the appropriate forum to the full
extent of his claim. Prescription has extinguished
part of his claim.
For that consequence his attorneys are to blame.”
[14]
[25]
In
Oosthuizen
v Road Accident Fund
it was held that Mr Oosthuizen was legally represented and fully
informed about all the implications of the injuries sustained
by him.
His attorneys, even when they became aware of the full extent of his
claim, nevertheless persisted in the path that led
them to eventually
apply for the matter to be transferred to the high court. The
attorneys ought to have switched forums when it
became clear that
they should do so to protect their client’s interests. The
claims against the Road Accident Fund are time
bound in terms of the
provisions of section 23(1) and section 23(3)  and like any
other litigant the Road Accident Fund is
entitled to raise a defence
based on prescription.
[15]
[26]
If a claim is not instituted within the prescribed time, a litigant
may be barred from having the dispute
adjudicated upon by a court. As
held by Van der Westhuizen J the
Mdeyide
matter, this principle has been recognised, not only in our legal
system, but in many others, for centuries.
[16]
I am therefore not convinced of the argument raised on behalf
of the plaintiff that the summons issued in the regional court

successfully interrupted prescription. It is clear from the judgment
in the
Oosthuizen
case that, albeit that the high court has inherent jurisdiction to
regulate its own process, the powers do not extend to the assumption

of jurisdiction which it does not otherwise have.  The
plaintiff’s claim, instituted in this court, has prescribed.
[27]
Based on the argument that a plea of
lis
pendens
does not have the effect of an absolute bar to proceedings in which
the defence is raised, the plaintiff contends that the court
has a
wide discretion whether or not to stay the proceedings or hear the
matter depending on what is just and equitable to do in
circumstances
of the matter.
[17]
Having
regard to the nature of the action which had been instituted
timeously in the regional court, the quantum of the plaintiff’s

claim, the aim and object for which the RAF Act was enacted and the
interest of justice, the argument on behalf of the plaintiff
is that
a stay of the action in this court would amount to an injustice to
the plaintiff.
[28]
The relief claimed by the plaintiff is that the plea of
lis alibi
pendens
by the defendant be upheld and that an order be issued
that the plaintiff should withdraw his action in the Bloemfontein
Regional
Court and allow the claim to be adjudicated in this court.
In
Oosthuizen v Road Accident Fund
it was held
that a transfer of the matter from the magistrates’ court to
the high court would be akin to breathing
new life into a part of the
plaintiff’s claim that has been extinguished by prescription.
As a result of the finding that
the plaintiff’s claim has been
extinguished by prescription, the inevitable result is that the
special plea of
lis alibi pendens
be upheld.
[29]
The order that I consequently make is as follows:
1.
The Defendant’s first special plea of prescription of the
Plaintiff’s claim is hereby upheld.
2.
The Plaintiff’s claim has become extinguished by prescription.
3.
The Defendant’s second special plea of
lis alibi pendens
of
the Plaintiff’s claim is upheld.
4.
The Plaintiff’s claim against the Defendant is accordingly
dismissed with costs.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Plaintiff:
ADV.
D.R. THOMPSON
Instructed
by:
TSHANGANA
& ASSOCIATES INC
BLOEMFONTEIN
On
behalf of the Defendant:
N.
P BANDA
Instructed
by:
OFFICE
OF THE STATE ATTORNEYS
BLOEMFONTEIN
[1]
Act 56 of 1996
[2]
Section 23(3)
of the
Road Accident Fund Act, 56 of 1996
.
[3]
2018 (5) BCLR 527 (CC).
[4]
2011 (2) SA 26 (CC).
[5]
Act 68 of 1969.
[6]
2016[ZAFSHC179].
[7]
At [36].
[8]
Act 10 of 2013.
[9]
At [209].
[10]
Act 66 of 1995.
[11]
Road Accident Fund v Mdeyide
2011 (2) SA 26
(CC) at [8].
[12]
At [8].
[13]
(258/10)
[2011] ZASCA 118
(6 July 2011).
[14]
At [26].
[15]
At [23]. See also Shabangu v Road Accident Fund 2013(3) SA 245 (GNP)
[16]
Mdeyide (supra) at [2].
[17]
Ferreira v Minister of Safety and Security & Another (1696/2011)
[2015] ZANCHC 14
(4 September 2015) at [8].