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[2023] ZAECELLC 33
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Topolo v Road Accident Fund (EL 359/2014) [2023] ZAECELLC 33 (26 September 2023)
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Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case
No: EL 359/2014
REPOTABLE:
NO
In
the matter between:
LINDELA
JULY TOPOLO
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
Madyibi
AJ
Introduction
[1]
This
matter came before this Court for determination of two special pleas
in terms of section
23(3)
of
the
Road
Accident
Fund
Act
56
of
1996
('the
Act').
The
plaintiff
instituted an action for damages which he allegedly suffered during a
motor vehicle accident
that
occurred
on
12 May 2009. During the time of the accident, the plaintiff was a
passenger.
The
defendant
resisted
the
action
by
raising
the
special
pleas
as
aforementioned,
contending that the plaintiff's claim had prescribed
.
Subsequent
to an agreement between the parties, I ordered in terms of Uniform
rule 33(4)
[1]
that the special
pleas be adjudicated separately from the main case and the
proceedings in the main case be stayed pending the
outcome of this
special plea.
The
pleadings
[2]
The
plaintiff
alleged
in
his
particulars
of
claim
that
on
12
May
2009,
he
was
a passenger
in
a
motor
vehicle,
a
Dyna
Truck
with
registration
letters
and
numbers YDP[…],
driven by M Jezile of number 14[…] Nu 1[…] Mdantsane
.
The plaintiff
further alleged that the aforementioned driver lost control of the
truck and it overturned when he tried to avoid
a head-on collis
i
on
with an unknown oncoming motor vehicle. The accident occurred at Dust
Street, Wilstonia in East London
.
According to
the plaintiff, the accident was solely caused by the negligent
driving of the unknown driver (insured driver)
.
The plaintiff
allegedly
suffered
damages
in the
amount
of R1 859 544.16
of which
R800
000 is
for
general
damages
(inclusive
of
pain
,
suffering
and
loss
of
amenities
of
life)
,
R59 544
.
16
is for future medical and R1 million is for loss of earnings.
The
special plea
[3]
With
regard
to
the
first
special
plea
the
defendant
pleaded
that
the
plaintiff
had until 11 May 2014
to serve summons on it. The plaintiff only served the summons on the
defendant on 28 August 2014
,
some two and a
half months after the expiry of the five years and as such plaintiffs
claim
has
prescribed.
The
defendant
relies
on section 23(3) of the Act.
[4]
The
defendant
further
pleaded,
in
respect
of
the
second
special
plea,
that
the plaintiff having
lodged his claim with the defendant within the required period,
failed to lodge the Serious
Injury
Report
(RAF 4 Form)
within five years
from the date on
which the cause of action arose
.
The defendant
contended that plaintiff's claim of non-pecuniary loss had become
prescribed. The plaintiff only lodged the RAF 4
form on 3 May 2016
.
On
the
date of hearing, the second special plea was abandoned by the
defendant for lack of merit.
The
plaintiff's replication of the special plea
[5]
The
plaintiff
pleaded,
in
replication
to
the defendant's
special
plea,
that
after
his accident, on 12
May 2009, he employed the services of Mr B
.
J Jekubeni
('the deceased') to assist him with his claim against the Road
Accident Fund. The deceased lodged the plaintiff's claim
with the
defendant
on
19 August 2009. The deceased prepared and issued the summons in East
London Circuit Court on 24 March 2014 and thereafter died
on the date
of issue of summons, without having served the summons on the
defendant. The deceased was a sole practitioner and the
executor in
the estate of the deceased was appointed on a later date. The
executor only appointed the legal representative to administer
the estate
of the deceased which
included
the legal practice of
the deceased in July 2014.
[6]
The
plaintiff further
pleaded
that
his claim
against
Road Accident Fund had not prescribed as his attorney had died. It
was impossible to have summons served as the plaintiff
and the
attorney was prevented by a superior force of death from serving the
summons to the defendant timeously. The plaintiff
pleaded further
that the impossibility which prevented him from serving his summons
on the defendant remained in existence until
the time when the
attorney was appointed to handle the legal practice of the deceased.
The plaintiff relied on the Constitutional
Court judgment
in
Van
Zyl N.
0
.
v
Road Accident Fund.
[2]
The
Issues
[7]
This Court is called
upon to determine the merits of the defendant's special plea of
prescription against the plaintiff's claim
against Road Accident Fund
and whether the version of the plaintiff is valid to constitute
impossibility
in
law.
The
stated case
[8]
In a bid to assist
in the adjudication
of this matter,
both parties
filed a stated case
in which they agreed on the following facts-
(a)
The cause of action
arose on 12 May 2009.
(b)
The
plaintiff
lodged
his
claim
on
19
August
2009
with
the
assistance
of Mr BJ
Jekubeni, the
attorney.
(c)
The
summons
on
behalf
of
the
plaintiff
was
issued
by
his
erstwhile
attorney, Mr B. J.
Jekubeni on 24 March 2014. Mr Jekubeni died on 24 March 2014, the
same date as the date of issue of summons.
(d)
The date of
expiration of the five-year period within which the plaintiff was
required to serve the summons
on
the defendant was 11 May 2014.
(e)
The plaintiff only
served the summons on the defendant, on 28 August 2014, after the
expiry of the five-year period.
The
defendant's contention
[9]
The defendant
contends that the plaintiff's cause of action arose on 12 May 2009.
The plaintiff's
claim
has
prescribed
on
11
May
2014.
The
defendant
stated
that
the
Act does not provide
for condonation.
The
defendant
further
relied
on section 23(1), (2)
and (3) of the Act.
The defendant
contended
that the plaintiff does not belong to the category of claimants
listed in section 23(2)(a),
(b)
and
(c),
where the
running of the prescription is suspended. The defendant added that
the plaintiff was only failed by his erstwhile attorneys
of Mr B J.
Jekubeni in handling his matter expeditiously and not giving him
proper legal advice.
[10]
The defendant relied only on the stated case and did not lead any
oral evidence.
The
plaintiff's contention
[11]
The plaintiff
contented
that
his
claim
against
the
defendant
has
not prescribed
for reason that he
could not serve the summons on the defendant
before the expiry
of the five years for
the following reasons:
(a)
Mr Jekubeni, the
erstwhile attorney of the plaintiff died on 24 March 2014
,
the same date
of the issuance of summons
.
(b)
Mr Jekubeni was a
sole practitioner and there was no one to attend to his office until
the executor was appointed
to
wind up the estate of Mr Jekubeni including his legal practice
.
After
appointment
,
the executor
or executrix had to appoint a legally qualified person to deal with
the practice of Mr Jekubeni.
(c)
Plaintiff
only
came
to
know
about
the
death
of
his
erstwhile
attorney
on 21 May 2014, after
his claim had already prescribed
.
[12]
The
plaintiff
further
pleaded
that
the
executor
or
executrix
in
the
estate
of
Mr Jekubeni was appointed on 15 April 2014. The plaintiff pleaded
further that the practice of Mr Jekubeni was transferred to
attorneys, WT Mnqandi Attorneys, who then served the summons on the
defendant on 28 August 2014. The plaintiff pleaded that it
was
impossible to serve the summons on the defendant as the matter was
out of his hands
.
The
plaintiff relied on
Van
Zyl N.
O
.
v
Road Accident Fund
.
[3]
The
plaintiff further gave oral evidence to supplement the stated case.
The
plaintiff's oral evidence
[13]
The
plaintiff
testified
that
he
was
involved
in
a
motor
vehicle
accident
on 12 May 2009
wherein he was injured. During 2009 and after his accident, he was
referred by his
friend
to
Mr
Jekubeni
as
an
attorney
who
could
assist
him
with
his
claim
against the
Road
Accident
Fund.
The
plaintiff
further
testified
that
he
visited
the
office
of Mr Jekubeni and
thereafter entered into an agreement wherein Mr Jekubeni agreed to
assist him with his claim against the Road
Accident Fund.
[14]
The
plaintiff further testified that between 2009 and January 2014 Mr
Jekubeni only made him
see
one
doctor
in
Beacon
Bay
,
East
London
,
whom
the
plaintiff
could
not
remember
his
or
her
particulars
as
well
as
Dr
Olivier,
an
Orthopedic
he
visited
in
January 2014. The plaintiff further testified that he was accompanied
by Mr Peter
,
who
was working with Mr Jekubeni
,
to
see Dr Olivier in January 2014
.
However,
Mr
Peter told
the
plaintiff that he could not be seen by Dr Olivier because
there
were some problems. Mr Peter made appointment for another date of
consultation with Dr Olivier. On the next appointment,
the
plaintiff testified that he went on his own to visit the surgery of
Dr Olivier for his consultation and thereafter he went to
visit the
office of Mr Jekubeni, on the same date.
The
date
of
consultation
with
Dr
Olivier
as
it
appears
in
the
medical
report
[4]
of
Dr Olivier, is 21 May 2014. The plaintiff further testified that on
his arrival at Mr Jekubeni's office, he found the office
locked and
some ladies were busy packing the files in some boxes. The ladies
informed him that their father, Mr Jekubeni had died.
The said ladies
further informed the plaintiff that he should wait for a new person
to telephone him and inform him who will take
over his matter. The
copy of the letter of executorship
and
death certificate were handed to court as exhibit A and B
respectively.
[15]
The
plaintiff
further
testified
that
he
was
later
telephoned
by
Mr
Mnqandi
who informed him that
he would take over his file
.
Mr Mnqandi
further gave him directions to his office. They met in the office of
Mr Mnqandi and signed some documents. Mr Mnqandi
took him to two
doctors;
however,
he did not finalise
his claim.
The
plaintiff testified that an attorney from Mr Mnqandi's office
informed him that they could no longer continue handling his matter
because his summons was not served on the defendant
in time and his claim
had prescribed. The plaintiff further testified that Mr Jekubeni
never told him about time limits and when
his claim would prescribe.
The plaintiff further testified that between the two appointments
with Dr Olivier in January and May
2014, he never visited the offices
of Mr Jekubeni.
[16]
The plaintiff then
closed his case without calling any further witnesses.
Analysis
[17]
Section 23
of
the
Act
provides-
'(1)
notwithstanding
anything to the contrary in any law contained
,
but
subject
to
subsection
(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.
(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
.'
[18]
In
Van
Zyl NO v Road accident Fund
,
[5]
Theron
J concerning
Road
Accident Fund v Mdeyide
[6]
stated
that prescription of claims in terms of section 17 of the Act is
regulated exclusively
by
section 23 of the Act and not the
Prescription
Act
68 of 1969
.
[19]
The
significance
of
the
non-applicability
of
the
Prescription
Act
in
RAF
matters
is that the
prescription
is
triggered
from
the
date
of the
accident
as the cause
of action
lies in the
accident.
It is common
cause
that
the cause
of action
arose
on 12 May
2009
,
the date of
the accident. The defendant correctly submitted that the plaintiff
had until 11 May 2014 to serve the summons on the
defendant. The
defendant presented a prima facie defence of the special plea of
prescription which then shifted the onus on the
plaintiff to rebut
it.
[20]
The
fact that
Prescription Act finds
no application in respect of claims
against RAF is
not
dispositive
of
t
he
matter.
The
Constitutional
Court
was
confronted
with
such
a
situation in
Van
Zyl N.
O.
v
Road accident Fund.
This
case concerned
a
claim brought by a curator on behalf of a mentally incapacitated
person who did not fall into one of the two exceptions which
cater
for the delay in running of prescription against such persons in
section
23(2)(b)
and
(c)
[7]
of
the Act. The majority
found
that
'
for
as long as the disability
arising
from Mr Jacob
'
s
mental condition persisted, prescription did not begin to run. Under
section 23(1)
,
prescription
also did not begin to run against Mr Jacobs. This is because before
the curatrix was appointed, it was impossible for
him to comply with
the section ...
'
[8]
[21]
The Constitutional
Court further explained that:
'
[T]he
impossibility
principle
originates
as a rule of natural law and justice
.
Of
natural
justice
,
Finn
i
s
writes
:
"Principles
of this sort would hold good, as principles
,
however
,
extensively
they were overlooked
,
misapplied,
or defied in practical thinking
,
and
however, little they were recognised by those who reflectively
theorise about human thinking. That is to say
,
they
would
"
hold
good
"
just
as
mathematical
principles
of
account
i
ng
"hold
good
"
even
when
,
as
in
the
medieval
banking community
,
they
are unknown or misunderstood.
"
'
[9]
"
Grounded
in nature
,
science and
reality, the impossibility principle is an extension of logic. Like
Einstein's laws of gravity and Pythagoras' theorem,
the impossibility
principle enjoys a natural durability. Fundamental to the
impossibility p
r
inciple
is an awareness of a human condition
,
our capacities
and indeed
,
poss
i
bilities
.
The
impossibility
principle
flourishes
because
it
distinguishes
rational
i
ty,
log
i
c
and
reasonableness
from
the opposite
.
Drawing
on
the writings
of
Aqu
i
nas
,
Davitt writes:
"
The
construction that a judge will give to a piece of legislation should
be guided by humane discretion
,
because
the
best
of
enactments
can
not
possibly
include
all
the
imaginable
cases
that
could arise under it. Hence, where a literal construction of a
statute would work harsh injustice in individual cases, the
judge's
decision should ...
.
be
according to equity -
the
intention of the law
.
"
[10]
"
For
a law to be applied as law
,
compliance
must be possible
.
Conversely
and
by necessary application
,
a
law which is impossible to comply with cannot be applied as law
.
It
is this which sets the impossibility principle apart from other
principles of common law
.
Fennis
embraced the impossibility principle when he distinguished between
"
acts
that (always or in particular circumstances) are
reasonable
-
all-things-considered
(and not merely relative-to
-
a-particular
purpose) and acts that are unreasonable-all-things-considered
".
The
impossibility
principle
would
apply
not only to tasks
"
which
are absolutely impossible but tasks which, in the circumstances, are
not reasonably capable of performance
.'
"
[11]
[22]
It
was further held that 'this case is much narrower. It concerns the
absolute impossibility to perform tasks
.
The
impossibility is determined by objective conditions
,
by
science, nature and reality. Determining impossibility in this
instance is not an exercise of discretion informed by subjective
opinions and worldviews. It is this condition that distinguishes the
impossibility principle from
"
any
law". In turn it is impossibility that informs incapacity in the
context of this case
..
.
.
As
it appears in Nichols, the
lex
non cogit ad impossibilia
maxim
is part of the rule of law, one of the foundational values of our
Constitution. In that way the principle forms part of the
Constitution
'.
[12]
[23]
Objective
impossibility is a requirement of the very stringent provisions of
common law doctrine of supervening impossibility
of
performance.
[13]
[24]
The
plaintiffs
erstwhile
attorney,
Mr
Jekubeni,
died
on
24
March
2014
,
the
same date as the date
of issuance of summons from East London Circuit Court. The plaintiff
only came
to
know
about
the
death
of
his
erstwhile
attorney
on
21
May
2014
,
after
the expiry of five
years. It was impossible for the plaintiff to assist in any manner,
as the plaintiff had no knowledge about the
death of his erstwhile
attorneys until after the expiry of five years. The plaintiff also
had no knowledge that his claim was in
danger of prescribing due to
none service of summons on the defendant, prior to the expiry of five
years. The plaintiff only visited
the offices of his erstwhile
attorneys on 21 May 2014, when the summons ought to have been served
on 11 May 2014.
[25]
This Court finds that
the death of the plaintiffs erstwhile attorney, Mr Jekubeni,
on 24 March
2014 prevented
the
service
of summons
on the
defendant
,
prior
to the expiry of the
period of five years
.
The impediment
to serve summons on
the defendant continued
until
an
attorney,
Mr
Mnqandi,
was
appointed
to
assist
the
plaintiff
with
his
claim. Mr Mnqandi
caused the summons
to
be seNed
on
the defendant
on
28 August 2014.
Conclusion
[26]
Having
considered
all
the
above,
this
Court
is
satisfied
that
the
plaintiff
made
out
a case
in
common
law,
of
impossibility
to
postpone
the
running
of prescription
against him.
Order
[27]
Accordingly,
the following
order will be issued:
1.
The defendant's
special plea of prescription
is
dismissed.
The
defendant is ordered to pay the plaintiffs costs on party and party
scale.
T
MADYIBI
ACTING
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
Appearances
Counsel
for the Defendant
:
B
Mlinganiso
Attorneys
for the Defendant
:
State
Attorney
EAST
LONDON
Counsel
for the Plaintiff
:
B
Nduli
Attorneys
for the Plaintiff
:
B
Nduli & Company
EAST
LONDON
Date
Heard
:
24
July 2023
Date
Delivered
:
26
September 2023
[1]
Uniform
Rules of Court
:
Rules
Regulating the Conduct of the Proceedings of the Several Provincia
l
and
Local Divisions of the High Court of South Africa
.
[2]
Van
Zyl N
.
O
.
v
Road Accident Fund
[2021]
ZACC 44
;
2022
(3) SA 45
(CC)
;
2022
(2) BCLR 215
(CC)
.
[3]
Above
n 2 paras 50-127
.
[4]
Court
bundle to miscellaneous
index
at 27
.
[5]
Above
n 2 pa
r
a
12
.
[6]
Road
Accident
Fund
and
Another
v
Mdeyide
[2010]
ZACC
18
;
2011
(2)
SA
26
(CC)
;
2011
(1)
BCLR
1
(CC)
para 45
.
[7]
Section
23(2)(b) and (c) of the Act provides as follows
:
'
(2)
Prescription
of a claim for
compensation
referred
to in subsection (1) shall not run against
(a)
…
;
(b)
any
person
detained
as
a
patient
in
terms
of
any
mental
health
legislation
;
or
(c)
a person under
curatorship
.'
[8]
Above
n 2 para 126
.
[9]
Above
n 2 para 52
.
[10]
Above
n 2 para 53
.
[11]
Above
n 2 para 54
.
[12]
Above
n 2 para 55 and 125
.
[13]
Matshaz
i
v
Mezepoli Melrose Arch Pty Ltd
&
Another
[2020]
ZAGPJHC 136
;
(2021)
42 ILJ 600 (GJ)
para
36
.