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Mdunjana v Road Accident Fund (52582/2020) [2022] ZAGPPHC 618 (18 August 2022)

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Personal Injury Law - Road Accident Fund
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Brief Summary

Prescription — Special plea of prescription — Plaintiff's claim against the Road Accident Fund arising from an accident on 4 April 2018 — Claim lodged on 3 June 2020, beyond the two-year prescriptive period — Defendant's argument based on the Road Accident Fund Act, asserting claim had prescribed — Court found that the national lockdown due to the Disaster Management Act created an impossibility for the plaintiff to lodge the claim timeously — Dismissal of the special plea upheld, with costs awarded to the plaintiff.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a High Court trial in the Gauteng Division, Pretoria, in which the Road Accident Fund (RAF) raised a special plea of prescription against a claim for compensation arising from a motor vehicle accident. The plaintiff was Mdunjana, SE, and the defendant was the Road Accident Fund.


The matter was set down for trial on 12 August 2022. When the case was called, the parties agreed that the RAF’s special plea of prescription would be determined first. They further agreed that, depending on the outcome of that special plea, the remaining issues of liability and quantum would be separated in terms of Uniform Rule 33(4), with liability to proceed.


After hearing argument, the court dismissed the special plea of prescription with costs. The court then sought confirmation from the RAF’s counsel as to whether any evidence would be led on liability or whether the plaintiff’s version would be tested. The RAF indicated it had no evidence and did not intend to challenge the plaintiff’s version of how the collision occurred. After an adjournment, the parties presented draft orders dealing with (i) the dismissal of the special plea and (ii) separation of issues and a concession on liability, which were made orders of court. The plaintiff then requested reasons for the dismissal of the special plea, which the court provided in this judgment.


The dispute concerned the timely lodging of an RAF claim in an unidentified driver matter during the COVID-19 lockdown period, and whether the claim had prescribed under the Road Accident Fund Act 56 of 1996 and its regulations, notwithstanding the lockdown and closure of RAF offices.


2. Material Facts


The facts relevant to the special plea were expressly treated by the court as common cause and not contentious.


The accident occurred on 4 April 2018. The plaintiff’s claim was lodged with the RAF on 3 June 2020. The RAF pleaded that the “insured driver” was unidentified, and on that basis contended that the claim had to be lodged within two years of the accident, namely on or before 3 April 2020, and that lodging on 3 June 2020 meant the claim had prescribed.


It was also common cause and a matter of public record that, from midnight on 26 March 2020, South Africa entered a national lockdown under the Disaster Management Act 57 of 2002 and its regulations. During the initial lockdown phases, non-essential services were suspended and a curfew was imposed. The country remained at alert level 5 until 30 April 2020, and then moved to alert level 4 from 1 May 2020 to 31 May 2020.


Crucially for the special plea, it was common cause that the RAF’s offices were closed to the public throughout the period 27 March 2020 to 31 May 2020. The court recorded that it was not argued and there was no evidence that the RAF implemented or attempted to implement any mitigatory measures (such as electronic submission) to enable the lodging of claims during the closure period.


The court accepted that the lockdown and the office closures prevented the plaintiff from lodging the claim by 3 April 2020, and considered the effect of that impossibility on prescription under the RAF scheme.


3. Legal Issues


The central legal question was whether the plaintiff’s claim had prescribed under the Road Accident Fund Act and the relevant regulations governing claims where the driver or owner is unidentified, in circumstances where the final days of the two-year lodging period fell within a period of lockdown restrictions and closure of RAF offices to the public.


More specifically, the court had to determine whether, despite the RAF Act being a specialist statute with its own prescription regime (and despite the general Prescription Act 68 of 1969 being inapplicable to RAF claims), the common-law/constitutional maxim lex non cogit ad impossibilia (the law does not compel the impossible) could operate so that the plaintiff was not non-suited by an objectively impossible requirement of timeous delivery during lockdown.


The dispute was primarily concerned with the application of legal principle to largely undisputed facts, namely the legal consequences of objective impossibility on the running of a statutory prescription period under the RAF scheme.


4. Court’s Reasoning


The RAF’s argument rested on the proposition that the Road Accident Fund Act does not permit an extension of the prescriptive period for lodging claims. The RAF located its contention in section 17(1)(b) read with Regulation 2(1)(a), which requires that a claim relating to an unidentified owner or driver must be sent or delivered within two years from the date the cause of action arose. On this approach, because the accident occurred on 4 April 2018, the claim had to be lodged by 3 April 2020 and was therefore prescribed when lodged on 3 June 2020. The court recorded that this was the sole argument advanced by the RAF on prescription.


The court accepted that ordinarily the Prescription Act 68 of 1969 may extend time periods for enforcement of debts, but held that it did not assist claimants against the RAF because the RAF Act contains a specific prescription regime tailored to road accident compensation. In this respect, the court referred to Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC), where it was held that the RAF Act’s prescription provisions exist precisely because the Prescription Act was “not regarded as appropriate” for this field. The court therefore treated the inapplicability of the Prescription Act as established.


However, the court emphasised that the absence of recourse to the Prescription Act was not dispositive of the present problem, because a different principle could operate in situations of genuine impossibility. The court relied on the Constitutional Court’s decision in Van Zyl NO v Road Accident Fund 2022 (3) SA 45 (CC). In Van Zyl, the Constitutional Court dealt with a situation where statutory exceptions in section 23(2)(b) and (c) of the RAF Act (relating to mental health detention and curatorship) did not cover a claimant’s circumstances, yet compliance with statutory requirements was impossible, and the majority applied the maxim lex non cogit ad impossibilia.


Drawing from Van Zyl, the court treated the impossibility principle as a rule grounded in logic, nature, and reality, and not as a discretionary relaxation based on subjective assessments. It noted the Constitutional Court’s articulation that a law cannot be applied as law where compliance is objectively impossible, and that the principle forms part of the rule of law, a foundational value of the Constitution. The court applied that approach to the lockdown context.


On the facts, the court reasoned that during alert levels 5 and 4 there was an objective impediment to lodging claims timeously. Two elements combined to create the impediment: first, the legal operation of lockdown restrictions; and second, the closure of the RAF’s offices to members of the public throughout the relevant period. The court placed weight on the absence of any contention or evidence that the RAF implemented alternative measures, such as electronic submission, that might have enabled compliance without breaching lockdown regulations. The court further reasoned that even if a claimant had elected to breach lockdown regulations to attempt physical delivery, that would not have solved the problem because the RAF’s offices were closed and no one would have been available to receive the claim.


In the court’s view, the plaintiff (and similarly placed claimants) therefore faced a “true situation of impossibility” that was not of the claimant’s making, but rather was brought about by the confluence of law (lockdown regulation) and the RAF’s closure without alternative delivery mechanisms. On that basis, the court held it was impossible for the plaintiff to deliver the claim by 3 April 2020.


The court then quantified the effect of the lockdown on the plaintiff’s remaining time. It reasoned that because the lockdown commenced on 27 March 2020, it effectively shortened the time available to lodge by eight days. The court considered it appropriate that, once the RAF offices reopened on 1 June 2020 and the impediment was removed, the plaintiff should at least have been afforded the same period (eight days) to lodge the claim. The court found that the claim was delivered within that period, with delivery on 3 June 2020.


On these grounds, the court concluded that prescription could not be upheld against the plaintiff in these circumstances, and accordingly dismissed the special plea.


5. Outcome and Relief


The court dismissed the RAF’s special plea of prescription and ordered the RAF to pay the costs associated with that special plea.


Following the dismissal of the special plea, the parties placed draft orders before the court which were made orders of court. These included the separation of issues under Uniform Rule 33(4) and reflected an agreement between the parties, including a concession on liability by the RAF. The judgment providing reasons was directed only at the prescription determination.


Cases Cited


Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC)


Van Zyl NO v Road Accident Fund 2022 (3) SA 45 (CC)


Legislation Cited


Road Accident Fund Act 56 of 1996 (as amended by Act 19 of 2005)


Disaster Management Act 57 of 2002


Prescription Act 68 of 1969


Rules of Court Cited


Uniform Rule 33(4) of the Uniform Rules of Court


Held


The court held that, although the Prescription Act 68 of 1969 does not apply to RAF claims and the RAF Act contains its own prescription regime, this did not preclude application of the maxim lex non cogit ad impossibilia where compliance with the RAF Act’s time limits was objectively impossible.


The court found that the combination of COVID-19 lockdown restrictions and the closure of RAF offices to the public between 27 March 2020 and 31 May 2020, without any demonstrated alternative mechanism for lodging claims, created an objective impossibility for claimants to deliver claims timeously. In those circumstances, the plaintiff’s failure to lodge by 3 April 2020 could not found prescription.


The court further held that, because the lockdown deprived the plaintiff of the final eight days available to lodge the claim, it was appropriate that the plaintiff be afforded at least the same period after the RAF offices reopened on 1 June 2020. The plaintiff lodged the claim on 3 June 2020, within that period. The special plea of prescription was therefore dismissed with costs.


LEGAL PRINCIPLES


The Road Accident Fund Act constitutes a specialised statutory scheme for prescription in RAF matters, and the general prescription framework in the Prescription Act 68 of 1969 does not apply to claims against the RAF, consistent with Constitutional Court authority.


The maxim lex non cogit ad impossibilia is recognised as applicable in South African law and, as articulated in Constitutional Court authority, operates where there is objective impossibility of compliance with a legal requirement. The court treated this principle as grounded in the rule of law and therefore capable of operating in the context of statutory prescription under the RAF Act where compliance becomes objectively impossible.


Where compliance with a statutory time bar is rendered objectively impossible by external conditions (here, lockdown regulations combined with the closure of the RAF’s offices and the absence of alternative submission mechanisms), a claimant cannot be expected to do the impossible, and prescription cannot be upheld on the basis of the period during which compliance could not be achieved.


In assessing the consequence of impossibility, the court accepted an approach that effectively restores at least the period lost due to the impossibility once the impediment is removed, where the claimant acts within that restored period.

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[2022] ZAGPPHC 618
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Mdunjana v Road Accident Fund (52582/2020) [2022] ZAGPPHC 618 (18 August 2022)

IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No. 52582 /2020
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED No
18 AUGUST 2022
In the matter between:
MDUNJANA,
SE

PLAINTIFF
And
ROAD ACCIDENT
FUND

DEFENDANT
JUDGMENT
MILLAR  J
1.
The
present matter was set down for hearing for trial on 12 August 2022.
When the matter was called, I was informed by counsel
that the
parties had agreed that the defendant’s special plea of
prescription should be heard first and subject to my finding
on the
special plea, the issues of liability and the quantum of damages
separated
[1]
in terms of Rule 33(4) of the uniform rules of Court with the issue
of liability to then proceed.
2.
After hearing the arguments, in regard to
the special plea, I dismissed the special plea with costs.  I
then sought clarity
from counsel for the defendant in regard to
whether the defendant would be leading any evidence in regard to the
issue of liability
or wished to test the version of the plaintiff, as
contained in the affidavit that he had already submitted to the
defendant when
the claim had been filed.  I was informed by
counsel that the defendant had no evidence whatsoever and did not
intend to test
the evidence of the plaintiff at all in regard to how
the collision had occurred.
3.
After a short adjournment, counsel for the
parties then presented me with 2 draft orders, the 1
st
relating to the dismissal of the special plea and the 2
nd
relating to an agreement that had been reached between the parties
inter alia in regard to the separation of issues as well as
a
concession of liability.  Both orders were made orders of court
and marked “X1” and “X2” respectively.
4.
At the conclusion of the matter, counsel
for the plaintiff indicated that the issues surrounding the special
plea of prescription
were of importance and requested reasons for my
decision.  These then are the reasons.
5.
The facts upon which the special plea is
based are common cause and not contentious.  The special plea in
regard to prescription
was framed as follows:
‘
1.
The plaintiff’s claim against the defendant is governed by the
provisions of the Road Accident
Fund Act, Act 56 of 1996, as amended
by Act 19 of 2005 and its Regulations.
2.
The alleged accident occurred on 4 April 2018.  The claim was
lodged on 3 June 2020.
3.
The alleged insured driver is unidentified.  Hence the claim
should have been lodged
on or before 3 April 2020, within the
required two-year period.
4.
Under the circumstances as mentioned above, the Plaintiff’s
claim has become prescribed’.
6.
It is a matter of public record and common
cause between the parties that from midnight on 26 March 2020 and in
terms of the
Disaster Management Act 57 of 2002
and its Regulations,
the Republic was placed in national lockdown in terms of which all
non-essential services were required to
be suspended and a curfew
imposed. The initial level of the lockdown was on alert level 5.
This level of the lockdown persisted
until 30 April 2020.
7.
The alert level was adjusted to level 4
from 1 May 2020, and this persisted until 31 May 2020.  It is
further common cause
that the offices of the defendant, as well as
other non-essential services, were closed to the public throughout
the entirety of
alert level 5 and alert level 4 for the period 27
March 2020 until 31 May 2020.
8.
The argument advanced in support of the
special plea was that since the provisions of the Road Accident Fund
Act did not permit
the granting of an extension of the prescriptive
period for lodging of claims, any claim not lodged timeously, and in
particular
the plaintiff’s claim in the present matter, had
become prescribed and unenforceable.  This was predicated upon
Section 17(1)(b) read together with Regulation
2(1)(a) which provides that a claim in respect of an unidentified
owner or driver
of a motor vehicle must be sent or delivered within
two years from the date upon which the cause of action arose.
9.
This was the sole argument advanced by the
Defendant.
10.
Two factors prevented the plaintiff from
delivering his claim timeously, at the latest by 3 April 2020. The
first was as a result
of the operation of law and the second, a
consequence of the first, that the defendants’ offices were
closed throughout the
period to members of the public.
11.
The
effect of these two factors impacted not only persons in the position
of the plaintiff but also those wishing to file claims
in respect of
which the drivers or owners of the offending vehicles were identified
– claims in terms of section 17(1)(a)
of the Act and also those
who wished to serve summonses within the 5 year period as provided
for in section 23(3)
[2]
.
12.
It
was not argued and there was no evidence put before me to indicate
that the Defendant implemented or attempted to implement any

mitigatory measure which would have facilitated its continued ability
to receive claims, whether by electronic or other means which
would
not have resulted in a breach of the applicable lock down level and
its Regulations
[3]
.
13.
While ordinarily and in circumstances such
as occurred during the period of lockdown levels 4 and 5, the
provisions of the
Prescription Act 68 of 1969
would operate to extend
the applicable time periods generally in respect of the enforcement
of debts. This however offers no succour
to persons with claims
against the RAF.
14.
It
was held in Road Accident Fund v Mdeyide
[4]
:
‘
[50]
There is therefore a clear reason for the difference between the
Prescription Act and
the RAF Act. 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 Fund for those injured in road accidents. The legislature
enacted the RAF Act – and included provisions dealing
with
prescription in it – for the very reason that the
Prescription
Act was
not regarded as appropriate for this area.’
15.
However,
the fact that the
Prescription Act finds
no application in respect of
claims against the RAF is not dispositive of the matter. The
Constitutional Court was confronted with
such a situation in Van Zyl
NO v Road Accident Fund
[5]
.
16.
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 the running of prescription against such
persons in
section 23(2)(b)
and (c)
[6]
of the RAF Act. The majority found that the maxim
lex
non cogit ad impossibilia
was of application in the circumstances.
17.
In
this regard, it was held
[7]
that:
“
[51]
The impossibility principle was recognised, in this court and others,
as the route to take to excuse noncompliance with
the impossible. Its
acceptance in South Africa is not at issue, only its status and
whether it can be successfully and implicitly
excluded by s 23(1) of
the RAF Act. Before we can delve any further, we are enjoined to
consider whether the impossibility principle
is distinguishable from
'any law'.
[52]   The
impossibility principle originates as a rule of natural law and
justice. Of natural justice, Finnis 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 accounting hold good even when, as
in the medieval banking community, they are
unknown or
misunderstood.'
[53]
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
principle is an
awareness of the human condition, our capacities and, indeed,
possibilities. The impossibility principle flourishes
because it
distinguishes rationality, logic and reasonableness from the
opposite. It extricates what is always reasonable from
what is
reasonable in certain circumstances. Drawing on the writings of
Aquinas, 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
cannot 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.'
[54]   For a
law to be applied as law, compliance must be possible. Conversely and
by necessary implication, 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 the common law. Finnis
embraced the impossibility principle when he distinguished between
'acts that (always or in particular
circumstances) are reasonable all
things considered 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'.
[55]   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.”
18.
It
was further held
[8]
that
“
[125]
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.
[126] By parity of
reasoning, the maxim equally applies to this matter and, for as long
as the disability arising from Mr Jacobs'
mental condition persisted,
prescription did not begin to run. Under s 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, and upon the appointment
of the curatrix prescription could
not run against him because he was then placed under curatorship in
terms of s 23(2).”
19.
The failure of the Defendant to take any
steps to mitigate, for example by making arrangements for the
electronic submission of
claims or service upon them, the effects of
lockdown levels 4 and 5 meant that for the Plaintiff and indeed
anyone else whose claim
would have become prescribed in the period
starting at midnight on 26 March 2020 and ending on 31 May 2020, even
if they had elected
to breach the lockdown Regulations in order to
ensure that their claim was timeously delivered, would in any event
have found no
one at the offices of the Defendant to receive the
claim.
20.
The plaintiff and indeed every person who
wished to deliver or have documents served upon the RAF during the
period in question
was faced with a true situation of impossibility.
This was not a situation of the plaintiff’s own making, but an
objectively
impossible situation brought about by the confluence of
both the law and the RAF’s closure of its offices without
having
put in place any alternative to physical delivery or service.
21.
It was impossible for the Plaintiff to have
delivered his claim timeously for the reasons set out above. On the
basis that the lockdown
from 27 March 2020 shortened the time within
which the Plaintiff could deliver his claim by 8 days, it is apposite
that the same
period, at the very least, was afforded to him once the
offices of the RAF opened on 1 June 2020 and the impediment to
delivery
of his claim was removed. The claim was indeed delivered
within this period.
22.
It is for the reasons set out above that I
granted the order dismissing the special plea of prescription with
costs.
A MILLAR
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
HEARD
ON:

12 AUGUST 2022
JUDGMENT DELIVERED
ON:
12
AUGUST 2022
REASONS:

18 AUGUST 2022
COUNSEL FOR THE
PLAINTIFF:
ADV
W
BOTHA
INSTRUCTED
BY:

VAN NIEKERK ATTORNEYS INC
REFERENCE:

CVDV/FN2492
COUNSEL FOR THE
DEFENDANT:

ADV T KGOEBANE
INSTRUCTED
BY:

THE STATE ATTORNEY,
PRETORIA
REFERENCE:

RAF2021/3993(560/12878988/321/0)
[1]
The
Defendant in fact raised 3 separate special pleas, 2 in regard to
the plaintiff’s entitlement to claim general damages
and 1 of
prescription.  The pleas in regard to the claim for general
damages fall to be decided when the quantum of damages
is heard.
[2]
The
section provides that once a claim has been lodged within the 2- or
3-year period for identified or unidentified claims respectively

then a further period of 3 or 2 years respectively is afforded for
the issue and service of summons before the claim will become

prescribed. The total period in both instances amounts to 5 years
from the date the cause of action arose.
[3]
Section
11(1)(d)
of the
Road Accident Fund Act 56 of 1996
specifically
empowers the board to ‘
approve
internal rules and directions in respect of the management of the
Fund’
.
[4]
2011
(2) SA 26
(CC) at para 50
[5]
2022
(3) SA 45 (CC)
[6]
“
(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.”
[7]
By
Justice Pillay AJ with whom Mogoeng CJ and Khampepe J concurred at
paras [51] – [55] – footnotes omitted. The applicability

of the maxim to circumstances involving prescription was also
approved by the majority in the judgment of Justice Jafta at paras

[114] – [115].
[8]
Van
Zyl supra, The judgment of the majority at paras [125] – [126]

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