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[2017] ZASCA 21
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Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21; 2017 (4) SA 453 (SCA) (24 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 285/2016
In
the matter between:
NTSIENI
JOSEPHINE MANUKHA
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
Neutral
Citation:
Manukha
v Road Accident Fund
(285/2016)
[2017] ZASCA 21
(24 March 2017)
Coram:
Leach, Tshiqi,
Theron, Petse JJA and Molemela AJA
Heard:
20 February 2017
Delivered:
24
March 2017
Summary:
Road Accident Fund
Act 56 of 1996
:
ss 17(1)
;
23
and
24
read with
regulation
3(3)
(b)
(ii):
Damages: motor vehicle accident: claim for compensation against Road
Accident Fund: non-pecuniary loss forming part of a unitary
claim for
compensation and not constituting a separate and discrete claim:
prescription: late filing of RAF4 form thus not constituting
separate
claim, and consequently, claim for damages for non-pecuniary loss not
prescribed.
ORDER
On
appeal from:
Limpopo
Local D
i
v
i
sion
of the High Court
,
Thohoyandou
(
Kganyago
AJ
sitting
as court of first instance):
1
The appeal is upheld with costs.
2
The order of the high court is set aside and substituted with the
following:
‘
The
special plea of prescription is dismissed with costs.’
JUDGMENT
Petse
JA (Leach, Tshiqi, Theron JJA and Molemela AJA concurring):
[1]
This appeal concerns the question whether a claim for general damages
in terms of s 17(1)
(b)
of
the Road Accident Fund Act 56 of 1996 (the Act) had prescribed, due
to the fact that the serious assessment report incorporated
in the
RAF4 form was lodged outside of the time period allowed for the
issuing of summons under s 23(3) of the Act ie more than
five years
from the date on which the cause of action arose.
[2]
The appeal arises from the following factual background. On 14 August
2008 the appellant, Ms Ntsieni Josephine Manukha, was
a passenger in
a motor vehicle travelling on the Mavhoi Road in Limpopo. The motor
vehicle overturned allegedly as a consequence
of the negligence of
the driver of a passenger bus and the appellant suffered personal
injuries.
[3]
Subsequently, in July 2011, the appellant (as the plaintiff)
instituted an action in the
Limpopo
Local D
i
v
i
sion
of the High Court
for
compensation arising out of the accident in terms of s 17(1) of
the Road Accident Fund Act 56 of 1996 (the Act) against
the
respondent (the Road Accident Fund)
.
The Fund was established under the Act
[1]
and its object is the payment of compensation for loss or damage
wrongfully caused by the driving of motor vehicles.
[2]
It was alleged in her particulars of claim that she had, inter alia,
suffered a fracture of her left radius and ulna, and sustained
bruises on her hand. She accordingly claimed damages in the sum of
R700 000, of which R200 000 was for non-pecuniary
damages.
The particulars of claim also indicated that she ‘complied with
the provisions of s 24 of the Act by lodging the
prescribed form and
documentation’.
[4]
The Act prescribes certain requirements relating to lodgement of
claims for compensation against the Fund. It is apposite at
this
early stage to set these out first before turning to the further
background facts. The liability of the Fund to compensate
third
parties for damages arising from the driving of a motor vehicle is
set out in s 17 of the Act, which provides that:
‘
17 (1)
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 a motor vehicle where
the
identity of the owner or the driver thereof has been established;
(b)
subject to any 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 (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee's duties as
employee: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
(1A)
(a)
Assessment of a serious injury shall be based on a
prescribed method adopted after consultation with medical service
providers
and shall be reasonable in ensuring that injuries are
assessed in relation to the circumstances of the third party.
(b)
The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act 56 of 1974.’
[5]
Section 24 of the Act provides that a claim for compensation, which
must be accompanied by a medical report, shall, inter alia,
be set
out in the prescribed RAF1 claim form which shall be completed in all
its particulars.
[3]
A medical report is also to be completed on the prescribed form by
the medical practitioner who treated the injured person for
the
bodily injuries sustained in the accident from which the claim
arises.
[4]
[6]
Prescription of a claim is regulated by s 23, which in material
parts, provides that:
‘
23(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.
.
. .
(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.’
[7]
It is also apposite at this stage to refer to regulation 3(3)
(b)
(i)
of the Fund’s regulations
[5]
promulgated in terms of s 26 of the Act. It reads:
‘
(b)
A claim for compensation for non-pecuniary loss in terms of section
17 of the Act shall be submitted in accordance
with the Act and these
Regulations, provided that:
(i)
the serious injury assessment report may be submitted separately
after the submission of the claim at any time before
the expiry of
the periods for the lodgement of the claim prescribed in the Act and
these Regulations.’
[8]
Reverting to the factual matrix, during January 2009 the appellant
lodged her RAF1 claim form with the Fund. Paragraph 22 of
the RAF1
claim form, being the medico-legal report which s 24(2) of the
Act requires to be completed by the medical practitioner
who treated
the appellant for the bodily injuries she sustained, was left blank.
And as stated earlier, the compensation claimed
by the appellant
incorporated a claim relating to non-pecuniary loss. The proviso to
s 17(1)
(b)
provides that the obligation of the Fund to compensate for
non-pecuniary loss shall be limited to compensation for a serious
injury
as contemplated in subsection (1A).
[9]
That subsection (ss 17(1A)
(a)
and
(b)
)
provides that the assessment of a ‘serious injury’ shall
be based on a prescribed method and shall be carried out
by a medical
practitioner registered under the Health Professions Act 56 of 1974.
The prescribed method is catered for in the regulations.
To
constitute ‘serious injury’ the injuries must meet a
threshold of 30 per cent of what the regulations describe as
‘Impairment of the Whole Person’ or specified permanent
or long-term impairments.
[10]
Both the Act and the regulations require that a third party who
claims for non-pecuniary loss furnish the Fund with a serious
injury
assessment report in an RAF4 form. The RAF4 form need not be
submitted to the Fund simultaneously with the RAF1 form.
[11]
The dismal state of the RAF1 form submitted on behalf of the
appellant elicited a response from the Fund on 1 July 2009 wherein
it, inter alia, alerted the appellant’s attorneys to the fact
that there was no serious injury assessment report to substantiate
the claim for non-pecuniary loss, as required by the Act and the
regulations. The appellant’s attorneys did not respond until
on
26 July 2014 (which was more than five years from the date on which
the appellant’s cause of action arose) when they belatedly
served the RAF4 form on the respondent’s attorneys. According
to this report, prepared by a Dr Monyai on 3 May 2014, the
appellant
was assessed to have suffered 36 per cent ‘Whole Person
Impairment’. The report indicated that the appellant
sustained
head injuries. The narrative test was prepared by Dr Kumbirai who
concluded that the appellant’s injuries had,
inter alia,
resulted in serious long-term impairment or loss of bodily function.
[12]
As already mentioned, long before she submitted the RAF4 form, the
appellant had instituted action against the Fund in which
she, inter
alia, claimed payment of R200 000 representing non-pecuniary
loss for pain and suffering which she had included
in her RAF1 form
(albeit for a lesser amount). The Fund raised a special plea of
prescription relative to the claim for non-pecuniary
loss. It
asserted that:
‘
The
[appellant] had failed to provide the [respondent] with the RAF4
serious injury assessment report timeously as same should have
been
submitted by 13 August 2013.’
[13]
At the trial the high court heard the parties on the issue raised in
the respondent’s special plea only. How this came
about is not
clear from the record. There was, for example, no evidence led at the
trial. Nor was there any statement of agreed
facts prepared for
adjudication by the high court as contemplated in Uniform Rule 33.
[6]
Had that approach been adopted by the parties and sanctioned by the
high court it would then have become necessary for the court
to make
an order to that effect. We were, however, informed by the
appellant’s attorney that the salient facts as to when:
(a) the
RAF1 and 4 forms were submitted to the Fund; and (b) the action was
instituted against the Fund as encapsulated above were
common cause
between them. And that it was on that basis that the high court dealt
with the matter.
[14]
The high court, having heard argument, upheld the special plea with
costs. Most significantly, the high court considered that
the
pertinent question to be asked was ‘whether the serious injury
assessment report should have been lodged with the defendant
within a
period of five years’. After considering the import of s 23(1)
and regulation 3(3)
(b)
(i), and noting that the regulations do
not deal with prescription, the high court concluded that the
appellant’s claim for
non-pecuniary loss had prescribed under
s 23(3) of the Act because her RAF4 form was submitted after the
expiry of a period
of five years from the date on which her cause of
action arose. Consequently, the high court upheld the special plea
with costs.
It subsequently refused leave to appeal but made no order
as to costs. The appeal before us is with the leave of this court.
[15]
At the hearing of the appeal we were informed by counsel from the bar
that liability in relation to all of the other components
of the
appellant’s claim (barring non-pecuniary loss) was ultimately
conceded by the Fund. Accordingly, what remains in contention
is the
claim relating to the appellant’s non-pecuniary loss.
[16]
It is thus only necessary to determine whether the appellant’s
lodgement of the RAF4 form with the Fund in substantiation
of her
claim for non-pecuniary loss can be defeated by a defence of
prescription. The claim for non-pecuniary loss was also listed
in her
RAF1 form which was lodged with the Fund during January 2009 (after a
period of four and a half months from the date on
which her cause of
action arose). But the RAF4 form itself was submitted after the
expiry of a period of five years. This is what
lies at the heart of
this case.
[17]
The judgment of the high court was assailed by counsel for the
appellant on several grounds. Significantly, it was contended
that
the high court erred in concluding that the appellant’s claim
in respect of general damages had prescribed when in fact
a claim
therefor had been lodged within a period of three years from the date
on which the cause of action arose (s 23(1)
of the Act). And
that an action in pursuit of that claim was instituted within a
period of five years as provided for in s 23(3)
of the Act.
[18]
The Fund, however, contended that it was incumbent upon the appellant
to lodge the RAF4 form within ‘the extended period
of five
years’ from the date on which her cause of action arose. And
that the appellant’s failure to do so, so the
argument
continued, meant that she had no claim against the Fund in respect of
non-pecuniary loss. Thus, so the argument went,
as it was common
cause that the RAF4 form was lodged on 14 August 2014 after the
expiry of a period of five years from the date
of the accident, it
followed that whatever claim for non-pecuniary loss that the
appellant may have had prescribed on 13 May 2013.
Before us, counsel
for the Fund accepted, rightly so, that the appellant had but one
unitary claim for compensation against the
Fund arising from the
accident that occurred on 14 August 2008.
[19]
To my mind, on a proper reading of the Act and the regulations, the
Fund’s contentions cannot be sustained. First, s 17
of the
Act makes reference to ‘a claim for compensation’ and not
multiple claims. In addition, s 17 provides that
the Fund is
obliged to compensate a third party for non-pecuniary loss in respect
of serious injury only. The serious injury is
required to be assessed
as provided for in the regulations. Second, s 24 of the Act in
turn provides for the lodgement of
such ‘a claim’ and the
requirements that the third party must meet in lodging ‘the
claim’. Third, s 23(1)
of the Act which pertinently deals
with prescription talks of ‘a right to claim compensation under
s 17 from the Fund’.
In particular, s 23(3) provides
that no claim (in singular) lodged in terms of s 17(4)
(a)
or s 24 shall prescribe before the expiry of a period of five
years from the date on which the cause of action arose, and
the
appellant had instituted action within that period. Fourth,
regulation 3 (3)
(b)
(i)
provides that the serious injury assessment report may be submitted
separately from the submission of the claim itself. Implicit
in this
is that ‘the claim’ exists independently of ‘the
assessment report’. Thus the claim (inclusive
of a claim for
non-pecuniary loss) may be submitted in terms of s 24 of the Act
without the ‘serious injury assessment
report’. And, as
the high court correctly observed, there is nothing in the
regulations dealing with prescription, which
is dealt with
exclusively by the Act.
[20]
In
Nonkwali v Road Accident Fund
[2008] ZASCA 8
;
2009 (4) SA
333
(SCA) para 8, this court, with reference to judgments of this and
other courts, said:
‘
Authorities
are legion to the effect that a plaintiff who claimed compensation
for damages sustained as a result of wrongful and
negligent driving
under the Act's predecessors had but a single, indivisible cause of
action and that the various items constituting
the claim were thus
not separate claims or separate causes of action. This
interpretation, in my view, necessarily extends to claims
brought
under the Act as it has the same objective and effect as these
previous statutes.’
(Footnotes
omitted.)
(See
also the unreported judgment in
Van
Zyl v Road Accident Fund
2012
JDR 0972 (GSJ).) It suffices to point out that in view of the Fund’s
belated acceptance that the appellant had a unitary
and indivisible
claim it is not necessary to belabour that point in this judgment.
[21]
In the light of the aforegoing the special plea raised by the Fund
should not have been upheld by the high court. At best for
the Fund
it was entitled to a stay of that part of the appellant’s claim
relating to compensation for non-pecuniary loss
until the process set
out in regulation 3 had been complied with by the appellant. (See in
this regard
Road
Accident Fund v Duma and Three Similar Cases
[2012]
ZASCA 169
;
2013 (6) SA 9
(SCA) para 40;
Road
Accident Fund v Lebeko
[2012]
ZASCA 159
; 2012 JDR 2176 (SCA) paras 28-32. See also regulation
3(3)
(c)
which
makes plain that the Fund shall
only
be obliged to compensate
a third party for non-pecuniary loss as provided in the Act if a
claim is supported by a serious injury assessment report submitted
in
terms of the Act and the regulations and the Fund is satisfied that
the injury has been correctly assessed.)
[22]
What can be inferred from the narrative set out above is, inter alia,
that upon receiving the RAF4 form the Fund adopted the
stance that as
it was served after the expiry of a period of five years from the
date of the accident, the claim for non-pecuniary
loss should be left
out of the reckoning. In light of what has been said above, the Fund
was mistaken in adopting such attitude.
In the ordinary course, the
regulations provide that when the Fund receives an RAF4 form it must
do one of two things. It may either
accept it and then deal with the
claim on that basis, or reject the RAF4 form if it is not satisfied
that it complies with the
Act and the regulations. In the latter
event, it must, (a) in terms of regulation 3(3)
(d)
(i)
provide reasons for doing so; or (b) it may, if it is not satisfied
with the medical assessment, direct that the appellant submits
herself to a further assessment at the Fund’s expense by a
medical practitioner designated by the Fund as provided in regulation
3(3)
(d)
(ii).
If, notwithstanding this process, the Fund rejects the RAF4 form, the
regulations provide for an extensive procedure that
would be
triggered in the event that the third party wishes to contest the
rejection of the RAF4 form. (See, in this regard,
Road
Accident Fund v Duma and Three Similar Cases
para
7.) But for the present purposes nothing more need be said on that
score. It remains only to emphasise that the Act and the
regulations
do not contemplate that a claim for non-pecuniary loss will prescribe
if the RAF4 form is delivered outside of the
period of prescription,
should prescription have earlier been interrupted by the institution
of proceedings.
[23]
It is necessary to comment on the state of the Fund’s heads of
argument. Its heads of argument comprise 11 pages, but
all of the
even numbered pages are missing. When this shortcoming was brought to
counsel’s attention at the hearing he could
offer no
intelligible explanation as to how this came about. Accordingly, the
conclusion is inescapable that no proper consideration
was given to
the preparation and collation of the respondent’s heads of
argument. To my mind, counsel’s remissness
is deserving of the
strictest censure from this court. It must therefore be said without
equivocation that the time will come when
this court will be less
tolerant of counsel who continue to be content with work that can
only be described as shoddy.
[7]
[24]
Accordingly, the appeal must succeed. In the result the following
order is made:
1
The appeal is upheld with costs.
2
The order of the high court is set aside and substituted with the
following:
‘
The
special plea of prescription is dismissed with costs.’
______________________
X
M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
S O Ravele.
Instructed by:
S O Ravele Attorneys, Makhado.
c/o Phatshoane Henney Attorneys,
Bloemfontein.
For
the Respondent:
T C Maphelela.
Instructed by:
Noko Maimela Attorneys, Burgersford.
c/o Matsepes Inc, Bloemfontein
[1]
Section 2 of the
Act.
[2]
Section 3 of the Act.
[3]
Section 24(1)
(a)
of
the Act.
[4]
Section 24(2)
(a)
of
the Act.
[5]
Promulgated in the Road Accident Fund
Regulations G N R770, GG 31249 dated 21 July 2008.
[6]
In terms of rule
33(1) of the Uniform Rules of Court, parties to a dispute may agree
upon a written statement of facts in the
form of a special case for
the adjudication of points of law. This statement sets out the facts
agreed upon and the questions
of law in dispute between the parties,
as well as their contentions. Rule 33(3) gives the court the
discretion to draw any inference
of fact or law from the facts and
documents as if proved at trial. See in this regard:
Mighty
Solutions t/a Orlando Service Station v Engen Petroleum Ltd &
another
[2015] ZACC 34
;
2016 (1) SA 621
(CC) para 61, and
Bane
& others v D'Ambrosi
[2009] ZASCA 98
;
2010 (2) SA 539
(SCA) para 7 where this court said
that rule 33(1) and (2) made it clear that the resolution of a
stated case proceeds on the
basis of a statement of agreed facts,
and is, after all, seen as a means of disposing of a case without
the necessity of leading
evidence.
[7]
Rule 10 of the rules of this court
clearly set out the manner in which heads of argument must be
prepared in this court. It would
be useful for counsel to revisit
these rules, and also bear in mind the suggestions by the former
Deputy President Harms in an
article titled ‘Heads of argument
in courts of appeal’ accessible on
www.sabar.co.za/law-journals/2009/.../2009-december-vol022-no3-pp20-22.pdf
.