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[2019] ZAGPPHC 284
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Matjoi v Road Accident Fund (57830/13) [2019] ZAGPPHC 284 (11 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHERS JUDGES:
YES
/
NO
(3)
REVISED
CASE
NUMBER: 57830/13
In
the matter between:
ELIZABETH
MATJOI
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDENT
JUDGMENT
RANCHOD J:
[1]
The plaintiff claims against the defendant in terms of the Road
Accident Fund Act
56 of 1996 (the Act) for damages arising out of a
motor vehicle accident said to have occurred on 31 December 2012 at
Walkerville,
De Deur, Gauteng in which she allegedly sustained bodily
injuries whilst a passenger in a motor vehicle which veered off the
road
and collided with a lamp post. (The papers refer to the
plaintiff intermittently as a passenger and also as a pedestrian. I
deal
with the issue presently.)
[2]
Plaintiffs attorneys submitted the statutory RAF1 claim form to the
defendant on 25
February 2013.
[3]
In paragraph 5 of the claim form the date, time and place of accident
has been provided
as well as that the accident was reported at 'De
Deur SAPS'. There is a request for the accident report number but it
has been
left blank. It is also required in the form that if the
claimant was a passenger, paragraph 6 is to be completed. However,
paragraph
6 has been left blank but with a note on it 'Attached
accident report.'
[4]
Paragraph 10 seeks an answer to the
question whether the claimant wore a seat belt. It has been left
unanswered. Likewise, no answer
is provided to the question in
paragraph 13 about the claimant's employment status although in a
medico-legal report obtained by
her attorneys from Orthopaedic
Surgeon Dr TS Ramokgopa (who consulted with the plaintiff on 17
February 2016) it is stated that
'She worked at a dog home to groom
dogs at the time of the accident. She had been in the same job since
1982.'
[5]
Paragraph 21 of the claim form provides
for a 'Declaration and Consent,' which is to be completed by the
claimant, signed and witnessed.
The entire paragraph has been left
blank and unsigned.
[6]
On 27 February 2013, two days after the
claim was submitted to the defendant (the RAF) it wrote to the
plaintiff's attorneys objecting
to the validity of the claim on the
following bases:
'1. RAF 1 form
should be properly signed and witnessed.
2.
Paragraph 6 of the RAF1 Form
should be properly completed.
3.
Completed AOR not included as
mentioned on the RAF1 Form, Paragraph 6.'
[7]
The next paragraph in the letter states
the following:
'Kindly note that as
a
result of the NON-COMPLIANCE with the
Act, prescription has not been interrupted. Kindly note further that
the running of the 120-day
period in which to investigate is
suspended until such time as the Act has been substantially compiled
with. This claim will remain
invalid until such time
as
the defect has been rectified and
your claim substantially complies with the Act...
.'
[8]
It appears that there was no reaction to
the letter by the plaintiff's attorneys.
[9]
Subsequently, plaintiffs attorneys
caused summons to be issued against the Fund on 21 October 2013.
Inter alia,
it
is stated in the particulars of claim that:
'(4) On the 31
st
of December 2011 at approximately 15H30 and at Walkerville, De Deur,
Gauteng province
a
motor
vehicle accident occurred involving
a
motor vehicle
with
unknown registration numbers which collided with the plaintiff.
At the time of accident plaintiff was
a
passenger in the motor vehicle with
unknown registration numbers.'
(My
underlining.)
[10] Although it
is stated that the unknown vehicle
'collided with the plaintiff'
in the next paragraph it is stated that the insured driver
'failed to allow any adequate clearance when attempting to pass
plaintiff who was
a
passenger.'
[11]
Although no details were provided in the
claim form about whether plaintiff is employed, past and future loss
of earnings are claimed
in the particulars of claim. Plaintiff also
claims non-pecuniary loss (general damages).
[12]
The defendant filed a plea dated 20
November 2013 but served on the plaintiffs attorneys on 13 January
2014, which includes two
special pleas. The first one is to the
effect that plaintiff failed to comply with Regulation 3 of the
regulations promulgated
under the Act read with section 17(1) and
section 17(1A) of the Act. In terms of section 17(1) the defendant's
obligation to compensate
a third party for non-pecuniary loss is
limited to compensation for a
'serious
injury'
as contemplated in section
17(1A). Regulation 3 provides a prescribed method of determining
whether an injury is
'serious',
and
also provides that a claimant for non-pecuniary loss shall submit
him- or herself to an assessment by a medical practitioner
in
accordance with the Regulations and shall obtain from the medical
practitioner concerned, a duly completed serious injury assessment
report (Form RAF 4) which must be submitted to the Fund. The
defendant pleads that the plaintiff failed to comply with these
requirements
hence the court is precluded from making a finding
whether the plaintiff is entitled to claim non-pecuniary loss from
the defendant.
The defendant accordingly pleaded that plaintiff's
claim for general damages should be dismissed, alternatively, it be
referred
to the 'appropriate forum' as set out in the Regulations and
that plaintiff pay the defendant's costs.
[13]
In a bundle titled 'Index to Plaintiff's and Defendant's Medico-Legal
Reports' is an RAF 4 Form
dated 25 November 2013 and completed by Dr
IS van der Westhuizen. (The Index states that the form has been
completed by 'Dr Jaap
Earle' which is clearly incorrect.) It is not
at all clear why the Form was not sent to the defendant immediately
after the assessment.
Instead, the original made its way into the
court file with the aforementioned 'Index to Plaintiffs and
Defendant's Medico-Legal
Reports' which was filed by plaintiffs
attorneys only shortly before the trial on 2 May 2018.
[14]
The second special plea is virtually identical to the first one and
is no doubt erroneously repeated.
[15]
On 3 May 2018 the defendant (after
having served it on the plaintiff's attorneys the previous day) filed
a notice of intention to
amend its plea by replacing the two special
pleas with two new special pleas as indicated in the notice. It
appears this step was
taken because on 2 May 2018 the plaintiff's
attorneys served the RAF4 form which was completed by Dr I.S. van der
Westhuizen on
25 November 2013. As a result, defendant did not intend
to persist with the special plea relating to the claim for general
damages.
Why plaintiff's attorneys did not serve the RAF4 form
earlier remains a mystery.
[16]
The first special plea now introduced
is, in essence, that the defendant had objected to the validity of
the claim and yet the plaintiff
failed to deal with it. The plaintiff
has therefore failed to comply with section 24 of the Act and the
claim is invalid.
[17]
The second special plea (in the event
that the first one is not upheld) is to the effect that the plaintiff
failed to furnish details
identifying the vehicle and driver of the
vehicle which collided with the plaintiff or other vehicles involved
in the accident
in paragraphs 6 and 8 of the RAF1 form. Further, the
plaintiff failed to comply with the provisions of section 19(f) of
the Act.
[18]
At the trial, plaintiff's counsel handed
up a 'Notice in terms of Rule 28(2) and (3)' in terms of which the
plaintiff objected to
defendant's proposed amendment on the grounds
that the intended special pleas lack the necessary averments to
sustain the defences
raised therein. I will revert to the objection
presently.
[19]
There is no acknowledgement of receipt
of the objection by the defendant's attorneys. I was informed that it
was handed to the defendant's
attorneys at court on the morning of
the trial.
[20]
The plaintiff also handed up a so-called
affidavit in terms of section 19(f) of the Act at the trial. I say
'so-called' because
the last page, on which the deponent's signature
appears, is a somewhat faded page and the original date has been
'tippexed' and
a new date inserted. The first two pages of the
affidavit are decidedly of recent origin and have not been initialled
by the plaintiff
and the Commissioner of Oaths. It seems to me that
the last page has been removed from another affidavit and attached to
the first
two pages which would be highly irregular if not
fraudulent.
[21]
The plaintiff is a female. Paragraph 2
of the first page of the affidavit states that she is a male. The
attestation clause does
not clearly state whether the deponent is a
male or female but repeatedly refers to 'he/she' without deleting the
inapplicable
gender.
[22]
In the 'affidavit' it is stated that the
accident occurred on 31 December
2012
when all indications are that it
occurred on 31 December
2011.
[23]
It is also stated in the 'affidavit'
that the plaintiff was taken to Natalspruit Hospital after the
accident. However, at paginated
page 22 of the Supporting Documents'
bundle is an 'Application for transfer of a patient' completed by the
Superintendent of Kopanong
Hospital addressed to the Superintendent
of Natalspruit Hospital stating the
'patient
stays at Vosloorus and want (sic) to be in a hospital close to where
she stays... To be close to his (sic) family.'
[24]
The police accident report also states
that plaintiff was initially taken to Kopanong Hospital, not
Natalspruit.
[25]
On 10 April 2017 the plaintiff's
attorneys served a notice in terms of Rule 28 that plaintiff intends
to amend paragraph 4 of the
particulars of claim by stating that the
accident occurred on 31 December
2012
and that a Ford Bantam motor vehicle
with registration letters and numbers YKS 893 GP is identified as the
vehicle involved in the
collision, its driver is identified and it is
stated that the plaintiff was a passenger in the vehicle. Why the
date of the accident
was sought to be changed from 21 December 2011
to 31 December 2012 is not understood as the correct year appears
from the police
accident report to be 2011 and not 2012.
[26]
It appears that the defendant did not
object to the intention to amend and ordinarily the plaintiff should
have filed the amended
paragraph of the particulars of claim in
accordance with the Rules. It is therefore not clear whether the
plaintiff decided to
abandon the intended amendment. But it is clear
that that amendment was not effected as appears from the pleadings as
they are.
[27]
The effect is that paragraph 4 of the
particulars of claim remains as is in which, although it is stated
that the accident occurred
on 31 December 2011, it is inexplicably
averred that an unidentified vehicle was involved, that the said
unknown vehicle 'collided
with the plaintiff' but then goes on to
state that she was a passenger in the unknown vehicle.
[28]
It gets worse. In paragraph 3 of the
particulars of claim it is stated that the defendant is liable
'where
the identity of the owner or driver thereof
(sic)
has been established.
'
At
paragraph 5.6 it is alleged that the insured driver
'failed to
allow any adequate clearance when attempting to pass plaintiff who
was a passenger.'
[29]
The plaintiff's attorneys were in
possession of the police accident report at an early stage as well as
the plaintiff's version
that she was a passenger in the insured
vehicle. The vehicle and its driver are mentioned in the report.
[30]
Nowhere in the accident report or other
documents, including the insured driver's police statement, is it
stated that he was attempting
to overtake another vehicle. Yet, in
the particulars of claim it is alleged that the insured driver
'failed to overtake at a point where
visibility was clear'
and that
'he
failed to give any adequate warning of the approach of his vehicle.'
The driver, in his police statement,
stated that he lost control of his vehicle, veered off the road to
his right hand side and
collided with an electric pole.
[31]
It is also alleged in the particulars of
claim that plaintiff was
initially
taken to Natalspruit Hospital when in fact, as alluded to earlier,
she was taken to Kopanong Hospital and thereafter transferred
to
Natalspruit.
[32]
I mention in some detail these glaring
inaccuracies to highlight how ineptly plaintiff's claim has been
handled with scant regard
to attention to detail.
[33]
The matter was allocated to me for
adjudication of only the special pleas raised by the defendant and
the plaintiff's objection
thereto. I deal firstly with the objection
by plaintiff.
[34]
The plaintiff stated that the grounds
for objection are as follows:
'1.
It is alleged at paragraph 2, of the Defendant's notice in terms of
rule 28, that
"The Plaintiff lodged a claim with the Road
Accident Fund (“the Fund”) on the prescribed RAF1 form on
25 February
2013. On 27 February 2013 the Defendant objected to the
validity of the Plaintiff's claim on the following
(sic):
1.1
RAF1 form should be properly
signed and witnessed
1.2
Paragraph 6 of the RAF1 should be
properly completed; and
1.3
Complete OAR not included as
mentioned on the RAF1 form paragraph.
2.
It is alleged at paragraph 2 and
3, of the Defendant's second plea notice in terms of rule 28, that
"Section 24(6) of the Act
provides that no claim shall be
enforceable by legal proceeding commenced by a summons served on the
Fund before all requirements
contemplated in section 19(f) have been
complied with."
3.
The Defendant's Special Pleas,
read together with its notice to amend Jack the necessary averments
to sustain this defense
(sic)
in
that:
3.1
The Plaintiff has complied with
the non-compliances raised by the Defendant;
3.2
The Plaintiff has also complied
by served and filed Contents of the Docket including the Officer's
Accident Report;
3.3
Where the Fund or Agent thereof
fails to object to the validity of the claim within 120 days, the
claim shall be deemed to be valid
in all respects.'
Paragraph
1 is in regard to the first special plea while paragraph 2 is with
regard to the second special plea by the defendant.
[35]
On 28 October 2013 defendant served
notices in terms Rule 36(4) and 35(14) calling upon plaintiff to
furnish,
inter alia,
any
medical reports, hospital records, her identity document, police
officer's accident report form and the police docket.
[36]
Plaintiff's attorneys responded on 14
November 2013 by furnishing copies of 'Third Party Claim Form'
presumably a reference to the
RAF1 form and 'Copy of Clinical
records' of Natalspruit Hospital and plaintiff's passport.
[37]
Nowhere in the papers before me is there
an indication that the plaintiff formally furnished the defendant
with the accident report
or the police docket and the date when they
were furnished. However, the documents form part of the 'Supporting
Documents' bundle
on which the date of the cover sheet is 2 May 2018
and it is also stamped by the Registrar of this Court on the same
day. The inference
to be drawn is that these documents were only
provided a week before the trial date of 9 May 2019.
[38]
The hospital records of the plaintiff
from Kopanong Hospital where she was first treated immediately after
the accident are not
in the bundle. Instead, a single page from a J88
Form is in the bundle but it relates to a Kabelo D. Mofokeng, who was
treated
at Kopanong Hospital.
[39]
The RAF1 was unsigned when the claim was
submitted. Only on the morning of the trial did the plaintiff provide
a copy of page 8
of the RAF1 which was now signed by the plaintiff.
[40]
Section 24(4) provides:
'(a) Any
form referred to in this section which is not completed in all its
particulars shall
not be acceptable as a claim under this Act.
(b)
A clear reply shall be given to
each question contained in the form referred to in subsection (1) and
if a question is not applicable,
the words "not applicable"
shall be inserted.
(c)
A form on which ticks, dashes,
deletions and alterations have been made that are not confirmed by
a
signature shall not be regarded as
properly completed.
(d)
Precise details shall be given in
respect of each item under the heading "Compensation claimed"
and shall, where applicable,
be accompanied by supporting vouchers.'
[41]
Section 24(5) provides:
'If the Fund or the agent does not, within
60 days from the date on which
a
claim was sent by registered post or
delivered by hand to the Fund or such agent as contemplated in
subsection (1), object to the
validity thereof, the claim shall be
deemed to be valid in law in all respects.'
[42]
Section 24(6) provides:
'No claim shall be enforceable by legal
proceedings commenced by
a
summons
served on the Fund or an agent
-
(a)
before the expiry of
a
period of 120 days from the date on
which the claim was sent or delivered by hand to the Fund or the
agent as contemplated in subsection
(1); and
(b)
before all requirements
contemplated in section 19(f) have been complied with:
Provided that if the Fund or the agent
repudiates in writing liability for the claim before the expiry of
the said period, the third
party may at any time after such
repudiation serve summons on the Fund or the agent, as the case may
be.
[43]
The end result is that the first special
plea must be upheld. That should be the end of the matter but I will
nevertheless briefly
deal with the second special plea as well
relating to the failure by the plaintiff to provide an affidavit in
terms of section
19(f) of the Act which provides:.
'19. The Fund or an agent shall not be obliged
to compensate any person in terms of section 17 for any loss or
damage-
….
(f) if the third
party refuses or fails-
(i)
to submit to the Fund or such agent,
together with his or her claim form as prescribed or within a
reasonable period thereafter
and if he or she is in a position to do
so, an affidavit in which particulars of the accident that gave rise
to the claim concerned
are fully set out; or
(ii)
to. furnish the Fund or such agent with copies of all statements. and
documents relating to the accident that gave rise to the
claim
concerned, within a reasonable period after having come into
·possession thereof; . . .'
[44]
Plaintiff handed up to the defendant and
the Court on the morning of the trial a purported affidavit in terms
of section 19(f) of
the Act. I say 'purported' for the reasons stated
earlier about the authenticity of the affidavit. In my view, it does
not comply
with the Act. The plaintiff should have provided an
affidavit that complies with section 19(f) read with section 24(6)
before
issuing
summons.
[45]
It is also to be noted that the
vehicle's and the driver's particulars were not furnished on the RAF
1 Form. At paragraph 7 of the
form it was stated 'N/A' no doubt
meaning 'Not Applicable.' And yet it appears that the plaintiff's
attorneys were in possession
of the police accident report in which
the details are provided.
[46]
In
Multilateral
Motor Vehicle Accident Fund v Radebe
[1]
,
Nestadt JA said:
'It is true that the objective of the Act
is
to give the widest possible
protection to third parties. On the other hand, the benefit which the
claim form is designed to give
the fund must be borne in mind and
given effect to. The information contained in the claim form allows
for an assessment of its
liability, including the possible early
investigation of the
case.
In
addition, it also promotes the saving of the
costs
of litigation.
.
..
These various advantages are
important and should not be whittled away. The resources, both in
respect of money and manpower, of
agents and particularly of the fund
are obviously not unlimited. They are not expected to investigate
claims which are inadequately
advanced. There
is
no warrant for casting on them the
additional burden of doing what the regulations require should be
done by the claimant.'
[47]
In
Pithey
v Road Accident Fund
[2]
the Supreme Court of Appeal stated:
'It has been held in
a
long line of cases that the
requirement relating to the submission of the claim form is
peremptory and that the prescribed requirements
concerning the
completeness of the form are directory, meaning that the substantial
compliance with such requirements suffices.'
[48]
The purpose of these provisions is to
enable the Fund to gather all the required information from the
prescribed form to enable
it to assess the validity and quantum of
the claim without casting an extra burden on it to carry out its own
investigations at
significant expense. The form RAF1 was not signed
when it was submitted to the Fund. The Fund was therefore entitled to
object
to the validity of the claim on that ground. If indeed the
form was signed on 4 February 2013 it begs the question, why was it
not submitted as soon as the Fund raised the objection to the
validity of the claim in its letter dated 27 February 2013.
[49]
The claim therefore remains invalid
because of non-compliance with sections 19(f), 24(4) and 24(6) of the
Act. Hence, plaintiffs
claim is not enforceable by summons served on
the Fund prior to having lodged a valid claim.
[50]
As I said, the second special plea is in
the alternative to the first one. Had it been pleaded in addition to
the first one, I would
have upheld both special pleas.
[51]
In the circumstances, the first special
plea is upheld and the plaintiff's claim is dismissed with costs.
RANCHOD J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
: Adv Mlilo
Instructed
by
: MA SELOTAATTORNEYS
C/O
SEKONYA ATTORNEYS
179
Bosman Street
9
th
Floor
Charter House Building
PRETORIA
Counsel
on behalf of
Defendant:
Adv S. M. Ngwane
Instructed
by:
DIALE MOGASHOA ATTORNEYS
Brookfield Office Park
Ground Floor, South Block
Nieuw Muckleneuk
PRETORIA
[1]
1996(2) SA I45 (A) at l52 E - I.
[2]
2014 (4) S A 112
(SCA) at para 19.