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[2008] ZASCA 3
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Nonkwali v Road Accident Fund (105/2007) [2008] ZASCA 3; [2008] 2 All SA 503 (SCA); 2009 (4) SA 333 (SCA) (6 March 2008)
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IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Reportable
Case no: 105/2007
In
the matter between:
BULELWA
NONKWALI
.........................
Appellant
and
ROAD
ACCIDENT FUND
...............................
Respondent
CORAM:
STREICHER, VAN HEERDEN et MAYA JJA
HEARD:
21 FEBRUARY 2008
DELIVERED:
6 MARCH 2008
Summary: Claim in terms of
s 17
of the
Road
Accident Fund Act 56 of 1996
– no new claim form required in
terms of
s 24
in respect of additional injury discovered after
institution of action – claim in respect of subsequently
discovered injury
not introducing new cause of action.
Neutral Citation: This judgment may be referred
to as
Nonkwali v Road Accident
Fund
(105/2007)
[2008] ZASCA 3
(06 March 2008).
JUDGMENT
MAYA JA/
MAYA JA:
[1] At about 16h00 on 16 October 2001
a motor vehicle in which the appellant was being conveyed as a
passenger was involved in a
collision as a result of which she
sustained serious bodily injuries. She instituted an action for
damages arising out of the accident
in terms of
s 17(1)
of the Road
Accident Fund Act 56 of 1996 (the Act)
1
in the Mthatha High Court which the
respondent duly defended.
[2] Almost four years after the
collision, on 10 June 2005, the appellant amended her pleadings,
without objection, to include a
claim for damages suffered consequent
upon a head injury allegedly sustained in the accident. The head
injury was not previously
listed among the injuries detailed in her
claim form and accompanying medical report lodged with the respondent
in terms of s 24
of the Act as it was discovered only subsequently.
The respondent filed a special plea alleging that, in respect of the
head injury,
the claim form did not comply with the provisions of s
24 for failure to specify such injury. In the alternative, the
special plea
averred that such claim was prescribed in terms of s 23
of the Act
2
in that it was instituted more than
three years after the accident.
[3] At the trial the parties agreed
that the court below should first determine the validity of the
issues raised in the special
plea. The court (Ndzondo AJ) upheld the
special plea on the main ground, on the basis that the appellant was
obliged to first submit
to the respondent a duly amended claim form
specifying the head injury before amending her pleadings so as to
enable the respondent
to investigate whether or not the head injury
was sustained in the accident. The court went further and held that
even if it had
decided the latter question in the appellant’s
favour, such a claim would nonetheless be unenforceable by reason of
prescription.
The appellant challenges the decision with the leave of
the court below and the issues before us remain unchanged.
[4] The relevant provisions of s 24
of the Act read:
‘
Procedure
(1)
A claim for
compensation and accompanying medical report under section 17(1)
shall –
(a) be set out in the prescribed form, which shall be completed in
all its particulars;
(b) be sent by registered post or delivered by hand to the Fund at
its principal, branch or regional office, or to the agent who
in
terms of section 8 must handle the claim, at the agent’s
registered office or local branch office, and the Fund or such
agent
shall at the time of delivery by hand acknowledge receipt thereof and
the date of such receipt in writing.
(2) (a) The medical report shall be completed on the prescribed form
by the medical practitioner who treated the deceased or injured
person for the bodily injuries sustained in the accident from which
the claim arises, or by the superintendent (or his or her
representative) of the hospital where the deceased or injured person
was treated for such bodily injuries: Provided that, if the
medical
practitioner or superintendent (or his or her representative)
concerned fails to complete the medical report on request
within a
reasonable time and it appears that as a result of the passage of
time the claim concerned may become prescribed, the
medical report
may be completed by another medical practitioner who has fully
satisfied himself or herself regarding the cause
of death or the
nature and treatment of the bodily injuries in respect of which the
claim is made.’
[5] It was submitted on the
appellant’s behalf that she substantially complied with the
relevant provisions as she completed
the claim form in good faith and
filled in all such details as were available to her at the time.
Counsel for the appellant further
contended that the additional claim
did not introduce a new cause of action but was merely a new item of
damages such that it was
not necessary to amend her claim form to
avoid prescription.
[6] It was contended on the
respondent’s behalf, on the other hand, that the provisions of
s 24 obliged the appellant to submit
a claim form, including a
medical report duly completed by a medical practitioner, in respect
of the head injury. Her failure to
do so was fatal as it meant that
no claim had been lodged in respect of this injury, so continued the
argument.
[7] I cannot agree with the
respondent’s submissions. The reasons are simple. It was not in
issue in the court below that
the head injury had not been diagnosed
when the claim form was completed and submitted to the respondent. No
allegation at all
was made in the special plea that the injury was
known at the material time and the case clearly proceeded on the
basis that the
injury was discovered in subsequent medical
examinations. It was further not in dispute that the appellant placed
all the relevant
facts available to her at the time at the
respondent’s disposal. That being so, there is no basis
whatsoever on which it
could be found that the appellant did not
comply, not just substantially as argued on her behalf, but fully
with the provisions
of s 24 of the Act.
[8] The alternative argument relating
to prescription can, in my view, also be given short shrift.
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
3
had but a single, indivisible cause
of action
4
and that the various items
constituting the claim were thus not separate claims or separate
causes of action.
5
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.
[9] The effect of this finding cannot
be articulated better than Corbett JA did in
Evins
v Shield Insurance Co Ltd
.
6
There,
the
court dealing with the concept of a single cause of action in the
context of prescription with regard to the amendment of a
plaintiff’s
claim as originally pleaded by him, said:
‘
Where the plaintiff seeks by way of
amendment to augment his claim for damages, he will be precluded from
doing so by prescription
if the new claim is based upon a new cause
of action and the relevant prescriptive period has run, but not if it
was part and parcel
of the original cause of action and merely
represents a fresh quantification of the original claim
or
the addition of a further item of damages
.’
(Emphasis added.)
[10] In the event, the claim for
damages relating to the appellant’s head injury did not
constitute a new cause of action
but was merely an additional item to
her original cause of action. The appellant’s amendment to her
summons did, therefore,
interrupt the running of prescription in
respect of the further claim. It was thus not necessary for her to
lodge an amended claim
form.
7
[11] Accordingly, the appeal is
upheld with costs. The order of the court below upholding the special
plea is set aside and substituted
with an order dismissing the
special plea with costs.
____________________
MML MAYA
JUDGE OF APPEAL
CONCUR:
STREICHER JA
VAN HEERDEN JA
1
Section
17 of the Act confers on a third party a claim against the Road
Accident Fund for any loss or damage suffered by him or
her as a
result of any bodily injury to himself or herself arising from the
driving of a motor vehicle if the injury is due to
the negligence or
other wrongful act of the driver or owner of the motor vehicle.
2
Section
23 of the Act provides:
‘(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) …
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 24 shall prescribe before the expiry of
a period of
five years from the date on which the cause of action arose.’
3
The
Motor Vehicle Insurance Act 29 of 1942 and the Compulsory Motor
Vehicle Insurance Act 56 of 1972.
4
In
Evins v Shield Insurance Co Ltd
1980
(2) SA 814
(A) the court, discussing the proper legal meaning of the
expression ‘cause of action’ in the context of an action
for damages for bodily injury, said at 838H-839A: ‘[T]he basic
ingredients of the plaintiff’s cause of action are
(a) a
wrongful act by the defendant causing bodily injury, (b) accompanied
by fault, in the sense of
culpa
or
dolus
,
on the part of the defendant, and (c)
damnum
,
ie loss to plaintiff’s patrimony, caused by the bodily injury.
The material facts which must be proved in order to enable
the
plaintiff to sue (or
facta probanda
)
would relate to these three basic ingredients and upon the
concurrence of these facts the cause of action arises.’
5
See,
for example,
Lampert-Zakiewicz v Marine &
Trade Insurance Co Ltd
1975 (4) SA 597
(C) at 601D-E;
Schnellen v Rondalia
Assurance Corporation of SA Ltd
1969
(1) SA 517
(W) at 520H-521F.
6
1980
(2) SA 814
(A) at 836C-E.
7
See
Boti v Unie en Nasionale
Versekeringsmaatskappy, Bpk
1968 (4)
SA 567
(O).