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[2018] ZAGPPHC 449
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Buthelezi v Road Accident Fund (87223/14) [2018] ZAGPPHC 449 (2 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:2/2/2018
CASE
NO: 87223/14
In
the matter between:
NKWATISENG
MELITA
BUTHELEZI
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MOSOPA,AJ
[1]
The plaintiff Ms Nkwatiseng Melita Buthelezi an adult female person
born on the 01
st
April 1951 was involved in a motor
vehicle collision which occurred on or about the 31
st
January 2005 and she suffered bodily injuries.
[2]
At
the time of the aforesaid collision the plaintiff was a passenger in
the motor vehicle bearing registration numb
er
[….] driven by S.S NKABINDE which collided with the motor
vehicle bearing registration number [….] driven by A.M
GRUNDLIGH.
[3]
The
plaintiff alleges in her particulars of claim that the driver of the
Second Insured motor vehicle was the sole cause of the
collision in
that;
3.1.
He failed to keep a proper look out;
3.2.
He travelled at a speed which was
excessive under the circumstances;
3.3.
He failed to exercise proper control
over the Insured vehicle;
3.4.
He failed to apply brakes of the second
Insured vehicle timeously, adequately and/or at all.
3.5.
He failed to take any and/or adequate
action and/or steps to avoid·the collision, when by the
exercise of reasonable care,
he could and should have done so;
3.6.
He failed to keep the second Insured
vehicle under proper control.
3.7.
He failed to give any/or adequate
warning of his approach;
3.8.
He came to a sudden and abrupt stop
without giving and and/or adequate prior notice and/or warning of his
intention to do so, and
3.9.
He changed his lane of travel at
dangerous and/or inopportune moment without due regard to the
presence and safety of other road
users and none specifically the
First Insured Vehicle in which the Plaintiff was a passenger.
[4]
The Defendant in its plea raised a
special plea wherein the following was recorded;
4.1.
The Plaintiff's claim arises from a
motor vehicle which occurred on 31 January 2005.
4.2.
Summons was served on the Defendant on
8
th
April 2015
4.3.
As
such, the Defendant pleads that a period of more than 5 (five) years
has lapsed from the date on which the claim arose before
the summons
was served on the Defendant.
[5]
The
parties agreed to deal first with the special plea raised by the
Defendant and if the Plaintiff is successful on issues relating
to
the special plea then the matter be postponed
sine
die
, for determination of issues
relating to the merits and quantum.
COMMON
CAUSE FACTS
[6]
The following facts
are common cause
in
casu;
5.1.
The motor collision giving rise to the Plaintiffs claim for damages
occurred on the 31st day of January 2005;
[7]
The
Plaintiffs claim was a limited claim under
section
18 (1) and (2) of the Road Accident Fund Act 56 of 1996
(
"The Old Act") before the Old Act was amended by the
Road
Accident Fund Act 19 of 2005
which
amendment came into effect on the 18
th
day of August 2008.
[8]
To avoid prescription in terms of the Old Act the Plaintiff had to
lodge her claim
with the Defendant on or before the 30th day of
January 2008 and serve summons on the Defendant on or before the 30th
day of January
2010.
[9]
The Plaintiff lodged her claim against the Defendant on the 29
th
October 2007. The Plaintiff issued summons against the Defendant in
the Pretoria Magistrate Court under case number: 72/2009 on
the 5
th
January 2009. The summons was eventually served on the Defendant on
the 6
th
January 2009.
[10]
Section
18 (1) (a) (i) ; 18 (1) (b) and 18 (20) of the Old Act
which
limited the Plaintiffs' claim for damages was declared
unconstitutional and invalid by the constitutional court on the 17th
February 2011 in the case of
Mvumvu
and Others v Minister of Transport and Another 2011 (2) SA 473.
[11]
The
declaration of the invalidity was suspended for a period of eighteen
(18) months to allow Parliament to remedy the unconstitutionality
of
the impugned provisions.
[12]
Parliament
eventually remedied the impugned provisions by passing the
Road
Accident Fund (Transitional Provision) Act 15 of 2012 (The
"Transitional Act'')
which came
into effect on the 13
th
February 2013.
[13]
The
Plaintiff's claim is governed by the provisions of the Transitional
Act.
[14]
The
Plaintiff issued summons against the Defendant in the High Court on
the 8
th
December 2014. Summons was served on the Defendant on the 8
th
April 2015.
[15]
The
Plaintiff withdrew summons issued against the Defendant in the
Pretoria Magistrates' court on the 5th January 2016 while the
matter
was pending in the High Court.
ISSUES
TO DECIDE
[16]
The
only issue to decide is whether the Plaintiffs' claim against the
Defendant has prescribed for non-compliance with the Transitional
Act.
LEGISLATIVE
FRAMEWORK
[17]
Section
2 (1) of the Transitional Act
provides
that:
"Unless
the third party expressly and unconditionally indicates to the Funds
on the prescribed form, within one year of the
Act taking effect, to
have his or her claim remain subject to the Old Act, the claim of
such third party is subject to the new
Act under the following
transitional regime;
(a)
(b)
The
right of the third party to claim compensation for non pecuniary
loss is limited to a maximum of R25, 000, unless
-
(i)
the
third party submits a serious injury assessment
report
as contemplated in Regulation 3 of the Road Accident Fund Regulation
2008, indicating a serious injury, within two years
of this Act
taking effect; and
(ii)
it
is determined in accordance with Regulation 3 of the Road Accident
Fund Regulations, 2008, that the third party suffered a serious
injury.
(c)
(d)
(e)
A third party who has, prior to this
Act coming into operation
-
(i)
(ii)
instituted on action against the Fund in a Magistrate 's court may
withdraw the action
and, within 60 days of such a withdrawal,
institute an action in a High Court with appropriate jurisdiction
over the matter: Provided
that no special plea in respect of
prescription may be raised during that period.
18.
The "third party" in the Transitional Act is defined as a
person who has a right to
claim compensation from the Fund (Road
Accident Fund) in terms of
section 17 of the Old Act
whose
claim is subject to the limitations imposed by
section 18 (1) or
(2) of that Act,
and whose claim has upon this Act taking effect,
not prescribed or been finally determined by settlement or judgment.
18.1
It can be safely assumed that any reference to the "third party"
in the Transitional Act refers
to the Plaintiff in this matter.
PRESCRIPTION
[19]
The Plaintiff's claim at the time of the Transitional Act taking
effect on the 13
th
February 2013 was still in the Pretoria
Magistrate's court as the withdrawal of the action was only done by
the Plaintiff on the
5
th
January 2016 after the Plaintiff
was so advised by the Defendant's attorneys by means of a letter. As
such the Plaintiff's claim
was at that stage not yet prescribed.
[20]
It also appears that when the withdrawal of the matter was done at
the Pretoria Magistrate's
court the matter was not yet settled or
judgment made in the matter. Thus as a consequence the matter falls
squarely within the
ambit of Transitional Act.
[21]
The Defendant's argument relating to a special plea of prescription
raised is two pronged;
21.1.
Firstly that the Plaintiff issued
summons outside the l(one) year period as provided by section 2 (1)
of the Transitional Ac.t as
the Plaintiff was supposed to have issued
summons on or before 12
th
February 2014;
21.2.
Secondly that the
Transitional Act requires the Plaintiff to first withdraw the action
in the event it was first issued in the Magistrates'
court within the
appropriate jurisdiction and then issue summons in the High Court
with the necessary jurisdiction.
[22]
On
the other hand Mr Shongwe on behalf of the Plaintiff argued that the
Transitional Act does not make provisions as to when one
must
withdraw the action. He further contended that by issuing summons in
the High Court without firstly withdrawing the action
in the
magistrate's court does not amount to an irregularity and based his
argument on an unreported judgment of Manamela AJ in
the matter of
Klaas v Road Accident Fund case
number 25693/2013
in the Pretoria
High Court. The Plaintiff in the Klaas matter issued summons in the
magistrate's court and while the matter was
still pending in the
magistrate's court issued summons in the High Court on the 30
th
April 2013. The Plaintiff in that matter withdrew the Magistrates'
court summons on the 28
th
May 2014.
[23]
A
distinction ought to be made between the current matter and the Klaas
matter. Summons in the Klaas matter was issued i.e. in the
High Court
on the 30th April 2013 and that is within the period of a year from
the time the Transitional Act took effect. In the
current matter
summons was issued on the 8th December 2014 which is outside the
period of one year of the Transitional Act taking
effect.
[24]
As
already indicated section 2 (1) of the Transitional Act requires a
third party to express and unconditionally indicate to the
Fund
within one year of the Act taking effect whether he/she wants his/her
claim to remain with the Old Act or not, failing which
his/her claim
will automatically be subject to the Transitional Act. In the current
matter the Plaintiff failed to express and
unconditionally indicate
to the Fund what are her wishes meaning that her_ claim automatically
became the subject of the Transitional
Act. As a consequence section
2 (1) gives the Third parties option to choose whether their claim
should be dealt with in terms
of the Road Accident Fund Act or in
terms of the Transitional Act, subject to the Amendment Act.
[25]
Section
2 (1) spells out the duration of operation of the Transitional Act
which provides for a period of one year. The Act came
into effect on
the 13th February 2013 and ceased to operate by midnight on the 12
th
February 2014. Meaning that the plaintiff should have issued her
summons against the Defendant on or before the 12
th
February 2014. The Plaintiff failed to comply with the provisions of
section 2 (1) of the Transitional Act. I cannot agree with
Mr
Shongwe's contention that the Act does not provide as to when the
action can be withdrawn in the Magistrate's court.
[26]
Furthermore
section 2 (1) (e) (ii)
of
the Transitional Act provides that, a third party who has prior, to
the Transitional Act coming into operation has instituted
an action
against the Fund in a Magistrate's court may withdraw the action and
within 60 days of such withdrawal institute an action
in a High court
with appropriate jurisdiction provided that no special plea of
prescription may be raised during that period. In
the current matter
the Plaintiff did not comply with the provisions of the Act, a point
which was correctly conceded to by Mr Shongwe
on behalf of the
Plaintiff. The Act makes provision for the action to be first
withdrawn in the Magistrate's court and subsequent
to that summons be
issued in the High Court. The Plaintiff instituted summons in the
High Court while the Plaintiff's claim was
still pending in the
Magistrate's court. It must be further noted that the section uses
the word "may" which means that
the third party is not
compelled to withdraw the action, but may only withdraw the action in
the Magistrate's court if he/she has
the intention of instituting the
action in the High Court
[27]
Manamela AJ in the Klaas matter opined as follows; Therefore; when
this approach is taken, it can never
serve the purpose of the TPA
that a claim validly instituted in the magistrates' court can be
extinguished by a somewhat inadvertent
issuing of new summons in the
High Court and the withdrawal of summons. That would be a far cry
from purposive interpretation of
legislative provisions. The
Plaintiff may have not followed the language and form contemplated in
TPA, but has purported to achieve
the purpose of the TPA. The steps
may have been muddled up and even confused, but at the end of the
Plaintiff aims to pursue action
initially issued in the magistrates'
court in this court. This is what was intended by the TPA and cannot
be denied by a methodical
interpretation of the provisions of the TPA
to bring about equality to the claimants who had their claims
previously limited by
the unconstitutional statutory provision."
[28]
I am in full agreement with the above passage and the Plaintiff
cannot be punished based on the oversight
of her attorneys as a valid
claim was already instituted in the Magistrates' court. However as
already indicated the facts of the
current matter are not the same as
that of Klaas and a distinction of the two ought to be made. I am
therefore in agreement with
Mr Knoetze on behalf of the Defendant
that the Plaintiff's claim against the Fund has prescribed.
[29]
Moreover the date of the motor collision
is recorded as the 31
st
January 2005 and the summons in this court was issued on the 08th
December 2014 and the period of more than 5 (five) years has
elapsed
from the date on which the claim arose before the summons was served
on the Defendant.
[30]
I therefore, make the following order,
1.
The Defendants' special plea is hereby
upheld with costs;
2.
The Plaintiff's claim is hereby
dismissed with costs.
M.J.MOSOPA
ACTING
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
For
the Plaintiff:
Mr. S.S. Shongwe
Instructed
by:
Rontgen & Rontgen Inc
For
the Defendant:
Adv Knoetze
Instructed
by:
Diale Mogashoa Inc
Date
of Judgment:
02 February 2018