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[2018] ZAGPPHC 451
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Mokoena v Road Accident Fund (23310/2015) [2018] ZAGPPHC 451 (28 March 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
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: 23310
I
2015
28/3/2018
In
the matter between:
MOFIHLI
CHRISTOPHER
MOKOENA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
HOLLAND-MUTER
A/J:
[1]
The
plaintiff, a 48 year old unemployed male, was involved in a motor
vehicle collision on 25 February 2009 in President Street,
Bloemfontein. The plaintiff, a pedestrian was in the process of
crossing the said street when the vehicle with registration number
[….] collided with him.
[2]
The
plaintiff suffered bodily injuries as a result of the collision and
lodged a claim for compensation directly at the offices
of the
defendant' s Bloemfontein Office on 27 October 2009. See why he
lodged the claim directly at the Fund below.
[3]
At
the pre-trial between the parties' attorneys on 12 February 2018, the
parties compiled a list of admissions between themselves
for the
determination of the special plea as raised by the defendant. The
list is as follows:
3.1
The accident occurred on 25 February
2009 (asset out in the particulars of claim and above.
3.2
The plaintiff lodged his claim directly
with the Road Accident Fund on 25 October 2009;
3.3
The defendant allocated the plaintiff
with the following serial number to wit
1440894;
3.4
The plaintiff's claim was filed in
timeously with the defendant and there is no prescription in this
regard;
3.5
Summons was issued on 3 I March2015 in
this matter and it was served on the defendant on 13 April 20I 5;
3.6
No legal proceedings had been instituted
against the defendant before in these current proceedings;
3.7
The defendant informed the plaintiff of
its decision to repudiate the claim only through a letter dated 30
September 2014;
3.8
The onus to proof prescription is on the
defendant.
[4]
The
matter to be heard was the special plea of prescription as raised by
the defendant. The parties agreed in the pre-trial conducted
on 12
February 2018 that the question of merits and quantum be postponed
for later determination.
[5]
Neither the plaintiff nor the defendant called any witnesses at the
trial on 2 March
2018 and both counsel argued on the pleadings and
the various court bundles.
[6]
At
the commencement of the trial before me both counsel agreed and
informed myself that the court will only have to decide the extent
of
the defendant's duty of care towards the plaintiff and whether the
plaintiff's claim has become prescribed.
[7]
In
view of the plaintiffs particulars of claim this duty can at best be
de- scribed as that the defendant needs to do the necessary
to assist
the plain tiff in the process of receiving the claim and the
processing thereof. Without going into much detail
of the particulars
of claim, with specific reference to par 8 thereof, is it safe to
summarize the pleadings as follows:
7.1
The
defendant, either expressly or implied, made certain oral
representations towards the plaintiff that the defendant's personnel
would accept such direct lodged claim, investigate the claim and to "
do all things necessary so as to
ensure that the claim would be timeously handled in every procedural
respect and to prosecute the
claim timeously to ensure that the claim
does not become prescribed.
"
7.2
The
defendant denied these allegations but conceded at the commencement
of the trial that there was a legal duty on the defendant,
but
nothing more was forthcoming from counsel on behalf of the defendant
as to what the precise contents of such legal duty entailed.
[8]
The
plaintiff lodged the claim directly at the offices of the defendant
as a result of an ongoing advertising campaign by the defendant
then
to encourage the public in general to lodge claims directly and not
via an attorney's office. This campaign was ongoing over
radio and
television broadcasts as well as in the printed media.
[9]
The
plaintiff avers that, in view of the advertising campaign, he lodged
his completed claim form (RAF-1) with the defendant. See
p 77 in the
plain tiff' s court bundle of notices.
[10]
Although no evidence was adduced by either parties, it can be
accepted that the defendant, represented
to the plaintiff in
particular and the public in general, it will assist in such direct
submitted claims in settling the matters
without external legal
advice. This in my view creates a greater duty of care on the
defendant also to take reasonable steps to
prevent claims prescribing
in its hands. See
J Ralph v RAF ZAGPJHC 94, Case no 2014/03112
par
[15].
"Such
reasonable steps entail but are not limited to positively responding
to the claimant's inquiries, bringing the matter
to finality, but
also advising a claimant of the date when a claim would prescribe".
[11]
When
perusing the RAF-1 form in the bundle, I could not find any
notification thereon to inform the plaintiff of any possible
prescription
date or other deadlines of importance. This is similar
to the
Ralph case
above
where the prescription date was left blank on the form. See [3] in
Ralph's
case.
There was however an inscription that
"It
is your responsibility to notify the RAF 1 month be/ore, should
prescription or lapsing of your claim looming, and seek
legal advice
if necessary at you own costs".
Such
inscription was not made in the matter before this court.
[12]
The
only communications by the defendant to the plaintiff in this matter
was the two letters, the first on 5 March 2010 when forwarding
a
RAF-4 form to the plaintiff without any time line or other
requirements to adhere to or any form of warning about possible
prescription
and secondly the letter of 30 September 2014 informing
the plaintiff that his claim was repudiated due to non-compliance. At
no
stage did the defendant inform the plaintiff of prescription at
all. In my view and in the light of the
Ralph
case
above, the defendant's failure
to in any way assist the plaintiff's direct lodged claim, did not
comply with the necessary care
as required from the defendant.
[13]
The
question is when did prescription start to run against the plaintiff?
Put in a different way, when was the plaintiff deemed
to have the
necessary
knowledge
of
when prescription starts to run. Was it when the accident occurred or
at a later stage when informed by the defendant his claim
was
repudiated ? If the former, then the following becomes important
namely how was the plaintiff informed of possible prescription
of his
claim and what does the legal duty of care comprise of placing
certain obligations on the defendant?
[14]
The
letter addressed to the plaintiff by the Bloemfontein office of the
defendant on 5 March 2010 was to acknowledge receipt of
the plaintiff
s claim and informing the plaintiff of a short coming with regard to
the claim. There is no notification or warning
to forewarn the
plaintiff of any lurking prescription at all. This failure by the
defendant, in view of the system by the defendant
to entertain claims
directly from the public, and not informing direct claimants of the
prescription danger looming in the foreseeable
future, constitutes a
non-compliance of its duty of care by the defendant. The plaintiff
was only informed, to possibly qualify
for general damages, to
complete the annexed RAF-4 form and to inform him and of the required
30% bodily impairment required in
terms of the new act. No further
information or any guidance was given to the plaintiff by the
defendant to possibly alert him
in any way as to time frames as to
filemthe completed RAF-4 etc. The importance of this will be
discussed below. This is also contrary
as to what in the
Ralph-case
supra, the duty of care entails.
[15]
This
was the only communication between the defendant and the plaintiff
during the whole period until the letter from the defendant
on 30
September 2014 informing the plaintiff that his claim was repudiated.
[16]
The
whole aim of the initiative by the defendant to invite direct claims
from plaintiffs could only be to speed up the process and
to curtail
possible legal costs by excluding legal representation of plaintiffs.
[17]
The
reverse side of the coin is that the greater majority of plaintiffs
are from the larger illiterate or semi-literate communities
and in
many in stances from far off rural areas, people needing
assistance to proceed with their claims when lodging their
claims
directly to the Fund.
[18]
The legislation regulating so-called
third party claims (under the Road Accident Fund Act, Act 56 Of 1990
as amended) is by it's
nature, if l may use the general term, not
straight forward. For the majority of possible claimants the
provisions will be a labyrinth
and many claims will become prescribed
or otherwise unenforceable for lack of compliance with the provisions
of the Act. The law
reports are rife with examples of cases where
many cases failed due to the non-compliance with technicalities.
[19]
Prescription of claims arising from
motor vehicle accidents is governed by section 23 of the Act while
section 24 deals with the
procedure to institute a claim. In terms of
section 23(1) a claim shall become prescribed upon the expiry of a
period of three
years from date upon which the cause of action arose.
In terms of section 23(3) a claim lodged in terms of section 17(4)(a)
or
24 shall only prescribe after 5 years from the date on which the
cause of action arose.
[20]
The provisions of section 12(1) of the
Prescription Act, Act 68 of 1969, (hereafter referred to as the '
Prescription Act"),
provides that prescription commence as soon
as the debt is due. Section 12(3) of this act provides that:
"A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and the facts from which
the debt
arises. Provided that a creditor shall be deemed to have such
knowledge if he could acquire it by exercising reasonable
care".
[21]
The
question to answer is when should the plaintiff reasonably have had
the so-called constructive notice that the defendant was
doing
nothing at all and that prescription was imminent ? Th e plaintiff
only obtained actual knowledge when he consulted with
his present
attorney after his claim was repudiated and became prescribed. See
N
D Kekana v Road Accident Fund Case No 57124/2013 GP on 9 November
2013
where, with reference to
Claasen v Bester
2012 (2) SA 404
SCA
at para [15]
it was held that
"if
the applicant had not
appreciated the legal consequences which
flow
from the facts its failure to do so did not delay the running of
prescription ".
[22]
It is therefore a legal conclusion
whether the acknowledged duty of care was breached. The question, in
the absence of any evidence
but for the admissions in the pre-trial
minutes and pleadings , simply put is the following namely whether
the defendant, bearing
the onus, did what was reason ably
expected from it in view of the circumstances , and whether it' s
failure to do anything
further than invite the plaintiff to complete
the RAF-4 form was sufficient ?
[23]
As stated above, nobody testified in
this matter. Only oral arguments were presented. The burden of prove
is on the defendant to
proof (i) that it did comply with it ' s legal
duty of care towards the plaintiff and (ii) that the plaintiffs claim
has became
prescribed.
[24]
lt is further clear that the plaintiff did file his claim form,
except for the RAF-4 form, within the
prescribed three years as
required in section 23(1) of the Act. It often happens that the RAF-4
forms are filed later but that
does not detract from the filing
within the required time in section 23 (1). The claim did not
prescribe at that stage. The plaintiff
had five years from the
accident in terms of section 23 (3) to stop prescription from
extinguishing his claim.
[25]
The plaintiffs claim would only prescribe after 5 years from the
accident occurring, the date then
24 February 2014. Summons was
issued on 31 March 2015 and served on the defendant on 13 April 2015,
well beyond the 5 years as
set out in section 23 (3) of the Act.
[26]
Was the defendant' s breach of it's legal duty of care as set out in
Ralph supra
, (keeping in mind the route embarked upon by the
defendant inviting the public to claim directly from the Fund with
the implied
obligations to ensure that it will assist the direct
claimants to prosecute their claims and implied thereto, to warn
these direct
claimants of pitfalls in the procedure that could
destroy a claimant's claim procedurally), the plaintiffs downfall or
not and
secondly was there any negligence on the part of the
plaintiff not to inquire from time to time from the defendant as to
the pro
cessing of his claim?
LEGAL
DUTY OF CARE:
[27]
The
only facts before me to decide on this aspect are the admissions by
the defendant in the pre-trial minutes and during oral arguments
that
the defendant under the prevailing circumstances had a legal duty of
care to wards the defendant.
[28]
It
is trite that the defendant bears the onus in proving actual or
constructive knowledge on the part of the plaintiff. Considering
the
provisions of section 12(1) of the Prescription Act, "a debt
shall not be deemed due until the creditor has knowledge
of the facts
from which the debt arises, provided that a creditor shall be deemed
to have such knowledge
if he could
acquire it by exercising reasonable care".
(my
emphasis). In the absence of any evidence from both parties I am
bound by the pleadings and the admissions made during the pre-trial.
[29]
Bearing in mind the onus resting on the defendant and with only the
two letters sent to the plaintiff
during the whole period, and in
view of the ratio in the
Ralph case,
I am not convinced that
the defendant did everything reasonably expected from it when dealing
with direct
lodged
claims, by not indicating at any stage to
the plaintiff of the danger of prescription. To just accept the claim
without guiding
the plaintiff in any way as to procedure or pitfalls
in my view amounts to negligence on the part of the defendant. The
defendant
should reasonably advise these claimants when directly
lodging claims at the Fund of the basic procedure and time lines. Im
an
in agreement with the reasoning by Modiba AJ in
AP NDLALA v
ROAD ACCIDENT FUND
unreported under case number 34859/2011on 24
October 2014 in the Gauteng Division, Pretoria.
[30]
The
plaintiff averred in his par 10 of the particulars of claim that
he
did
"enquire from time to
time as to the progress and was advised to exercise patience".
This was denied in the
defendant's plea. No evidence was tendered by the plaintiff and there
is nothing before me to either accept
or reject both parties
averments on this issue. The defendant, burdened with the onus on the
prescription issue, failed to discharged
this onus and must suffer
the consequences.
[31]
It
is ordered that:
1.
The special plea is dismissed with
costs.
J
HOLLAND-MUTER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
FOR
PLAINTIFF:
Adv S S SHONGWE
072
838 8543
FOR
DEFENDANT:
Adv N MASHAWE
076
830 1641