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[2018] ZAECMHC 18
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Mjokovana v Road Accident Fund (3118/2016) [2018] ZAECMHC 18 (28 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO:3118/2016
In
the matter between:
NOMABHASO
MIRRIAM MJOKOVANA
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
DAWOOD,
J:
1.
The
Defendant raised a special plea herein claiming
inter
alia
:
a)
That
the plaintiff was a passenger in a motor vehicle when a collision
occurred on 21 July 2010.
b)
The
Plaintiff had lodged a RAF 1 form with the defendant on 21 January
2011.
c)
In
terms of section 23 (3) of the Road Accident Fund Act the plaintiff
was obliged to serve within 5 years of the date on which
the accident
occurred.
d)
The
plaintiff was accordingly obliged to serve summons on or before the
20 July 2015.
e)
The
plaintiff caused the summons to be issued on the 12 September 2016.
f)
The
plaintiff accordingly failed to serve summons within the prescribed
time.
g)
As a
result of the plaintiff’s failure to comply with the provisions
as prescribed by the RAF Act 56 of 1996 and the regulations,
the
plaintiff claim has prescribed.
2.
The
Plaintiff in her Replication stated the following:
That
she personally entered into an agreement with the Defendant, duly
represented by its legally qualified employees that she would
lodge a
claim for compensation with the defendant and the RAF employees.
(i)
To
fully investigate the merits of the plaintiff claim and the
quantification thereof;
(ii)
To
provide the plaintiff with appropriate legal advice as to the
reasonableness of any offer made by the Defendant and the damages
which she was entitled to and an acceptable settlement of the quantum
of the plaintiff claim;
(iii)
It was
an implied term of the agreement that the defendant’s
representative, its employees, would perform the aforesaid services
in a proper and professional manner and without negligence; and
(iv)
The
defendant’s employees were aware or ought to have been aware:
a)
That
the plaintiff was a lay person with no legal expertise;
b)
That
the plaintiff had no training in the proper quantification of a claim
for personal injury in terms of the specific injury suffered
by her.
c)
The
plaintiff would rely entirely on the advices given to her the
employees of the defendant as to what experts should be consulted
to
obtain proper opinions as to the prognosis of her injuries and its
effect on her earning capacity in the future;
d)
The
plaintiff was unaware of the fact that she was entitled to claim for
loss of earning or loss of earning capacity in the event
that the
sequelae of her injuries impacted on those physical faculties; and
e)
The
defendant owed the plaintiff a duty of care to:
(i)
Fully
and comprehensively advise the plaintiff of the steps to be taken to
quantify her claims;
(ii)
Ensure
the appropriate opinions from qualified experts were obtained to
properly understand the financial implications of the plaintiffs
injuries relevant to future loss of earning and earning capacity;
(iii)
Quantify
the plaintiff claim in accordance with accepted standards and
precedents available; and
(iv)
Ensure
that her claim was not under-quantified and included all headings of
claim.
f)
On the
11 April 2013 and with the knowledge that the plaintiff had no
personal ability to quantify the true value of her claim and
would
rely on the fact that the defendant employees had assisted her
correctly the defendant employees made an offer of settlement
as
follows:
General
damages
R450 000-00
Past
hospital expenses
R227419-40
Future
medical expenses
section 17 (4) certificate.
g)
The
plaintiff acted to her detriment by accepting the offer in full and
final settlement of her claim.
In
accepting the offer the Plaintiff acted to her prejudice as the offer
did not include any amount for future loss of earning capacity.
h)
In the
premises the defendant is estopped from relying on any claim that the
plaintiff’s claim has prescribed in that, had
the defendant not
negligently represented to the plaintiff that her claim had been
properly quantified, the plaintiff would have
rejected the offer and
would have insisted on quantification including future loss of
earnings.
i)
The
defendant’s servants further failed to issue any summons on
behalf of the plaintiff on or before the 20 July 2015 and
failed to
advise the Plaintiff that if no summons was issued by that date her
claim for future loss of earning would prescribe.
j)
By
reason of the aforesaid representation that her claim had been
properly quantified without the issue of any summons, which was
relied upon by the plaintiff to her prejudice, the RAF is estopped
from relying on its own ommissions to avoid the claim.
k)
Wherefore
the plaintiff prayed for the dismissal of the defendant special
plea”.
3.
The
matter came before me as a stated case in order to determine the
special pela of prescription:
a)
The
defendant case is that the plaintiff’s claim has prescribed
having regard to the 5 year period provided for in the Act
b)
The
further defence is that the plaintiff claim is based on the
Defendant’s Statutory obligations in terms of section 17 of
the
RAF Act and not as it ought to be on a breach of contract.
c)
The
plaintiff in her replication sought to introduce a new cause of
action based on breach of contract estoppel and the Prescription
Act.
The Plaintiff’s cause of action however in her particulars of
claim is based on section 17 of the RAF Act which has
statutory
prescribed periods which the defendant alleges supersedes the
Prescription Act.
d)
I
accept that the replication to a large extent relies on the
obligations of the employees of the fund and seems to be based on
an
agreement and their failure to comply with their obligations in terms
of the agreement which is not what the plaintiff claim
is based on
the plaintiff’s cause of action in its particulars of claim
clearly is based on section 17 of the Road Accident
Fund Act.
4.
The
plaintiff has accordingly not sued the fund on the basis of breach of
contract but rather has elected to pursue her claim in
terms of
section 17 for future loss of earning or earning capacity.
5.
The
Defendant’s argument does have merit that the plaintiff cause
of action in the particulars is not based on a breach of
contract and
accordingly the concepts of misrepresentation and estoppel are not
applicable, despite it being raised in her replication.
6.
The
plaintiff however clearly was unaware of what her actual entitlement
was in respect of the separate heads.
7.
She
would not be aware of the consequences of the responses made or that
she needed to give further information on some of the responses
unless she was specifically questioned in respect thereof.
8.
This
is not a case where the plaintiff was unhappy with the amount offered
yet settled for it but she seems to have believed that
it was a
proper offer at the time.
9.
However
since the plaintiff’s cause of action in her particulars of
claim is not based on breach of contract but on the Act
the question
of misrepresentation or estoppel cannot be raised at replication
stage but that ought to have been the cause of action
instituted
against the defendant if reliance was to be placed on it.
10.
I now
turn to the argument of whether or not the Prescription Act is
applicable or not.
“
a)
Section 14
of the
Prescription Act 69 of 1969
reads as follows:-
14
Interruption of prescription by acknowledgment of liability.
(i)
The
running of prescription shall be interrupted by an express or tacit
acknowledgment of liability by the debtor.
(ii)
If
the running of prescription is interrupted as contemplated in ss (1),
prescription shall commence to run afresh from the day
on which the
interruption takes place or, if at the time of the interruption or
any time thereafter the parties postpone the due
date of the debt,
from the date upon which the debt again became due.”
b)
In
Road
Accident Fund v Mothupi
[1]
Nienaber JA stated as follows:
“
In
the first place an acknowledgment of liability for the purposes of
section 14
of the
Prescription Act is
a matter of fact. Thus it was
stated in Agnew v Union and South West Africa Insurance Co. Ltd
1977
(1) SA 617
(A) at 623 A – B.
“
Of
daar in ’n bepaalde geval ’n erkenning van
aanspreeklikheid was, is ’n feitlike vraag wat betrekking het
op
die bedoeling van die persoon wat as skuldenaar aangespreek is. In
die verband het Broome RP die volgende gese in Petzer v Radford
(Pty)
Ltd
1953 (4) SA 314
(N) op 317 en 318:
“
to
interrupt prescription an acknowledgement by the debtor must amount
to an admission that the debt is in existence and that he
is liable
therefore.”
c)
In
Road
Accident Fund v Smith NO
[2]
it was held that the relevant provisions of the
Prescription Act to
the extent that they are not otherwise incompatible with the Act,
apply to claims processed under it.
d)
In
this case there has factually been an acknowledgment of liability,
and an actual payment made, unlike
Mothupi’s
case where the court did not hold that the
Prescription Act was
not
applicable but that the factual basis for its applicability had not
been established.
e)
Section
14
(1) of the
Prescription Act is
accordingly applicable and applies
to the RAF Act as well.
f)
The 5
year prescription was accordingly as argued by the Plaintiff
interrupted on the 11 April 2013 and the claim accordingly has
not
prescribed.
g)
The
argument by the defendant that the plaintiff cannot rely upon the
Prescription Act is
accordingly ill-conceived having regard to the
authorities referred to by the plaintiff in its heads of argument nor
did they furnish
any authorities in support of this contention.
h)
The
plaintiff has accordingly established that in this case prescription
has indeed been interrupted by the offer that was made
and accepted.
i)
The
issue of whether or not it was in full and final settlement and
whether or not she is entitled to still claim are separate issues
that were not part of the defence raised.
j)
The
Defendant had accepted liability and such factual acknowledgment
interrupted prescription.
11.
The
point
in
limine
in respect of prescription, accordingly falls to be dismissed for the
reason set out above.
12.
I
accordingly make the following order:
a)
The
Special Plea of Prescription is dismissed with costs.
__________________________
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD:
23 FEBRUARY 2018
JUDGMENT
DELIVERED:
28 MARCH 2018
FOR
THE PLAINTIFF:
Mr COLE
PLAINTIFF’S
ATTORNEYS:
MJULELWA INC ATTORNEY
OFFICE
NO 207A, 2
ND
FLOOR
METROPLITAN
PLACE
MTHATH
FOR
THE DEFENDANT:
MR
MALUNGA
DEFENDANT’S
ATTORNEYS:
SMITH
TABATA ATTORNEY
34 STANDFORD TERRACE
MTHATHA
[1]
2000 (4) SA 38
at paragraph 37
[2]
1999 (1) SA 92
SCA at 98 F – G