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[2016] ZAGPPHC 320
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Xaba v Road Accident Fund (A844/2014) [2016] ZAGPPHC 320 (13 May 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
APPEAL
NO: A844/2014
CASE
NO: 29728/2004
DATE:
13/5/2016
Not
reportable
Not of
interest to other judges
Revised.
IN THE MATTER BETWEEN
THEMBENI JOYCE
XABA APPELLANT
AND
ROAD ACCIDENT
FUND RESPONDENT
JUDGMENT
PRINSLOO, J
[1] This is an appeal against a judgment of 30 July 2013, by the
learned Judge
a quo
, Mashile J, when he upheld a
special plea of prescription by the respondent, as defendant
a quo
,
and dismissed the appellant's claim (as plaintiff
a quo
,
litigating in her capacity as
curator ad litem
of her husband,
Sipho Amos Nkosi, to whom I will refer as "Nkosi").
[2] On 17 September 2014, the learned Judge granted leave to appeal
to the Full Court of this Division.
[3] In the appeal which came before us, Mr K M Röntgen Snr
appeared for the appellant, and Ms K Kollapen appeared for the
respondent.
BRIEF SYNOPSIS OF THE CASE
[4] On 30 January 1997 Nkosi was the driver of a motor vehicle when
it came in collision with another motor vehicle in the Germiston
district in Vosloorus Street.
[5] On 22 January 2002, almost five years after the collision, Mr
Röntgen was appointed as
curator ad litem
for Nkosi by
the magistrates' court in Brakpan.
[6] Paragraph 1 of the magistrate's order reads as follows:
"1. Appointing Conrad Martin Röntgen (Snr) as
Curator ad
litem
for and on behalf of Sipho Amos Nkosi (ID …) and
granting to the applicant the necessary authority to lodge a claim on
behalf
of the said S A Nkosi against the Road Accident Fund
and to do all things necessary to prosecute such claim to its final
determination and to settle same."
[7] In November 2004, almost thee years later, a summons was issued,
with Mr Röntgen in his representative capacity as the
plaintiff
and the Road Accident Fund as the defendant. The summons was
issued, purportedly, in terms of the provisions of
the Road Accident
Fund Act, no 56 of 1996 ("the New Act").
[8] The New Act only came into operation on 1 May 1997, some three
months after the collision occurred.
[9] Before us, it was common cause that the action should have been
instituted in terms of the provisions of the Multilateral Motor
Vehicle Accidents Fund Act no 93 of 1989 ("the Old Act").
[10] For the sake of detail, I add that section 2(2)(a) of the New
Act provides:
"Subject to section 28(1) the Multilateral Motor Vehicle
Accidents Fund established by the Agreement concluded between the
Contracting Parties on 14 February 1989, shall cease to exist,
and all money credited to that fund immediately before the
commencement of this Act shall vest in the Fund, all assets,
liabilities, rights and obligations, existing as well as accruing,
of the first-mentioned fund shall devolve upon the Fund, and any
reference in any law or document to the said Multilateral Motor
Vehicle Accidents Fund shall, unless clearly inappropriate, be
construed as a reference to the Fund."
Section
28(1) of the New Act provides:
"Notwithstanding section 2(2), this Act shall not apply in
relation to a claim for compensation in respect of which the
occurrence
concerned took place prior to the commencement of this Act
in terms of the law repealed by section 27, and any such claim shall
be dealt with as if this Act had not been passed."
The Old Act was repealed in terms of Part I of the Schedule to the
New Act.
[11] In view of the aforegoing, it follows, as already mentioned,
that this action, although purportedly instituted in terms of
the New
Act, fell to be governed by the provisions of the Old Act.
For
present purposes, nothing turns on this, in view of the fact that the
parties agreed accordingly, as I have mentioned.
[12] On 22 March 2002, the attorneys acting for Nkosi lodged the
prescribed MMF claim forms with the respondent.
Ex facie
the documents, they were accepted and stamped by the respondent.
This was more than five years after the collision occurred.
There are indications, amongst the papers, that a claim form may also
have been lodged in November 2001, almost five years after
the event,
but it appears to be generally recognised that the forms were lodged
on 22 March 2002. This is probably correct,
because it
happened shortly after Mr Röntgen's appointment as curator two
months earlier. The November date was before
Mr Röntgen's
appointment. For present purposes, nothing turns on this.
[13] In August 2004, not long before the November 2004 summons, Nkosi
was examined by a neuro-surgeon, Dr Earle, presumably
for
medico-legal purposes to support the damages action against the
respondent, and, perhaps, for purposes of the application for
the
appointment of the
curator ad litem
.
[14] For reasons which will become apparent, it is necessary to make
a few remarks about the appointment of the
curator ad litem
by
the Brakpan magistrates' court.
No report by Dr Earle was included in the record which came before
us, neither were the papers relating to the application for
the
curator's appointment. I add that, in August 2007, the
appellant before us, Ms Xaba, the wife of Nkosi, was
appointed
as
curator ad litem
by the Brakpan magistrate who, at the same
time, discharged Mr Röntgen of his corresponding duties.
At the same
time Ms Xaba was substituted as the plaintiff,
presently the appellant.
[15]
Section 33
of the
Magistrates' Courts Act, 32 of 1944
, simply
provides: "the court may appoint a
curator
ad litem
in any case in which such a curator is required or allowed by law for
a party to any proceeding brought or to be brought before
the court".
In Van Loggerenberg,
The Civil Practice of the Magistrates' Courts
in South Africa
, 10
th
ed, vol 2 page 5 42,
the following is said:
"A person who has been declared by a competent court to be of
unsound mind, or to be incapable for some reason of managing
his own
affairs, cannot sue or be sued without the assistance of a
curator
ad litem
. If no
curator ad litem
has previously been
appointed to him, or if a curator who has been appointed has not the
power to bring or defend legal proceedings,
application should be
made for such appointment, or for the grant of the necessary powers.
Section 33
of the
Magistrates' Courts Act empowers
the magistrates'
courts to appoint a
curator ad litem
to a person in any case
in which such a curator is required or allowed by law.
This section must, however, be read subject to
section 46(2)(b)
(
my
note
: it reads:
'(2) A court shall have no jurisdiction in matters –
(a) ...
(b) in which the status of a person in respect of mental capacity is
sought to be affected')
which provides that magistrates' courts have no jurisdiction in
matters affecting status. It follows that where, in order
to
have a
curator ad litem
appointed to a person, it is necessary
first to have such person declared to be of unsound mind, the
magistrates' courts have no
jurisdiction. Application for the
appointment of the
curator
, or at any rate for a declaration
that such person is of unsound mind, must be made in the High Court.
Thereafter action
may be instituted against him in the magistrates'
courts ..."
[16] In the November 2004 summons, featuring Mr Röntgen, in his
representative capacity as plaintiff, and the Road Accident
Fund as
defendant, it is alleged that as a result of the collision to which I
have referred, the plaintiff (
sic
) sustained the following
bodily injuries: a fracture of the right femur and "concussion".
It is also alleged that as a result of the injuries the plaintiff
(
sic
) received medical treatment, experienced pain and will do
so in future, will in future have to undergo further treatment, was
unable
to work and "will in future be unable to work for certain
periods of time".
There is no reference to mental incapacity.
[17] The respondent, as defendant, offered a series of special pleas,
which were not presented for consideration before us, except
for the
special plea of prescription forming the subject of these
proceedings.
[18] In this special plea, which was upheld by the learned Judge
a
quo
, it was pleaded:
• the Old Act is applicable;
• in terms of the regulations promulgated by virtue of section 6
of the Old Act, the plaintiff, to avoid prescription, had
to deliver
the claim form to the MMF within two years from the date upon which
the claim arose and had to serve summons on the
MMF within five years
from the date on which the claim arose;
• these time-limits apply to cases, such as the present, where
the plaintiff alleged that the collision involving Nkosi was
caused
by the negligence of the driver of a so called "unidentified
vehicle" where the identity of neither the driver
nor the owner
thereof could be established. These time-limits are prescribed
in regulation 3;
• where the collision occurred on 30 January 1997, the claim was
lodged on 22 March 2002 (more than five years after
the event)
and the summons served after November 2004 (more than seven years
after the event) the claim had become prescribed.
[19] No replication was filed to this special plea of prescription.
[20] I turn to the question of prescription.
HAS THE CLAIM BECOME PRESCRIBED?
[21] Regulation 3, published in terms of section 6 of the Old Act,
deals, as I have mentioned, with claims involving unidentified
motor
vehicles, such as the one under discussion.
[22] Regulation 3(2)(a) reads as follows:
"(2) The liability of the MMF in respect of claims which arise
in terms of this regulation shall be subject to the following
further
conditions:
(a)(i) a claim for compensation for loss or damage suffered by the
claimant shall be delivered to the MMF within two years from
the date
upon which the claim arose
mutatis mutandis
in accordance with
the provisions of Article 62 of the Agreement (
my note
: this
deals with the procedure required to launch a claim for compensation
not involving unidentified vehicles and prescribing
the forms,
matters relating to medical reports and so on);
(ii)
the provisions of subparagraph (i) shall also apply to all
third parties and claimants, irrespective of whether they are subject
to any legal disability.
" (Emphasis added.)
[23] In
Moloi and Others v Road Accident Fund
[2000] ZASCA 144
;
2001 3 SA 546
(SCA), claims on behalf of three minor children injured in the
collision with an unidentified motor vehicle negligently driven
by an
unknown person, came up for consideration. It was a claim in
terms of the Old Act.
[24] The defendant filed a special plea of prescription, relying on
the provisions of regulation 3(2)(a) to which I have referred.
[25] The appeal was against the decision by the court
a quo
to
uphold a special plea.
[26] In upholding the appeal, it was held that the provisions of
Chapter III of the Prescription Act were not ousted in the case
of a
minor's claim in terms of the agreement (under the Old Act) where
such claim arose out of the driving of a motor vehicle of
which the
identity of neither the owner nor the driver could be ascertained –
paragraph [14] and [17] at 552E-G and 552J-553B.
[27] I add, as a matter of interest, that in
Geldenhuys &
Joubert v Van Wyk and Another; Van Wyk v Geldenhuys and Joubert and
Another
2005 2 SA 512
(SCA) the position under the New Act was
distinguished from that under the Old Act, as held in
Moloi
.
The matter also involved claims by minors for damages flowing from a
collision with an unidentified vehicle.
The corresponding regulation 2(4) under the New Act, provides that
once a claim has been sent or delivered to the Fund within the
two-year cut-off, the liability of the Fund "shall be
extinguished upon the expiry of a period of five years from the date
on which the claim arose, irrespective of any legal disability to
which the third party concerned may be subject and notwithstanding
anything to the contrary in any law, unless a summons to commence
legal proceedings has been properly served on the fund before
the
expiry of the said period".
At 520H-I, the learned Judge, Cameron JA, as he then was, said the
following:
"In conclusion I emphasise that the current legislation
expressly empowers the Minister to subordinate the fund's liability
to unidentified vehicle claimants to condition. In
Moloi
it was held, by contrast, that the now-repealed statute did not
empower the Minister by regulation 'to endeavour to convert' the
fund's 'unconditional liability' into a conditional liability.
That, as shown, differs from the position here: section 17(1)(b)
clearly subjects the fund's liability to unidentified vehicle
claimants to regulatory condition, which was validly imposed."
[28] I turn to the Prescription Act, Act 68 of 1969 ("the
Prescription Act").
[29] Chapter III deals with the prescription of debts and includes
section 13, the relevant portions of which read as follows:
"
Completion of prescription delayed in certain circumstances.
–
(1) If –
(a) the creditor is a minor or is insane or is a person under
curatorship or is prevented by superior force including any law or
any order of court from interrupting the running of prescription as
contemplated in section 15(1); or
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) ...; and
(i) the relevant period of prescription would, but for the provisions
of this section, be completed before or on, or within one
year after,
the day on which the relevant impediment referred to in paragraph
(a), (b), (c), (d), (e), (f), (g) or (h) has ceased
to exist,
the period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (i)."
[30] In very concise heads of argument, comprising one and a half
pages, Mr Röntgen argued that the learned Judge had
erred
in holding that the prescription period in this case had not been
extended as would happen "in the case of minors and/or
those
suffering from a mental disability", this being an obvious
reference to the provisions of the Prescription Act.
[31] Counsel also argued that the learned Judge had failed to apply
the
dicta
in
Moloi
to the present case and erred in
applying the principles laid down in
Geldenhuys
and
Joubert
.
This
is not correct. The learned Judge, indeed, referred to both
these cases and the distinction between the two and recognised
that,
in an appropriate case,
Moloi
could be applied. However,
he held that the report of Dr Earle, which had been relied upon
to support the appointment
of a
curator ad litem
, did not come
to the assistance of the appellant. The learned Judge, having
obviously had the benefit of reading the report
of Dr Earle
(which was not part of the record before us) held that the doctor
"however does not categorically state that
the plaintiff has had
a brain injury which will result in him not appreciating the
proceedings before court". The learned
Judge expressed the
view that Dr Earle alone, without the assistance of a
psychologist, could not have been the correct expert
to make such a
diagnosis. I assume this was a reference to the provisions
of High Court Rule 57 dealing with the appointment
of curators in
respect of persons under disability. Rule 57(3) stipulates:
"The application shall, as far as possible, be supported by –
(a) ...
(b) affidavits by at least two medical practitioners, one of whom
shall where practicable, be an alienist, (which is understood
to be a
psychiatrist) who have conducted recent examinations of the patient
with the view to ascertaining and reporting upon his
mental condition
and stating all such factors as were observed by them at such
examinations in regard to such condition, the opinions
found by them
in regard to the nature, extent and probable duration of any mental
disorder or defect observed and their reasons
for the same and
whether the patient is in their opinion incapable of managing his
affairs. Such medical practitioners shall,
as far as possible,
be persons unrelated to the patient, and without personal interest in
the terms of any order sought."
Ms Kollapen, who obviously had sight of the report by Dr Earle
argued, after pointing out that this report was not included in
the
record by the appellant, that Dr Earle does not "categorically
state that the plaintiff has had a brain injury which
will result in
him not appreciating the proceedings before court". She
also argued that "the assistance of a psychologist"
may
have been useful to the appellant. She argued, correctly in my
view, that there was an
onus
on the appellant, relying on the
provisions of the Prescription Act, to prove that the patient lacked
the mental capacity which
would have entitled the patient to the
protection afforded by the Old Act. She argued, correctly, that
this
onus
was not discharged.
[32] In this regard, it is necessary to mention that Mr Röntgen,
perhaps sensing the difficulties confronting the appellant,
indicated
that he has information about the existence of authority for the
proposition that, in a proper case, a court in our position
may
postpone the proceedings to enable the party in question to present
further evidence about the mental state of the patient
at the
relevant time. He asked for a postponement, which was opposed
by Ms Kollapen and not granted. We proceeded to
dispose of the
hearing, but nevertheless granted Mr Röntgen a few days to
come to light with the authority he had in
mind, before this judgment
was to be finalised.
Counsel duly brought references to two judgments to us in chambers,
as he was given leave to do. These are the references:
•
YuKwam v President Insurance Co Ltd
[1963] 1 All SA 347
(T). The applicant, not realising that his marriage was not
recognised in this country, and therefore thinking that he was
the
natural guardian of his minor daughter, instituted action against the
repondent on behalf of his minor daughter who had been
severely
injured in a motor car accident. The respondent was the insurer
of the car in question, in terms of Act 29 of 1942.
The collision took place in July 1960, and the summons was issued in
October 1961, with the applicant claiming some compensation
for
medical expenses in his personal capacity and damages on behalf of
his minor daughter in his representative capacity
When he was informed that he required an appointment as a
curator
ad litem
he asked for an order appointing him as such to assist
his daughter and ratifying and confirming the steps already taken by
him
as plaintiff after instituting the action. He also asked
for leave to amend the summons accordingly. The order was
granted.
This was, obviously, not a case where further evidence was required.
The learned Judge observed that "the courts are
generally
prepared to grant amendments to pleadings, provided no injustice or
prejudice be thereby occasioned to the other party"
(at p347).
It was held that "if after the lapse of the period of
prescription an entirely new cause of action or a new party be
introduced,
then, in my view, it is clear, that a prescribed cause or
a party whose right of action has become prescribed would be given a
new effectiveness to the prejudice of the defendant".
In the present matter, so the learned Judge held, there was no
introduction of a new party or a new cause of action, but the
amendment
merely amounted to a clarification of a step in the
proceedings which had insufficiently or imperfectly set out the one
cause of
action that throughout had been relied upon by the same
party. The summons was timeously issued. In the case
before
us, the "new party" in the person of the curator,
was introduced some years after the prescription period had elapsed.
The appointment was also flawed, in the sense that the magistrates'
court had no jurisdiction to make a finding as to the mental
status
of the patient.
•
Legal Aid Board in re Four Children
(512/10)
[2011]
ZASCA 39
(29 March 2011). The matter did not involve the
question of prescription. The Legal Aid Board applied for a
declaratory
order defining its rights in respect of an application by
four minor children for assistance involving a dispute about their
residence
which had developed between their divorced parents.
It was held that this was not "properly an appeal" and that
the court had no original jurisdiction to consider an application of
that kind. No order was made. I fail to see any relevance
between
that finding and the present dispute.
It is also clear that what the appellant is in fact seeking, is leave
to place further evidence before this Court of Appeal following
an
enquiry about the mental health of Nkosi at the relevant time.
In Herbstein & Van Winsen
The Civil Practice of High Courts of
South Africa
5
th
ed vol 2 at p1241, where
this issue is considered by the learned authors, the following is
stated:
"The principles applied in deciding whether to allow a party to
place further evidence before a Court of Appeal are as follows:
(i) It is essential that there should be finality to a trial, and
therefore if a suitor elects to stand by the evidence which he
adduces, he should not (later) be allowed to adduce further evidence,
unless the circumstances are exceptional.
(ii) The party who makes the application must show that the fact that
he has not brought further evidence forward was not attributable
to
any remissness on his part. He must satisfy the court that he
could not have procured the evidence in question by the
exercise of
reasonable diligence.
(iii) The evidence tendered must be weighty, material and presumably
worthy of belief, and must be such that, if adduced, it will
be
practically conclusive.
(iv) If conditions have so changed that the fresh evidence will
prejudice the opposite party, the court will not grant the
application,
for example if the witnesses for the opposite party have
been scattered and cannot be brought back to refute the fresh
evidence."
Of course, in this case no application of the kind was offered during
the hearing and, in any event, where the collision occurred
almost
twenty years ago, and where there is no
prima facie
indication
that there will be evidence about the mental state of the patient at
the time, which may advance the case of the appellant,
and where the
respondent would in any event have been prejudiced if such a
procedure had been allowed, it seems that the principles
listed by
the learned authors have in any event not been complied with.
[33] In conclusion, it seems to me that the position is as follows:
(i) Where the Old Act applies, the appellant, in a proper case, would
have been entitled to rely on the protection of section 13
of the
Prescription Act for the prescription period to be delayed.
(ii) In order to qualify for the protection, it would have been
necessary for the appellant, where Nkosi was not a minor at any
relevant stage, to make out a case for the existence of one of the
remaining impediments mentioned in section 13(1)(a), namely
insanity,
or the patient, Nkosi, being under curatorship.
(iii) It seems to me that the only reasonable interpretation to be
attributed to section 13 is that the impediment must exist
before the prescription period (in this case two years) has been
completed:
• In section 13(1)(a) it is contemplated that the creditor, who
is experiencing the impediment, must be prevented thereby
from
interrupting the running of prescription as contemplated in section
15(1), which provides that "the running of prescription
shall,
subject to the provisions of subsection (2), be interrupted by the
service on the debtor of any process whereby the creditor
claims
payment of the debt". Subsection (2) does not apply for
present purposes.
• Section 13(1)(i) also contemplates the completion of the
prescription period at a time when the impediment is already in
existence.
(iv) In the present case, as I have illustrated, Nkosi was not placed
under curatorship before the completion of the prescription
period:
Mr Röntgen was only appointed as
curator ad litem
on
22 January 2002 almost five years after the injury was sustained.
The summons was issued more than seven years after the
event.
(v) The existence of the remaining impediment, that of insanity,
either before the completion of the prescription period or at
all for
that matter, was not proved:
• According to the remarks by the learned Judge in his judgment,
and also the submissions by Ms Kollapen, the evidence of
Dr Earle,
which we did not have the benefit to read, did not establish the
existence of such an impediment. In any event,
Dr Earle was
only consulted on 27 August 2004, more than seven years after
the injuries were sustained.
• Although the learned Judge, in his judgment, assumed in favour
of the plaintiff (the present appellant) that the curator
appointments of both Mr Röntgen and the present appellant,
the wife Ms Xaba, "were validly made by the magistrate's
court"
this finding cannot override the provisions of sections 33 read with
46(2)(b) of the
Magistrates' Courts Act to
the effect that the
magistrate's court has no jurisdiction "in which the status of a
person in respect of mental capacity
is sought to be affected".
According to the learned author,
Van Loggerenberg, supra
, a
High Court application (presumably in terms of
rule 57)
, is required
in order to obtain relief of this nature. This was never done.
• In the result, the existence of the remaining impediment,
insanity, was never proved by the appellant.
CONCLUSION
[34] In view of the aforegoing, I have come to the conclusion, and I
find, that the appellant failed to make out a case for the
protection
of section 13 of the Prescription Act, and the delay of the
prescription period.
[35] In the result, the appeal has to fail.
COSTS
[36] This case involved a consideration of the authorities dealing
with the question whether a "creditor" suffering from
one
of the prescribed impediments, can, in the case of a collision
involving an unidentified vehicle, rely on the protection of
section
13 of the Prescription Act.
The exercise also involved a determination of the fact that the
answer to the question in respect of matters governed by the Old
Act,
differs from the position in matters governed by the New Act.
[37] To the extent that the question whether the impediment had to
exist before completion of the prescription period, also had
to be
considered, the interpretation of the Prescription Act, to that
limited extent, also came into play.
[38] Where Ms Xaba, the wife of Nkosi, was only appointed as the
replacement
curator ad litem
in August 2007, more than ten
years after the event, I am of the view that it would not be in the
interests of justice to order
her, albeit in a representative
capacity, to pay the respondent's costs flowing from the appeal.
It seems to me that it would be more appropriate not to make any
order as to costs.
THE ORDER
[39] I make the following order:
1. The appeal is dismissed.
2. There is no order as to costs.
W R C
PRINSLOO
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
P A MEYER
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
J W
LOUW
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 20 APRIL 2016
FOR THE APPELLANT: K M RÖNTGEN SNR
INSTRUCTED BY: RÖNTGEN & RÖNTGEN INC
FOR THE RESPONDENT: K KOLLAPEN
INSTRUCTED BY: IQBAL MAHOMED ATTORNEYS