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[2016] ZAGPPHC 493
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Kgoale and Another v Road Accident Fund and Others (A769/2015) [2016] ZAGPPHC 493 (24 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.A769/2015
24/6/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
C
KGOALE FIRST
APPELLANT
C
DEGENAAR SECOND
APPELLANT
and
ROAD
ACCIDENT
FUND FIRST
RESPONDENT
THE
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES SECOND
RESPONDENT
THE
MINISTER OF
TRANSPORT THIRD
RESPONDENT
JUDGMENT
KUBUSHI,
J
INTRODUCTION
[1]
This appeal is pursuant to the refusal of an application for the
transfer of an action issued in the magistrates' court to the
High
Court, as a result of the expected
quantum
of the trial
exceeding the jurisdiction of both the district and regional courts.
The appellants are now appealing that decision
and, in the main,
attacking the constitutional validity of
s 50
(1) of the
Magistrates'
Courts Act 32 of 1944
, as amended (''the Act") in its current
form.
[2]
The appeal is before us with leave of the court below.
[3]
Subsequent to lodging the appeal, the appellants applied and were
granted leave to join the second and third respondents to
the appeal.
The appellants also applied and were granted leave to consolidate
their respective appeals under the present case number
A769/2015.
BACKGROUND
[4]
In order to place the matter in proper context it is necessary to
state the factual matrix to the application in the court below.
[5]
The first appellant ("Mr Kgoale") and the second appellant
("Ms Degenaar'') were involved in separate motor vehicle
collisions. Mr Kgoale's collision was with an unidentified driver.
They each issued summons in the magistrates' court Pretoria
against
the first respondent ("the Fund") claiming compensation for
damages suffered as a result of injuries sustained
during such motor
vehicle collision, in terms of the Road Accident Fund Act 56 of 1996
("the
Road Accident Fund Act"
;).
[6]
In preparation for trial and during medico-legal consultations it
became apparent that the damages suffered by both appellants
were
significantly more serious and of such an extent that the potential
damages claim would exceed the monetary jurisdiction of
the
magistrates' court. It, therefore, necessitated that the cases be
transferred to the High Court. This required that the appellants
withdraw their respective cases from the magistrate's court and issue
fresh summonses in the High Court. However, due to the threat
of
prescription, the actions could not just be withdrawn in the
magistrate's court and reissued in the High Court. It, thus, resulted
in the appellants having to approach the Fund for its consent to do
so and for the Fund to undertake to waive its right to plead
prescription. In respect of Mr Kgoale the Fund in a letter dated 25
May 2015 refused to grant the undertaking and, in respect of
Ms
Degenaar no undertaking was provided. Consequently, in separate cases
in the magistrates' court Pretoria, the appellants, applied
for the
referral of their respective matters to the Gauteng Division of the
High Court, Pretoria.
THE
JUDGMENT OF THE COURT BELOW
[7]
The crux of the appellants case in the court below was that the
sections of the Act which allows for transfer of cases from
the
magistrates' court, namely s 50 (1) of the Act to the High Court and
s 35 (1) of the Act to the regional magistrates' court,
were
constitutionally invalid, in that they unjustly infringe the
constitutional rights of a plaintiff to access the court and
of
equality before the law.
[8]
When giving its reasons for judgment in the matter of Mr Kgoale, the
court below, made the following findings:
"4. . . . the
section [s 50 (1) of the Act] provides for an application by the
defendant, rather than the plaintiff. It is
not the defendant [in
this instance] who requires the relief sought. The plaintiff seeks
relief of requiring the court to order
the removal and transfer to
the High Court having jurisdiction. Accordingly, a Magistrate Court
does not possess the power to remove
and transfer the action to the
High Court unless the defendant in the action requires it to make
such an order."
and
at
"9. The limitation
placed on the plaintiff's right of access to bring such an
application [in terms of s 50 (1) of the Act]
may constitute a
limitation to the constitutional right of access to justice and
access to courts. The limitation placed on the
magistrate's
discretion to consider such an application by a plaintiff may
therefore become necessary. The testing of the constitutionality
of
legislation, in particular the
Magistrates' Courts Act clearly
falls
outside the ambit of the magistrate's powers. A magistrate court was
created by statute, derives its power from a statute
that created it
and other legislation and has no power other than that conferred by
statutes. In accordance with sections 166 &
170 of the
Constitution (the Constitution of South Africa Act 108 of 1996 ("the
Constitution")] read with section 11o
of the Magistrates' Court
Act, the magistrates' court may not enquire into or rule on the
constitutionality of any legislation."
[9]
In respect of Ms Degenaar, the court below, in its reasons for
judgment, expressed itself as follows:
". . . The order
granted was at the request of the appellant himself after he had
recognised exactly what the law says, particularly
section 50 (1) of
the Magistrates' Court Act 32 of 1944.
. . . On the issues
pertaining to the constitutionality of the provisions, all I can say
is that I am a creature of Statute, bound
by the law as it is enacted
. . ."
[10]
Based on the said findings, the court below found itself constrained
by the provisions of the Act and the Constitution to can
exercise its
discretion and come to the assistance of the appellants for the
relief they sought and as such dismissed their respective
applications with costs.
[11]
It is my view that the court below acted correctly in dismissing the
appellants' applications. In accordance with the statutory
framework
provided for in the Act, in particular s 50 (1) thereof, the transfer
of an action at the instance of the plaintiff to
the High Court is
not possible. There is no discretion bestowed upon the magistrate in
the granting of this application, unless
it is brought by the
defendant. As a result, as the Act now stands, the only manner in
which a plaintiff may transfer a case to
the High Court lies solely
on the indulgence by and the consent of the defendant. In addition,
in terms of s 170 of the Constitution
read with s 110 of the Act, a
court of a status lower than a High Court may not enquire into or
rule on the constitutionality of
any legislation. The court below, as
such, could only pronounce itself on its ability or otherwise to
exercise its discretion in
terms of s 50 (1) of the Act in respect of
the relief sought by the appellants, and not on its constitutional
invalidity.
THE
GROUNDS OF APPEAL
[12]
On appeal before us, the appellants are persisting with their claim
of the constitutional invalidity of s 50 (1) of the Act
and are
raising the following grounds of appeal:
12.1.
That s 50 (1) of the Act provides for transfer of
a case from the magistrates' court to the High Court, only at the
instance of
a defendant. In addition thereto, s 35 (1) of the Act
provides for the transferral of a case from the district magistrates'
court
to the regional magistrates' court, but not to the High Court.
12.2.
That the abovementioned sections of the Act
unfairly and unjustly discriminates against the appellants'
constitutional right of
access to court and/or the right to equality
and not to be unfairly discriminated against.
12.3.
That the abovementioned sections be declared
invalid and inconsistent with the provisions of the Constitution of
the Republic of
South Africa.
12.4.
It will be prayed that the order of the court
below be set aside and replaced with an order that the application to
transfer the
action be granted.
THE
ISSUE
[13]
The crisp issue before us, as a court of appeal, is whether the
provisions of s 50 (1) of the Act. infringes upon the appellants'
right to equality and access to court as contained in s 9 and s 34 of
the Constitution.
THE
LAW APPLICABLE
[14]
Section 50 (1) of the Act. provides as follows:
"50 Removal of
actions from court to provincial or local division
(1) Any action in which
the amount of the claim exceeds the amount determined by the Minister
from time to time by notice in the
Gazette, exclusive of interest and
costs, may, upon application to the court by the defendant, or if
there is more than one defendant,
by any defendant, be removed to the
provincial or local division having jurisdiction –
(a)
notice of intention to make such application
shall be given to the plaintiff and to other defendants (if any)
before the date on
which the action is set down for hearing;
(b)
the notice shall state that the applicant objects
to the action being tried by the court or any magistrate's court;
(c)
the applicant shall give such security as the
court may determine and approve, for payment of the amount claimed
and such further
amount to be determined by the court not exceeding
the amount determined by the Minister from time to time by notice in
the Gazette,
for costs already incurred in the action and which may
be incurred in the said provincial or local division."
APPLICATION
OF THE LAW TO FACTS
[15]
It is the case for the appellants that s 50 (1) of the Act. violates
their constitutional rights whereas it is the respondents'
contention
that the section does not violate any of the appellants'
constitutional rights.
[16]
The respondents are opposing the appeal and are contending that,
besides their main defence, that the section does not in any
way
violate the appellants' constitutional rights, the appellants'
respective claims have prescribed. In respect of Mr Kgoale the
submission is that the whole claim has prescribed whereas in regard
to Ms Degenaar, the contention is that the general damages'
part of
the claim has prescribed.
[17]
The appellants do not deny that their respective claims have
prescribed. However, their counsel contends that the issue of
prescription should not be considered at this stage of the
proceedings. The argument is that we should not concern ourselves
with
the issue of prescription as it is irrelevant at this point and
can be raised in the High Court once the matter has been transferred.
[18]
But, the respondents are adamant that the issue of prescription
should be considered now. Their submissions is that the appellants
are contending, in a circuitous manner, to circumvent the provisions
of the Act and to apply constitutional remedies to what is
simply a
dereliction of duty either on the part of the appellants or the
appellants' attorneys of record. By acceding to the appellants'
request to have the matter transferred to the High Court without much
ado, would have a substantive effect, namely, the revival
of the
prescribed claim, so the argument goes.
[19]
The appellants and the respondents referred, in support of their
submissions, to the judgment in
Oosthuizen v RAF
[2011] All SA
71
(SCA). In that judgment, as in this instance, the plaintiff, in
the court below, had issued summons against the Fund for damages
in
the magistrates' court and his claim was found to exceed the monetary
jurisdiction of the magistrates' court. The plaintiff
was unable to
withdraw his case from the magistrates' court and issue fresh summons
in the High Court as the claim had prescribed.
The plaintiff applied
to have the case transferred from the magistrates' court to the High
Court having jurisdiction, on appeal,
it was found that there was no
statutory provision authorising such transfer and that section 173 of
the Constitution was also
not applicable.
[20]
The background to the appellants' respective cases, in this instance,
is as follows:
Mr
Kgoale's Case
[21]
Mr Kgoale was injured in a motor vehicle collision that occurred on
26 November 2008 when an unknown motor vehicle driven by
an unknown
driver collided with him whilst a pedestrian at the time. After the
collision he experienced severe pains in the left
extremities and
went to hospital. He was x-rayed and treated with analgesics, given a
sling and sent home to recover for two weeks.
[22]
Based on the clinical notes provided by the hospital, and on 10
October 2012, Mr Kgoale instructed his attorneys of record
to
institute a claim against the Fund. In the summons Mr Kgoale claimed
for medical expenses in the amount of R50 000, and general
damages in
the amount of R50 000, which brought him within the monetary
jurisdiction of the magistrates' court.
[23]
Mr Kgoale later attended several medico-legal consultation
assessments where it came to light that he suffered very serious
injuries. It was concluded that the injuries manifested over time and
that the injuries were not present and/or visible immediately
after
the collision. He did not realise, despite some unbearable pain and
discomfort that the injuries he sustained were as severe
as it later
appeared from the medico-legal reports compiled in preparation for
the trial.
[24]
On 15 January 2014, a Serious Injury Assessment Report (RAF4) was
compiled by an orthopaedic surgeon, indicating that Mr Kgoale
suffered serious long term impairment which could cause loss of
body function, and therefore, qualifying him for general damages.
In
addition, Mr Kgoale will be compromised in future employment with a
loss of income due to his injuries.
[25]
It is submitted on behalf of the respondents that Mr Kgoale's claim
was based on the negligence of an unidentified driver and
that in
terms of
regulation 2
(1)
(a)
of the
Road Accident Fund Act
such
a claim must be sent or delivered to the Fund within two (2)
years from the date upon which the cause of action arose. Mr Kgoale's
claim had, according to the respondents, already become prescribed
when the summons, dated 8 October 2012, was served on the Fund.
Mr
Kgoale underwent a serious injury assessment on 15 January 2014 which
means that any entitlement that Mr Kgoale might have had
for an award
to increase his claim of general damages had also become prescribed.
Ms
Degenaar's Case
[26]
Ms Degenaar was involved in a motor collision on 23 August 2008
whilst a passenger in one of the motor vehicles that collided.
She as
a result sustained multiple injuries and taken to hospital. She was
conscious and complained of neck pain and had multiple
soft tissue
injuries. At the hospital she was given a soft neck cover to wear and
discharged the same day. At that time she did
not realise that
despite some pain and discomfort the injury was as severe as it later
appeared from the medico-legal report compiled
in preparation for the
trial.
[27]
She instituted her claim against the Fund on 3 March 2011. No
settlement proposals were forthcoming and she gave instructions
to
her attorneys of record to proceed with the issue of summons against
the Fund. On 21 September 2011 the Fund was served with
the summons.
In the summons, Ms Degenaar claimed for only medical expenses in the
amount of R77 294, 44.
[28]
On 9 December 2013, and in preparation for trial, a medico-legal
report was compiled by an orthopaedic surgeon, indicating
that the
extent of the injury that she sustained in the motor vehicle
collision was more severe than previously indicated. The
report
concluded the following: that on the date of examination (five (5)
years after the collision) the pathology has increased
rapidly and
there are radiological signs visible on 2 levels; due to the current
pathology Ms Degenaar has a good chance to end
up with progressive
spondylosis which will require surgical intervention; and, the
injuries were of such a nature, that it only
manifested over time
after the accident and as such, were not present during the medical
examination after the collision neither
when summons was issued.
[29]
On the same date, a Serious Injury Assessment Report (RAF4) was
compiled by the orthopaedic surgeon, indicating that Ms Degenaar
suffered serious long term impairment which could cause loss of body
function, therefore qualifying her for general damages. In
addition,
she would also be compromised in future employment with loss of
income that will be suffered in that regard.
[30]
Ms Degenaar was involved in a motor collision on 23 August 2008. She
lodged her claim with the Fund on 10 March 2011 and a
statutory
medical report was submitted on the same day. Summons was issued
against the Fund on 8 September 2011. At the time of
issue of the
summons the insured driver was unidentified. The particulars of claim
were later amended to base her claim of negligence
on an identified
insured driver but did not claim for general damages. She was first
assessed for a serious injury in terms of
s 17
(1) (A)
(a)
of
the
Road Accident Fund Act on
9 December 2013, which is some two (2)
years and three (3) months after the service of summons upon the
Fund.
[31]
Claims against the Fund are understandably time bound. There are
statutory prescribed prescription periods. The Fund, like
any other
litigant, is entitled to raise a defence based on prescription. See
Oosthuizen v RAF
[2011] All SA 71
(SCA) para 23
[32]
It is common cause that at the time the appellants underwent the
assessment for serious injury to enable them to claim for
general
damages, their respective claims for general damages had already
prescribed. Put differently, at the time the assessment
was done Mr
Kgoale's claim as a whole had prescribed and Ms Degenaar's claim in
respect of the general damages had also prescribed.
Therefore, based
on the prescription issue, even if the matters are transferred to the
High Court, there is no prospect of success
of such claims as they
have already prescribed. In effect, the claims have become academic
and to rule that the actions be transferred
to the High Court will
serve no purpose.
[33]
I do not agree with the contention that neither of the appellants nor
their legal representatives foresaw, at the time that
the appellants'
claims were lodged, that the claims would exceed the monetary
jurisdiction set by the Act in respect of the magistrates'
courts
and, that the medico-legal reports which were obtained later revealed
that the injuries manifested over time and were not
visible
immediately after the collision. This argument by the appellants does
not take their case any further, the fact remains
that at the time
the appellants realised that they were entitled to claim for general
damages as
per
the assessed serious injuries their respective
claims had long prescribed and would not be revived by having them
transferred to
the High Court.
[34]
The appellants' argument in the heads of argument that the
Oosthuizen
judgment above cannot be regarded as authority
for the issues raised in the matter before us is to me unfounded. I
am more inclined
to agree with the respondents who submit that the
Oosthuzen-judgment is in fact very much a case in point. The
respondents' argument,
to which Iam aligned, is that the only
difference between the facts in this instance and those in the
Oosthuzen-judgment is that
the plaintiffs claim in the
Oosthuzen-judgment had prescribed, whereas in this instance, Ms
Degenaar's entitlement to an award
for general damages has been
extinguished by prescription and Mr Kgoale's claim for damages has
prescribed as well. Another difference
is that in the
Oosthuzen-judgment the attorney in question was in possession of the
medico-legal reports prior to the five year
prescription period and
for some reason did not act on them; whereas in this instance the
appellants' attorneys only obtained the
medico-legal reports after
the five year period of prescription and was, as a result of the time
lapse, unable to withdraw the
action from the magistrates' court and
issue same in the High Court. However, in both cases the claims had
been extinguished by
prescription. The appeal court in the
Oosthuizen-judgment at para 23 was of the view that
'Acceding to
the respondent's request would have
a
substantive effect,
namely the revival of
a
prescribed claim';
and that by
acceding to the request would be tantamount to depriving the Fund of
a lawful defence of prescription.
[35]
It is also my view that the appellants' claim in respect of the
relief they sought in the application before the court below
was in
any way flawed. The appellants did not in their papers before the
court below nor before us set out positive averments relating
to the
quantum
determination of the matter, that is, the amount in
respect of general damages and in respect of the other heads of
damages to show
that the
quantum
would exceed the jurisdiction
of the court below and/or that of the regional court. The appellants
ought to have quantified their
respective damages to enable the court
to determine if indeed their claims exceed the jurisdiction of the
court below and that
of the regional court for their claims to can be
referred to the High Court.
[36]
Similarly as in the Oosthuzen-judgment, the circumstances of this
case do not cry out for the moulding of a constitutionally
acceptable
remedy to circumvent the provisions of s 50 (1) of the Act. I
therefore do not intend to venture into that territory
as called upon
by the appellants to do so. On the issue of prescription alone the
appeal must fail.
[37]
For these reasons the appeal is dismissed with cost.
__________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
I
AGREE
__________________
S.
S. MPHAHLELE
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON THE:
17/05/2016
DATE
OF
JUDGMENT: 24/06/2016
APPELLANTS'
COUNSEL: ADV.
G. J. SCHEEPERS
ADV.
W.R. du PREEZE
APPELLANT'
S ATTORNEYS: VAN
ZVL LE ROUX INC.
FIRST
RESPONDENT'S COUNSEL: ADV.
R. STRYDOM
FIRST
RESPONDENT' S ATTORNEYS: FOURIEFISMER
INC.
SECOND
& THIRD RESPONDENTS' COUNSEL: ADV.
L.M. MAITE
SECOND
& THIRD RESPONDENTS' ATTORNEYS: STATE
ATTORNEY