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Ngxongwana v Road Accident Fund (1273/2015) [2016] ZAGPPHC 985 (27 October 2016)

80 Reportability
Personal Injury Law - Road Accident Fund
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Brief Summary

Road Accident Fund — Claim for damages — Plaintiff injured as a passenger in taxi — Allegation of negligence against insured driver — Defendant denies negligence, claims plaintiff caused accident — Key issue of compliance with section 19(f)(i) of the Road Accident Fund Act regarding affidavit submission — Plaintiff's affidavit deemed invalid as it was not signed in presence of Commissioner of Oaths — Claim dismissed due to non-compliance with statutory requirements.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a civil action for delictual damages arising from a motor vehicle accident, instituted in the High Court of South Africa, Gauteng Division, Pretoria. The plaintiff, N Oxolo N Gxongwana, sued the defendant, the Road Accident Fund (“RAF”), for compensation in terms of the Road Accident Fund Act 56 of 1996.


The plaintiff alleged that she sustained bodily injuries while travelling as a fare-paying passenger in an insured motor vehicle (a taxi). The defendant disputed liability, denying negligence on the part of the insured driver and alleging that the plaintiff was the sole cause of the incident.


At the commencement of the trial, the parties agreed to a separation of issues between merits and quantum. The court ordered that the matter proceed only on the merits. The plaintiff was the only witness to testify. Although the pleadings and evidence engaged the insured driver’s alleged negligence, the court considered a potentially dispositive statutory compliance issue under the Act, namely whether the plaintiff had submitted a valid affidavit as contemplated by section 19(f)(i).


2. Material Facts


It was common cause that on 7 January 2013 the insured driver was driving a motor vehicle with registration number [C…], used as a public transport taxi, and that the plaintiff was a fare-paying passenger in that vehicle.


The plaintiff’s version, as accepted for purposes of identifying the court’s relied-upon facts, was that she and her husband boarded the taxi travelling from Evander to Embalenhle. Her husband alighted earlier, after which the plaintiff remained in the taxi alone with the insured driver. She testified that the driver proceeded in an unknown direction and took a route unfamiliar to her.


On the plaintiff’s evidence, she repeatedly asked the insured driver to stop so that she could alight, but he ignored her requests, increased speed, and laughed at her. The plaintiff stated that she moved closer to the door, shook it to attract the driver’s attention, and eventually opened the door while the vehicle was moving. She then fell out of the moving taxi and sustained injuries.


A material factual issue arose during cross-examination regarding the content of an affidavit the plaintiff had purportedly deposed to on 28 August 2014. In that affidavit (as put to her), she had stated that she realised she was being abducted and jumped off the moving vehicle. In oral testimony, she denied that she threw herself out and asserted that she fell out after opening the door in an attempt to draw the driver’s attention.


Crucially, the plaintiff further testified that the affidavit’s contents were never read to her, that she was instructed by her attorney to sign it at home, and that she never appeared before a commissioner of oaths. These facts were relied upon by the court to assess whether a valid affidavit had been submitted to the RAF in compliance with statutory requirements.


3. Legal Issues


The central legal question determined by the court was whether the plaintiff’s claim was barred due to non-compliance with section 19(f)(i) of the Road Accident Fund Act 56 of 1996, which excludes RAF liability where a third party refuses or fails to submit (with the claim form or within a reasonable time) an affidavit fully setting out particulars of the accident.


This issue was primarily one of law and statutory compliance, informed by findings of fact about how the purported affidavit was executed (in particular, whether it was signed in the presence of a commissioner of oaths as required). The court treated the statutory compliance point as potentially dispositive, such that the case could fail without determination of negligence on the merits.


A subsidiary issue concerned costs, including whether costs should include those associated with an earlier postponement that occurred due to interpreter difficulties.


4. Court’s Reasoning


The court first outlined the statutory framework governing RAF liability. It referred to section 3 of the Act (the object of the Fund) and section 17(1) (the RAF’s obligation to compensate for bodily injury caused by or arising from the driving of a motor vehicle, where injury is due to negligence or wrongful act). The court then focused on section 19(f)(i), which operates as an exclusion of liability where the third party refuses or fails to submit an affidavit with full particulars of the accident.


The court explained the purpose of the section 19(f)(i) affidavit requirement: it is intended to furnish the RAF with sufficient information to investigate the claim and assess its legitimacy. Against that purpose, the court considered whether there was any valid affidavit before it and whether a valid affidavit had been submitted to the Fund.


In assessing validity, the court relied on the requirement in Regulation 3(1) of Government Notice R1258 of 21 July 1972, which the court described as peremptory in requiring that the deponent sign the declaration in the presence of a commissioner of oaths. The plaintiff’s evidence was that she had signed the document at home on instruction from her attorney, that it was not read to her, and that she did not appear before a commissioner of oaths. On that basis, the court concluded that the purported affidavit lodged with the Fund did not comply with the statutory requirements contemplated by section 19(f)(i).


The court also noted that plaintiff’s counsel did not address the section 19(f)(i) affidavit issue in re-examination or in written heads of argument, and the court regarded this silence as significant in context. The defendant’s submission was that the claim should fail because non-compliance meant the matter should not have proceeded to trial at all.


Having found the affidavit to be non-compliant, the court accepted the defendant’s contention that the claim ought to fail on that basis alone, without determining negligence and causation on the separated merits issue.


On costs, the court addressed an earlier hearing date (27 May 2016) when the plaintiff purported to require an isiXhosa interpreter, but the interpreter interpreted in isiZulu. In the interests of justice, the matter was postponed due to the unavailability of an isiXhosa interpreter on short notice. The court recorded that this postponement occurred at the instance of the plaintiff, and it took this into account in making a costs order that included costs for that date.


5. Outcome and Relief


The court dismissed the plaintiff’s claim.


The court ordered the plaintiff to pay the defendant’s costs. The costs order expressly included the costs of 27 May 2016 and 23 June 2016.


Cases Cited


No cases were cited in the judgment.


Legislation Cited


Road Accident Fund Act 56 of 1996, section 3.


Road Accident Fund Act 56 of 1996, section 17(1).


Road Accident Fund Act 56 of 1996, section 19(f)(i).


Rules of Court Cited


Regulation 3(1), Government Notice R1258 of 21 July 1972 (requirement that an affidavit be signed in the presence of a commissioner of oaths).


Held


The court held that the plaintiff’s purported section 19(f)(i) affidavit did not comply with the peremptory formalities for a valid affidavit because, on the plaintiff’s own evidence, it was not signed in the presence of a commissioner of oaths and its contents were not properly attested.


As a consequence of non-compliance with section 19(f)(i) of the Road Accident Fund Act 56 of 1996, RAF liability was excluded and the plaintiff’s claim was dismissed. The plaintiff was ordered to pay the defendant’s costs, including the costs of the postponed hearing on 27 May 2016 and the hearing on 23 June 2016.


LEGAL PRINCIPLES


Section 19(f)(i) of the Road Accident Fund Act 56 of 1996 functions as an exclusion of RAF liability where a claimant refuses or fails to submit a compliant affidavit setting out full particulars of the accident, together with the claim form or within a reasonable period thereafter.


The affidavit requirement serves an investigatory purpose: it must provide the RAF with sufficient information to investigate and evaluate the legitimacy of the claim.


An affidavit relied upon for compliance must be validly commissioned. In terms of Regulation 3(1) of Government Notice R1258 of 21 July 1972, it is peremptory that the deponent sign in the presence of a commissioner of oaths; failure to comply renders the purported affidavit non-compliant for purposes of section 19(f)(i).


Where statutory non-compliance under section 19(f)(i) is established on the evidence, the claim may fail on that basis without the court being required to determine negligence and causation on the merits, particularly where merits and quantum have been separated and the statutory point is dispositive.


In relation to costs, where a postponement occurs at a party’s instance (here, due to interpreter difficulties attributable to the plaintiff’s side), the court may include the costs of the postponed date in the final costs order.

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[2016] ZAGPPHC 985
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Ngxongwana v Road Accident Fund (1273/2015) [2016] ZAGPPHC 985 (27 October 2016)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 1273/2015
DATE:
27/10/2016
In
the matter between:
N
OXOLO
N
GXONGWANA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
J
U
D
G M E N
T
MALI
J
[1]
The plaintiff herein an adult female, instituted a claim against the
defendant for damages arising of out motor vehicle accident,
the sole
cause of the accident being the negligent driving of the insured
driver. It is common cause that on 7 January 2013 the
insured driver
was driving a motor vehicle with registration numbers [C...]. The
said motor vehicle was used for public transportation
and it is
commonly referred to as a taxi. It is also not in dispute that the
plaintiff was a fair-paying passenger in the said
taxi.
[2]
The defendant is the fund or agent obliged to compensate any person
for any loss or damage which the third party has suffered
as a result
of any bodily injury to him or herself caused by or arising from the
driving of a motor vehicle if the injury is due
to the negligence or
other wrongful act of the driver.
[3]
The defendant denies that the insured driver was negligent and
alleges that the plaintiff is the sole cause of the collision.
At the
commencement of the trial the parties agreed to separate issues of
merits and
quantum
of damages of the plaintiff's claim. I
ruled that the matter proceed on the issue of merits of the claim
only.
[4]
According to the plaintiff's particulars of claim the following is
stated;
"

5
The
cause of the accident is the negligent driving of the driver of the
insured motor vehicle one or more of the following ways;
1.
He
drove his
vehicle at the high
speed
knowing
that the Plaintiff was unwilling to
be
conveyed and as
a
result she fell off;
2.
He
failed to
have
due
regard to
the
Plaintiffs request;
3.
He
failed
to
apply
brakes timeously or
at
all;
4.
He drove his motor vehicle knowing
that it had
defective tyres and
or
brakes;
5.
The
insured
driver
failed
to
keep
a
proper look out."
LAW
[5]
Section 3 of the Road Accident Fund Act 56 of 1996 ("the Act")
provides;
"The
object of the Fund shall be the payment of compensation in accordance
with this Act for loss or damage wrongfully caused
by driving of
motor vehicle."
[6]
Section 17(1) of the Act provides:
"
The
fund or agent shall...be obliged to compensate any person for
any loss or damage which the third party
has
suffered
as a
result of any bodily
injury to
himself
or herself caused by or arising from the
driving of
a
motor
vehicle if
the
injury
is
due to negligence
or other
wrongful act of the driver....
[7]
Section 19 (f) (i) of the Act provides:
"(f)
if the third party refuses or fails-
(i)
to submit
to the
Fund
or
such
agent,
together
with
his or her
claim
form
as
prescribed
or
within
a
reasonable period
thereafter
and if he
or she is in
a
position
to do
so,
an
affidavit
in
which particulars
of
the accident
that gave rise to the claim
concerned
are fully
set out;
or..."
[8]
The plaintiff was the only witness who testified in support of her
case. She testified that on 7 January 2013 she and her husband

boarded the insured driver's motor vehicle ("taxi") from
Evander to Embalenhle. The plaintiff's husband first alighted
in a
different destination and the plaintiff proceeded with the taxi
because she was going to alight in the Mall.
[9]
The plaintiff remained alone  with  the  insured
driver  in the  motor vehicle whilst driving
in an
unknown direction. The driver took a different route which the
plaintiff was unfamiliar with. The plaintiff stated that she
asked
the insured driver to stop in order for her to alight. The insured
driver did not heed to her request instead &he increased
the
speed and ignored her.
[10]
The plaintiff further stated that she was seated behind the insured
driver's seat and continued to request the insured driver
to stop the
car. The insured driver looked at her through the rear view mirror
behind him
, ignored her again and laughed at her.
She inquired from the driver about the direction he was traveling in.
The driver instead
turned up the volume of the radio of the taxi. She
tapped the insured driver on the shoulder requesting him to stop. The
insured
driver instead again looked and laughed at her.
[11]
The plaintiff moved closer to the door and shook the door to draw the
insured driver's attention and to confirm her intention
to get out of
the motor vehicle. She further stated that she wanted to exit whilst
the taxi was in motion because she felt endangered
and frightened
when the insured driver took a unknown route.
[12]
The plaintiff stated that she finally managed to open the door of the
moving vehicle. The insured driver proceeded to keep
the taxi in
motion. She then fell out of the taxi, sustained injuries and then
tried to stop the passing vehicles. A certain gentleman
driver
appeared and told her that he was alerted by another motorist about
her. She then narrated her ordeal to the said gentleman.
The said
gentleman managed to trace the insured driver and called the police
officers. The insured driver was instructed by the
police officers to
take the plaintiff to the hospital and he did so.
[13]
Under cross examination she stated that she fell out of the moving
vehicle and she did not throw herself out. She reiterated
that her
intention was to draw the driver's attention by opening the door as
the driver was ignoring her.
[14]
The plaintiff was drawn to the affidavit she deposed to on 28 August
2014 wherein she attested to the fact that she realised
that she was
being abducted and jumped off the moving vehicle. She testified that
the contents of the affidavit were never read
to her. He attorney
instructed her to sign the affidavit and she signed it at her home.
She reiterated that she never appeared
before the Commissioner of
Oaths.
[15]
That concluded the evidence of the plaintiff and she closed her case.
Both Counsel submitted their written heads of argument
and I am
indebted to them. I have studied the heads of argument and have
considered their content in my judgment.
[16]
It is appropriate to deal with the question of a section 19(f)(i)
affidavit which might be dispositive of the issues. In terms
of
section 19 of the Act, liability is excluded in the event the third
party refuses or fails to submit an affidavit or statement
in terms
of section 19 (f). Section 19 (f) requires the third party to submit
an affidavit in which particulars of the accident
that gave rise to
the claim concerned are fully set out. The purpose of the statement
of the affidavit is to furnish the Fund with
sufficient information
to enable it to investigate the claim and determine whether or not it
is legitimate.
[17]
The begging question then is whether a valid affidavit was submitted
to the fund, and whether there is any affidavit before
court. In
terms of Regulation 3(1) No R1258 of 21 July 1972 it is peremptory
that the deponent signs the declaration in the presence
of the
Commissioner of Oaths.
[18]
In her heads of argument, Counsel for the defendant Ms Magano
submitted that in the event that the information regarding the

affidavit was brought to the attention of the defendant, the
defendant would have raised a special plea. She therefore concluded

that the matter ought to fail on that basis only.
[19]
Counsel for the plaintiff, Mr Kanyane did not raise the issue section
19 (f)(i) of the affidavit in his re- examination. Furthermore
he
neither made any submissions in the closing heads of argument dealing
with section 19 (f) (i) affidavit. The silence of the
plaintiff
regarding this matter is conspicuous.
[20]
It has now been established that the plaintiff’s purported
affidavit lodged with the fund does not comply with the provisions
of
section 19 (1) (f) of the Act. The investigation of the plaintiffs
claim was based on the
"affidavit"
which she
denies having read, as well as that she never deposed to the
purported affidavit in the presence of the Commissioner of
Oaths.
[21]
Having regard to the above, I fully agree with the defendant's
contention that the matter ought to fail on that basis alone.
This is
because the matter could not have proceeded to trial at all.
COSTS
[22]
The matter was first heard on 27 May 2016. The plaintiff purported to
be using the services of an isiXhosa interpreter. It
became apparent
at the start of the proceedings that the interpreter was interpreting
in isiZulu. In the interest of justice the
matter had to be postponed
because no isiXhosa interpreter was available on such short notice.
The postponement occurred at the
instance of the plaintiff.
[23]
In the result the following order is made:
23.1
The plaintiff's claim is dismissed with
costs.
23.2
Costs to include costs of 27 May 2016and
23 June 2016.
_______________________
N.P.
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff:

Adv J.T. Kanyane
Instructed
by:

KGADIMA KEKANA ATTORNEYS
Counsel
for the Defendant:
Adv F. Magano
Instructed
by:

NINGIZA HORNER INC
MATTER
HEARD ON:

23 June 2016
JUDGMENT
RESERVED ON:        15 JULY 2016
DATE
OF JUDGMENT:

27 OCTOBER 2016

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