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[2016] ZAGPPHC 935
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Kekana v Road Accident Fund (57124/2013) [2016] ZAGPPHC 935 (9 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
DATE:
9/11/16
Case
Number: 57124/2013
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In
the matter between:
NTUNTU
DAVID
KEKANA Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiff, a 57 year old male detective in the South African
Police Service, instituted a claim for damages against the
defendant
based on an alleged breach of a duty to care. The defendant raised a
special plea of prescription which special plea
forms the subject
matter of this judgment.
PLEADINGS
[2]
According to the pleadings, the plaintiff suffered injuries in a
motor vehicle collision that occurred on 8 August 1996. The
plaintiff
lodged a claim directly with the defendant, which claim was settled
during 1999 in the amount of R 63 088,45. The plaintiff
alleges that
the defendant under settled the claim and in so doing
"The
road accident fund failed to act in the best interest of the
plaintiff who was then a direct claimant.
''.
[3]
The relevant allegations pertaining to knowledge of the under
settlement of the claim, reads as follows:
“
12.3
On
or about 2310711999 an offer of settlement was issued to the claimant
in the amount of R48, 835-31, the claimant protested that
the offer
was little and requested the road accident fund (handler Lizanne
Coetzee increased the offer).
12.4
On
the 2nd of August 1999 a second offer in the amount of R63088-45, the
offer was issued as full and final. The claimant was still
not happy
and inquired as to why are his medical expenses half of the
amount/expenses incurred, the claims handler informed him
that the
claimant had injured himself and therefore the 'RAF' will not pay any
further amount.
12.5
The
claims handler informed the claimant that the offer made was
reasonable and fair and should he appoint an attorney he would
pay
from his pocket.
12.6
Even
though the claimant was dissatisfied with the offer he reluctantly
accepted the offer in order to avoid further costs.
12.
7
The
plaintiff became aware in 2013 after reading
a
newspaper
clipping in the Pretoria news where
a
direct claimant who was
under compensated was re compensated by the north Gauteng high
court, he further noticed that the facts
of that case where
(sic)
similar to his facts that his claim was under compensated.
12.8
The
plaintiff decided to appoint an attorney to hear if his claim was
under settled and if his claim can be revived.
12.9
Upon
assessment of the claim and compensation, it was clear that the
amount tendered to the claimant as full and final settlement
was
neither
a
reasonable, nor fair and that his claim was indeed
under settled."
[4]
The defendant's special plea of prescription is premised on the
following averments:
1.
1 During or about February 1999, and in consequence of an alleged
accident on 8 August 1996, the Plaintiff submitted to the Defendant
a
statutory Form 1, in which the Plaintiff claimed from the Defendant:
1.
1. 1 Medical expenses in the amount of R 49 781, 54,·
1.
1.2 General damages in the amount of R 80 000, 00,· and
1.
1.3 Future medical expenses, of which proof were to be furnished
later.
1.2
…
1.3
In consequence of the claims submitted, and during September 1999,
the Defendant made a written offer of settlement to the Plaintiff,
of
which a copy is attached hereto marked annexure 'Pl ''.
1.4
The Plaintiff accepted the offer and signed a waiver, of which a copy
is attached hereto marked Annexure 'P2''. As such, and
or about 6
September 1999, when the debt became due, the Defendant made payment
to the Plaintiff in the amount of R 63 088, 45,
which agreed amount
was calculated as follows:
1.4.
1 Past hospital expenses in the amount of R 11391.91,·
1.4.2
Past medical expenses in the amount of R 10 502. 11;
1.4.3
Future medical expenses in the amount of R 10 000. OO,·
1.4.4
General damages in the amount of R 25 000. OO,· and
1.4.5
Expanses in the amount of R 194.37
1.5
Having regard to the value of the claim submitted, which Plaintiff
completed and submitted in person, when Plaintiff accepted
the offer
of settlement and received the payment, the Plaintiff knew
alternatively ought to have known, that the settlement was
far less
than the amount he was, on the Plaintiff's version entitled to.
1.6
Summons commencing action was only instituted during or about October
2013.
1.7
In the premises, plaintiff's claim has prescribed in terms of section
11 of Act 68 of 1969.
"
LEGAL
PRINCIPLES
[5]
It is common cause between the parties that the plaintiff's claim is
a 'debt' as envisaged in the Prescription Act, 68 of 1969
(the Act)
and that the prescription period in respect of the debt, in terms of
section 11(d), is three years.
[6]
The question that needs to be answered is exactly when the
prescription period commenced. Section 12 (1) provides that
prescription
commence as soon as the debt is due. In its special plea
the defendant relies on the provisions of section 12(3), which reads
as
follows:
''A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and 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.
"
[7]
It is trite law that the defendant bears the
onus
in proving
either actual or constructive knowledge. [See:
Macleod v Kweyiya
2013 (6) SA 1
SCA at para [10].]
EVIDENCE
[8]
Although the defendant bears the
onus,
it did not call any
witnesses whereas the plaintiff elected to testify.
[9]
In respect of the issue to be determined herein, the plaintiff
testified that he was aware when he accepted the defendant's
offer
that the amount did not adequately compensate him for the damages
consequent upon the injuries he sustained. He further testified
that
his medical bills were more than the offer made by the Fund. When he
protested, an employee of the Fund told him that there
is
"No
way the offer could be made better because I had self-inflicted
injuries and the claim was about to expire and once the
claim expires
I will get nothing. If I go to a lawyer I will have to foot the bill.
The plaintiff testified that he accepted the offer because he had
medical bills to pay and that he did not know what to do from there
onwards.
[10]
The plaintiff confirmed that he only sought legal advice during 2013
after he had read an article in the Pretoria News about
a person who
had a problem similar to his problem.
[11]
During cross-examination it emerged that the plaintiff was aware when
he accepted the offer that he was being treated unfairly.
When
asked what he did about his unhappiness, he answered he could not do
anything because he did not have the knowledge where to
go. It was
only in 2013 and after reading the newspaper article that his eyes
''opened''.
DISCUSSION
[12]
Mr Myburg, counsel for the defendant, indicated that the defendant
relies on actual knowledge and consequently the court does
not need
to consider the principles applicable to constructive knowledge.
[13]
Both Mr Myburg and Mr Sekula, counsel for the plaintiff, agreed that
the identity of the debtor (the Fund") was known
to the
plaintiff when he accepted the offer.
[14]
The only issue that remains in dispute is the date on which the
plaintiff became aware of
"the facts from which the debt
arises''.
Mr Myburg submitted that the date would be either when
the plaintiff accepted the offer from the fund or when he received
the amount
of damages. Both these events occurred in 1999 and
consequently the plaintiff's claim has prescribed.
[15]
Mr Sekula did not agree. He submitted that the plaintiff's claim is
premised on the defendant's breach of a duty of care it
owned the
plaintiff and that such duty and the breach thereof only came to the
plaintiff's knowledge in 2013. The proceedings were
instituted in
2013 and as a result the special plea of prescription should be
dismissed.
[16]
In the premises, the crisp issue to be determined is whether
knowledge of the duty of care the defendant owed the plaintiff
is, in
the present circumstances, a
''fact from which the debt arises''.
[17]
In support of his contention that all the facts underlying the
plaintiff's claim were already known to the plaintiff in 1999,
Mr
Myburg referred me to various authorities.
[18]
Lewis JA, with reference to earlier decisions, summarised the
prevailing legal position in
Claasen v Bester
2012
(2) SA 404
SCA at para [15], as follows:
"These
cases clearly do not leave open the question posed and not answered
in Van Staden. They make it abundantly clear that
knowledge of legal
conclusions is not required before prescription begins to run. There
is no reason to distinguish delictual claims
from others. The
principles laid down have been applied in several cases in the court,
including most recently Yellow Star Properties
1020 (Pty) Ltd v MEG,
Department of Development Planning and Local Government, Gauteng
2009
(3) SA
577
(SCA)
[2009} 3 All SA 475)
para 37 where Leach AJA
said that if the applicant 'had not appreciated the legal
consequences which flowed from the facts' its
failure to do so did
not delay the running of prescription. See also A TB Chartered
Accountants (SA) v Bonfiglio
[2011] 2 All SA 132
(SCA) paras 14 and
18.
"
[19]
Mr Myburg submitted that a duty of care and consequently the breach
thereof is a legal conclusion and not a fact underlying
the debt. Mr
Sekula conceded during argument that, save for the duty of care fact,
no new facts came to light from the date the
plaintiff grudgingly
accepted the defendant's offer until summons was issued.
[20]
Mr Sekula referred me to various cases in support of his contention
that prescription only commenced in 2013. He submitted
that the
unreported judgment of Modiba AJ in
Anthony Phumule Ndlala v Road
Accident Fund
[Gauteng Division, Pretoria, case number
34859/2011] dealt with the very issue under consideration and
supports his contention.
He relied on paragraph 11, which reads as
follows:
'Our
courts have repeatedly held that where a person owes another a legal
duty of care, prescription only commence to run when the
latter
person becomes aware of the breach of the duty. 4 Therefore in terms
of
section 12
(3) of the
Prescription Act, prescription
is reckoned
from the day the plaintiff becomes aware that the defendant was
negligent in not fulfilling the representations it
made to him. The
plaintiff only became aware of the defendant's negligence when he
consulted an attorney in January 2011. Until
that date, the plaintiff
did not know that his claim had prescribed in the hands of the
employees. The defendant has not adduced
facts to prove or even
argued that the Plaintiff should have acquired that knowledge by
exercise of reasonable care. Therefore
prior to that date, the
plaintiff cannot be deemed to have had constructive knowledge of the
loss that he sustained as a result
of negligence on the part of the
defendant's employees. Prescription for the plaintiff's claim for
breach of the legal duty of
care started running in January 2011 when
he received advice from his attorneys. He issued summons on 21 June
2011 and served them
on the defendant on 30 June 2011, well within
the 3 year prescription period applicable in terms of section 12 (3)
of the Act."
[21]
Modiba AJ relied on certain extracts (173 B-D and 174 C-D) from the
judgment in
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
SCA in
support of his conclusion that prescription commences once a
plaintiff becomes aware of the breach of a duty to care. I
had regard
to the references
supra
and respectfully disagree with the
conclusion he reached in this respect.
[22]
Mr Sekula also referred to the Constitutional Court judgment in
Road
Accident Fund v Mdeyide
2011 (2) SA 26
CC. The matter is,
however, distinguishable from the present matter, in that it dealt
with the provisions of
section 23
of the
Road Accident Fund Act, 56
of 1996
.
[23]
Mr Sekula further referred to the unreported judgement of Murray AJ
in
Anderson Angelina v Elmer Junius Bredenkamp N.O
. [Free
State Division, Bloemfontein, case nr 5469/2007], in which it was
held that prescription commenced on the date when the
plaintiff
became aware that the Deed of Gift she relied upon for he occupancy
of an immovable property was invalid. The background
facts underlying
the aforesaid conclusion are set out in the judgment as follows:
"[2]
In brief, the Plaintiff received, in terms of a Deed of Gift ("the
Deed') two erven as a gift from her mother ("the
mother') on 26
September 1994. The erven formed part of Sub-Division 7 of the
consolidated farm Louterwater No 77 in the district
of Parys which
was registered in the mother's name. The Plaintiff built a house on
the said erven in 1995 and effected further
improvements to it in
1998 and 2002, but since the Deed contradicted the provisions of the
Subdivision of Agricultural Land Act,
70 of 1970, ("the Act'),
Louterwater was never sub-divided in order to transport the erven to
the Plaintiff.
(See: Wary Holdings (Pty) Ltd v Stalwo (Pty)
Ltd and Others
1
)
[3]
The plaintiff now offers restitution of her occupancy of the erven
and claims from the deceased estate in an enrichment action
payment
of R548 527.00, being the value of the fixed improvements she had
made to the land in the bona fide belief that the Deed
was valid and
that she was to be the sole heir of the undivided property. Her
step-brother ("the brother' / , the executor
of her mother's
estate, and in terms of the mother's last Will the sole heir,
occupies the Plaintiff's house and avers in a Special
Plea on behalf
of the estate that her claim has prescribed."
[24]
Knowledge that the Deed was invalid was a fact for purposes of the
plaintiff's enrichment claim in the matter
supra
and
consequently, the judgment does not assist the plaintiff in the
matter
in casu.
[25]
Although I have the utmost sympathy with the plaintiff's predicament,
the law as it stands simply does not assist him. In the
premises, I
agree with Mr Myburg's submission that all the facts from which the
debt arises was known to the plaintiff in 1999.
The information that
came to the plaintiff's knowledge in 2013 was the legal conclusion
that flows from the facts. It follows that
the plaintiff's claim has
prescribed and that the action stands to be dismissed.
ORDER
In
the premises, I make the following order: The plaintiff's claim is
dismissed with costs.
__________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
Counsel
for the Applicant: Advocate Sekula
Instructed
by: T L Kekana Attorneys
Counsel
for the Respondent: Advocate Myburgh
Instructed
by: Mathie Jooma Sabdia Incorporated