About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1122
|
|
Ntoi v Road Accident Fund (36977/2014) [2016] ZAGPPHC 1122 (2 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 36977/2014
DATE
OF JUDGMENT: 02 December 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the application between:
MMM
NTOI
Plaintiff
And
ROAD
ACCIDENT
FUND Defendant
JUDGEMENT
[1]
The Defendant raised two special pleas in this matter.
[2]
The first point raised was that the Plaintiff did not comply with
Section 24(4) of the Road Accident Fund Act 56 of 1996 (as
amended),
(the Act) which requires that the (RAF 1) form referred to, should be
completed in all its particulars or it shall not
be accepted. In this
instance, the Defendant has failed to furnish details identifying the
vehicle in which she was a passenger.
The insured driver as well as
the particulars of the insured vehicle as required in paragraphs 6, 7
and 8 of the RAF 1 form.
[3]
Section 24(5) of the Act, entitles the Defendant to object to the
validity of the claim within a period of 60 days from the
date on
which the claim was served on the Defendant. Section 24(5) stipulates
that:
"If
the Fund or the agent does not, within
60
days from the date
on which a claim was sent by registered post or delivered by hand to
the Fund or such agent
as
contemplated in subsection (1),
object to the validity thereof, the
claim shall be deemed to
be valid in law in all respects."
[4]
The Defendant had formally objected thereto by way of a notice on 18
March 2014.
[5]
The second plea relates to the non-compliance with the provisions of
Section 24(6) of the Act which deals with the Plaintiffs
failure or
refusal to furnish a compulsory affidavit in terms of Section
19(f)(i) of the Act.
Section
19(f)(a)(i) stipulates that the Plaintiff must fully set out in the
compulsory affidavit the particulars of the accident
which gave rise
to her claim. Section 19(f)(i) of the Act provides that the Fund is
not obliged to compensate a third party who
fails or refuses:
"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."
[6]
It is a peremptory requirement that every claimant submits the
prescribed affidavit. A claimant is not excused from submitting
an
affidavit due to the fact that the particulars as to how the
collision arose did not fall within his/her personal knowledge.
[7]
The aforesaid pleas were served on the Plaintiff on 5 September 2014.
The Plaintiff failed to comply thereto. However, on 18
March 2016,
the Plaintiff served said affidavit on the Defendant. The Defendant
argued that such late submission is unreasonable.
[8]
The Defendant had not repudiated the Plaintiff's claim, but only
objected to the validity of the claim as a result of non-compliance
with Section 24(4) of the Act.
[9]
The Defendant seeks dismissal of the Plaintiff's claim in the first
instance, or alternatively, requests the Court to declare
that the
summons was prematurely served on the Defendant by virtue of Section
24(6)(a) and (b) of the Act, and cause the Defendant
to exercise its
rights in terms of Regulation 6(2)(a) and (b) of the Act. Section
24(6)(a) and (b) of the Act provides that the
summons may only be
served on the RAF after:
·
a period of 120 days have elapsed from the submission of the claim;
and
·
the claimant has furnished the compulsory Section 19(f) affidavit and
all copies of statements and documents relating to
the accident
within a reasonable period after coming into possession thereof.
[10]
In this instance the Plaintiff not only failed to identify the
insured driver but the registration details of the vehicles
involved
as well.
[11]
The issue which persists is that the Plaintiff had failed to comply
with Section 19(f)(i) and the objection raised by the Defendant
was
justified. I therefore disagree with the Plaintiff's submission that
the summons was not prematurely served. It is settled
law that
service of a premature summons remains ineffectual and does not
interrupt prescription.
[12]
The Plaintiff had further failed to respond to the enquiry of the
Defendant in terms of Regulation 6(2)(a) and (b) of the Act.
[13]
The claim was lodged within a three year period. The date of the
accident was 3 October 2013, and the claim was submitted on
21
February 2016. The affidavit in terms of Section 19(f)(i) was filed
on 18 March 2016 (before the expiry of the three year period).
[14]
It is settled law that if a summons be prematurely served but the
claim had not as yet prescribed, that the Plaintiff should
be
afforded an opportunity to rectify the situation. In the premises
therefore I find that the Plaintiff be given an opportunity
to
furnish the requested information and documentation required by the
Defendant.
[15]
Cognisance is further taken of the discrepancies in respect of the
claim submitted, particularly in respect of the claim submitted
and
the cause of the injury sustained by the Plaintiff. The differing
versions on the papers are recorded as follows:
·
accident report - the Plaintiff was a passenger in an unknown
vehicle;
·
in the "patient report form" - she was found "seating"
by the road and the cause of the accident was
recorded as "motor
vehicle";
·
"radiology report" - she was a "passenger involved in
MVA" and was a passenger in a "bucky"
as front seat
passenger.
[16]
The full details of the accident, the identity of the insured driver
and the details of the motor vehicle remain outstanding.
In
the premises therefore, I deem that the appropriate order be as
follows:
1.
It is declared that the summons was prematurely served on the
Defendant and has no force and effect;
2.
The Plaintiff is ordered to re-issue and serve a fresh summons in
compliance with Section 24 of the Act within 90 days of date
of this
order;
3.
The Plaintiff is further ordered to comply with Regulation 6(2)(a)
and (b) of the Act, within a period of 90 days of date of
this order;
4.
The Plaintiff bears the costs occasioned by the proceedings relating
to pleas raised.
___________________
H
KOOVERJIE
ACTING
JUDGE OF THE GAUTENG DIVISION