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[2007] ZASCA 114
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Road Accident Fund v Ngubane (585/2006) [2007] ZASCA 114; [2007] SCA 114 (RSA); 2008 (1) SA 432 (SCA) (21 September 2007)
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THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
CASE NO 585/2006
In
the matter between
THE ROAD ACCIDENT
FUND
.......................
Appellant
and
THEMBISILE VIERA
NGUBANE
.......................
Respondent
Coram: Scott,
Mthiyane, Jafta, JJA and Malan, Mhlantla AJJA
Heard: 7 SEPTEMBER
2007
Delivered:
21 SEPTEMBER 2007
Summary:
Regulation 2(3) read with
section 17(1)(b)
of the
Road Accident Fund
Act 56 of 1996
– claim to be lodged with the Fund within two
years – the Fund may waive this requirement or enter into a
compromise.
Neutral
citation: This judgment may be referred to as
Road
Accident Fund v Ngubane
[2007] SCA 114
(RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
JAFTA JA
[1] On 8 December
2000 a collision occurred on Mid Illovo Highway, Umbumbulu,
KwaZulu-Natal between a motor vehicle driven by the
respondent (the
plaintiff) and another vehicle driven by an unidentified person.
Arising from the injuries sustained by her in the
collision, the
plaintiff lodged a claim and later instituted action for compensation
against the Road Accident Fund (the Fund) in
the Durban High Court.
The Fund, in a special plea, alleged that the plaintiff’s claim
had prescribed as it was lodged after
the expiry of two years from
the date of the collision. However the plaintiff had, in her
particulars of claim, alleged that the
Fund had agreed to pay 80 per
cent of damages proved at the trial.
[2] Having ordered a
separation of issues, the court below (Hurt J) was asked to deal with
the matter as if it were an exception and
determine whether on the
facts alleged in the particulars of claim, the Fund had the authority
to conclude an agreement to compensate
the plaintiff. The importance
of this was that the allegations in the plaintiff’s particulars
were taken as correct for purposes
of deciding the special plea. The
remaining issues stood over for determination at a later date. I will
adopt the same approach in
deciding this appeal.
[3] The
learned judge held that ‘the passage of a period of two years
after the date of injury, without the delivery of a claim
form in
terms of
section 24
cannot vitiate any claim which the “plaintiff”
may have’. Accordingly he ruled that the defendant had the
capacity
to enter into the agreement in question and postponed the
matter
sine die
at the
request of the parties. The Fund appeals against that ruling with
leave of this court.
[4] It is common
cause that the plaintiff did not comply with reg 2(3) of the
regulations made under s 26 of the Road Accident Fund
Act 56 of 1996
(the Act), regarding the time frame within which she ought to have
lodged her claim. The regulation requires that
claims such as the
present be lodged with the Fund within two years from the date of the
accident. In this case the plaintiff’s
claim was lodged six
weeks after the deadline.
[5] But the Fund
(through a claims handler) entered into an agreement with the
plaintiff in terms whereof it admitted liability to
an apportioned
degree and agreed to pay 80 per cent of the plaintiff’s
established damages. This agreement was concluded after
the period of
two years had expired. The question that arose both in this court and
the court below was whether the Fund had, by
entering into the
agreement, competently caused to be enforceable what was otherwise an
invalid and unenforceable claim, in view
of the peremptory provisions
of the subregulation.
[6] Before dealing
with the Fund’s submissions it is necessary to refer to the
relevant legislation. The Fund’s liability
to compensate
claimants such as the plaintiff is imposed by s17 of the Act. The
section provides:
‘
(1)
The fund or an agent shall-
(a) ….
(b) subject to any regulation made under
section 26, in the case of a claim for compensation under this
section arising from the driving
of a motor vehicle where the
identity of neither the owner nor the driver thereof has been
established, be obliged to compensate
any person (the third party)
for any loss or damage which the third party has suffered as a result
of any bodily injury to himself
or herself or the death of or any
bodily injury to any other person, caused by or arising from the
driving of a motor vehicle by
any person at any place within the
Republic, if the injury or death is due to the negligence or other
wrongful act of the driver
or of the owner of the motor vehicle or of
his or her employee in the performance of the employee’s duties
as employee.’
[7] The relevant
part of regulation 2 reads:
‘
(3)
A claim for compensation referred to in section 17(1)(b) of the Act
shall be sent or delivered to the Fund, in accordance with
the
provisions of section 24 of the Act, within two years from the date
upon 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.
The liability of the Fund in respect
of any claim sent or delivered to it as provided for in
subregulation (3) shall be extinguished
upon the expiry of a period
of five years from the date upon 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.’
[8]
Relying on
Geldenhuys & Joubert v Van Wyk
and Another
;
Van Wyk v
Geldenhuys & Joubert and Another
2005 (2)
SA 512
(SCA), counsel for the Fund submitted that the lodging of a
claim within two years of the collision is a precondition for the
existence
and enforceability of any claim against the Fund under s
17(1)(b). Accordingly, so it was argued, neither the claims handler
nor
the Fund was empowered to ‘give life’ to a claim
after the expiry of the two-year period by concluding an agreement to
accept liability. Any such agreement would, the argument concluded,
be
ultra vires
the Act
and regulations and hence not binding on the Fund. It was also argued
that, although s 4(1)(b) empowers the Fund to ‘investigate
and
settle’ claims arising under the Act, it does not entitle the
Fund to undertake liability where none existed at the time
of the
settlement or compromise.
[9] I
do not accept the argument.
Geldenhuys &
Joubert
was concerned with the validity of
regulation 2(3), and which upheld it (see para 24). The statements
made in that case to the effect
that ‘[t]he regulation plainly
makes the lodging of the claim within the two-year period a
precondition to the existence of
the debt’ and ‘[i]f the
claim is not lodged within this period, there is no “debt’’’
must be
read in context. The reference to ‘no debt’ was
clearly intended to be understood as meaning ‘no recoverable
debt’.
This is so because in that case the court referred to
the word ‘debt’ in the context of prescription as
contemplated
in the
Prescription Act 68 of 1969
. In that context the
term ‘debt’ carries a wide and general meaning which
includes a claim for damages.
[10] In
the present case the claim came into existence at the time of the
collision on 8 December 2000. The plaintiff’s failure
to lodge
it timeously with the Fund did not affect its existence at all.
Instead what was compromised was her right to enforce the
claim. In
rejecting the proposition that a claim does not exist in the absence
of compliance, this court in
Road Accident
Fund v Smith
2007 (1) SA 172
(SCA) said (para
6):
‘
There
is a claim but, unless there has been compliance with the regulation,
the claim is not enforceable. Put differently, absent
compliance with
the regulation, the Fund is not obliged to compensate the claimant.
It is the enforceability of the claim, not its
existence, which is
compromised by non-compliance with the regulation.’
See
also
Engelbrecht v Road Accident Fund and
Another
[2007] ZACC 1
;
2007 (5) BCLR 457
(CC) paras 21-22.
[11] It
is by now settled that a statutory provision such as
regulation 2(3)
which was enacted for the special benefit of a body such as the Fund
may be waived by that body if no public interests are involved
(
SA Eagle Co Ltd v Bavuma
1985
(3) SA 42
at 49G-H). Accordingly, compliance with the regulation can
be waived by the Fund (
Road Accident Fund v
Smith
para 8). It is not required, as was
submitted on the Fund’s behalf, that this waiver be
specifically pleaded because implicit
in the compromise is a waiver
by the Fund of compliance with the regulation. In this case
sufficient facts have been alleged to inform
the Fund of the case the
plaintiff is relying on (see
Imprefed (Pty)
Ltd v National Transport Commission
1993 (3)
SA 94
(A)).
[12]
Consistently with waiver the parties have, by entering into a
compromise, terminated whatever rights and obligations they may
have
had including the Fund’s right to demand compliance with
regulation 2(3).
In other words the plaintiff is not entitled to
recover full compensation for damages she had suffered and the Fund
is precluded
from raising any defence it had against the original
claim. The agreement of compromise gave rise to new rights and
obligations upon
which the plaintiff has rooted her cause of action
(see
Lieberman v Santam Ltd
2000
(4) SA 321
(SCA) paras 11-12). Unless reserved in the compromise,
parties thereto are precluded from enforcing rights and obligations
arising
from the compromised claim. In
Hamilton
v Van Zyl
1983 (4) SA 379
(E) the court said
(at 383F-H):
‘
A
compromise need not necessarily however follow upon a disputed
contractual claim. Any kind of doubtful right can be the subject
of a
compromise….Delictual claims are, for example frequently the
subject of a compromise. Nor need the claim be even
prima
facie
actionable in
law. A valid compromise may be entered into to avoid even a spurious
claim, and defendants frequently, for various
reasons, settle claims
which they know or believe the plaintiff will not succeed in
enforcing by action.
An agreement of compromise, in the
absence of an express or implied reservation of the right to proceed
on the original cause of action,
bars the bringing of proceedings
based on such original cause of action…. Not only can the
original cause of action no longer
be relied upon, but a defendant is
not entitled to go behind the compromise and raise defences to the
original cause of action when
sued on the compromise.’
See
also
Gollach & Gomperts (1978) (Pty) Ltd v
Universal Mills & Produce Co (Pty) Ltd and Others
1978
(1) SA 914
(A) at 921.
[13] It follows that
on the facts as they presently stand, the plaintiff has a claim
enforceable in law. The position may, however,
change if she fails to
prove the agreement of compromise at the trial. Therefore, the ruling
of the court below was correct.
[14] In the result
the appeal is dismissed with costs.
____________________
C
N JAFTA
JUDGE
OF APPEAL
CONCUR: ) SCOTT JA
) MTHIYANE JA
) MALAN AJA
) MHLANTLA AJA