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[2014] ZAGPPHC 406
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C.A.S obo B.H and Another v Road Accident Fund (22533/2009) [2014] ZAGPPHC 406 (4 June 2014)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
CASE NO:
22533/2009
DATE: 4 JUNE 2014
In the matter
between:
C A S[...] SELF
AND
obo
B[...]-H[...]
................................................................................................................................
First
Plaintiff
D[...]
S[...]
....................................................................................................................................
Second
Plaintiff
and
ROAD
ACCIDENT FUND
…...........................................................................................................
Defendant
JUDGMENT
TEFFO,
J
:
INTRODUCTION
[1]
The first plaintiff, Mrs C[...] A[...] S[...], instituted an action
against the defendant in a personal and representative capacity
as
the mother and natural guardian of her two minor children, namely,
D[...] S[...] and B[...]-H[...] (who were born on [...] and
[...]
respectively) wherein she sought compensation for loss of support
arising from the death of her husband E[...] H[...] S[...]
{“the
deceased
’
)
who was involved in a motor vehicle collision that occurred on 6 May
2005.
[2]
The collision occurred on the Potchefstroom/Johannesburg road (N12)
in the district of Fochville between motor vehicle bearing
registration letters and numbers C[...]
(“the
insured vehicle”)
and
motor vehicle bearing registration letters and numbers N[...]
(
“
the
deceased's vehicle").
[3]
At the time of the collision the insured vehicle, a mechanical horse
and trailer was being driven by one R Morogo. Mr Lazarus
Tshifiwa
Masakona was a passenger in the insured vehicle and the deceased’s
vehicle was being driven by Mr E[...] H[...]
S[...]
(“the
deceased').
[4] The
Potchefstroom/Johannesburg road (N12) is a dual carriage way with a
tarred surface. At the place where the collision occurred
it runs in
a northerly/southerly direction with:
4.1 traffic bound
for Johannesburg travelling northwards and traffic bound for
Potchefstroom travelling southwards;
4.2 two north bound
lanes (one right and one left) and a single southbound lane;
4.3 the northbound
lanes are separated by a broken line. There is a solid barrier line
bordering the right hand northbound lane
on the eastern side thereof
and a broken line bordering the western side of the single southbound
lane.
[5] Immediately
prior to the collision:
5.1 the insured
vehicle was travelling in the left northbound lane;
5.2 the deceased’s
vehicle was initially travelling in the southbound lane behind other
traffic;
5.3 there was no
traffic travelling in the right northbound lane;
5.4 the deceased’s
vehicle then commenced an overtaking manoeuvre of the vehicle
travelling ahead of it by crossing into the
right northbound lane
whilst proceeding towards Potchefstroom;
5.5
before it could complete its overtaking of a vehicle in front of it
(“the
unidentified vehicle
”
),
the unidentified vehicle also commenced to overtake the vehicle in
front of it and it also started crossing into the right northbound
lane. In doing so it impeded the path of travel of the deceased;
5.6 in an attempt to
avoid colliding with the unidentified vehicle, the deceased crossed
further to his right hand side of the road
into the left northbound
lane where a head on collision occurred between the motor vehicle he
was driving and the insured vehicle;
5.7 the collision
occurred in the left northbound lane. The unidentified vehicle did
not stop at the scene of the collision.
[6] In May 2010 the
plaintiff amended paragraph 4 of her particulars of claim by
introducing the unidentified vehicle alleging that
in the alternative
its driver’s negligent driving caused the accident and in the
further alternative that the negligent driving
of both the insured
and the unidentified vehicles are to blame for the accident that
resulted in the deceased’s death.
[7] The plaintiff
further amended her particulars of claim in June 2010 by joining
D[...] S[...] (who had attained the age of majority)
as the second
plaintiff in the action and the quantum of the claims were also
amended.
[8] As a result of
the plaintiffs amendment of the particulars of claim in May 2010, the
defendant amended its plea in July 2010
by the insertion of a special
plea of prescription.
[9]
The parties prepared a statement of facts in terms of Rule 33(1) for
the trial court and argued their case as a stated case
on the basis
of the admitted facts. Accordingly no
viva
voce
evidence
was led.
FACTS
[10] On 12 September
2006 the plaintiffs attorneys submitted a bundle of documents which
consisted of the following to the defendant:
10.1 The statutory
Form 1 claim for compensation;
10.2 A copy of the
affidavit by the claimant;
10.3 A copy of the
antenuptial contract between the deceased and the first plaintiff;
10.4 Copies of the
birth certificates of the two children of the deceased;
10.5 A copy of the
deceased’s identity book;
10.6 A copy of the
deceased’s death certificate;
10.7 A copy of the
Officer’s Accident Report (OAR);
10.8 Copies of the
police docket;
10.9 A copy of the
letter of employment from the deceased’s employer;
10.10 Claimant’s
consent to access of police and medical documentation;
10.11 The special
power of attorney granted to claimant’s attorneys.
[11] Three claims
were lodged and received by the defendant. One by the First plaintiff
in her personal capacity as the wife and
surviving spouse of the
deceased and two in her representative capacity as the mother and
natural guardian of the two minor children
of the deceased.
[12]
Form 1 was signed by the first plaintiff on 14 February 2006.
Paragraph
2
of
form 1 requires the particulars of the motor vehicle from the driving
of which the claim arises. It consists of subparagraphs
(a) to (d).
The particulars of the insured vehicle have been completed under
subparagraphs (a) and (c) while subparagraphs (b)
and (d) were not
completed. Subparagraph (b) requires the name and address of the
owner of the vehicle at the time of the accident
and the words
“
not
applicable"
have
been completed. Subparagraph (d) which states
“
if
the identity of neither the owner nor the driver has been
established
’
,
state
“
(i)
any additional information about the motor vehicle; (ii) what steps
were taken to establish the identity of the owner of the
motor
vehicle
....
has been scratched out.
[13] From the way
paragraph 2 of form 1 was completed, it clearly indicates to the
defendant that the accident was caused by the
insured vehicle (the
truck) identified in subparagraph (a). Although the particulars of
the owner of the vehicle were not completed
in subparagraph (b), the
claimant was able to complete the particulars of its driver in
subparagraph (c). The claimant therefore
alleges on paragraph 2 of
form 1 that the driver of the insured vehicle described in
subparagraph (a)’s negligent driving
caused the accident.
[14] On 18 September
2006 the defendant acknowledged receipt of the claims.
[15] The entire
contents of the SAPS Fochville docket under MAS49/05/2005 was amongst
the supporting documents lodged with the defendant
pertaining to the
collision. Coupled with this, the docket also contained the affidavit
of Mr Lazarus Tshifiwa Masakona who was
a passenger in the insured
vehicle.
[16] The affidavit
of Mr Masakona reads as follows:
“
On
6 May 2005 at
approximately
(time
not recorded)
I
was with the driver of the truck travelling from Potchefstroom to
Johannesburg. On the road (N12) we got involved in an accident.
We
were on the right lane on our way while we saw traffic in front of us
on the other lanes. While busy driving there came an Isuzu
van
,
tried to overtake
the car in front of it He overtook and suddenly realised that the car
in front of him also overtook. The van came
to the wrong lane
straight to the truck. The driver of the truck tried to get out of
the road and it
was
already late. It
hit the truck and the truck faced where it came from. The head of the
truck got lost and it started to roll with
us ..."
[17] The OAR gave a
brief description of the accident as follows:
It
is stated that the truck
was
travelling towards
Johannesburg on the N12. The bakkie came from the opposite direction
,
tried to overtake
and so it went into the truck head
on.”
[18] Summons was
issued against the defendant on 10 April 2009. It was served upon it
and the action was defended.
[19] The matter was
set down for trial on 29 July 2010.
[20] On 17 May 2010
the plaintiffs gave notice of their intention to amend paragraph 4 of
their particulars of claim.
[21] The initial
paragraph 4 of the first plaintiffs particulars of claim read as
follows:
“
On
6 May 2005 and at
approximately 13h15 and at or near Fochville, a motor vehicle
collision occurred between motor vehicle C[...],
hereinafter referred
to as the insured vehicle and driven by R Morogo, hereinafter
referred to as the insured driver with motor
vehicle N[...], driven
by E Siepker, hereinafter referred to as the deceased.”
[22] In terms of the
notice of amendment paragraph 4 of the particulars of claim was
amended as follows:
“
On
6 May 2005 and at approximately 13h15 and at or near Fochville, motor
vehicle N[...], driven by E S[...], hereinafter referred
to as the
deceased, was forced into the lane of travel of vehicle C[...],
hereinafter referred to as the insured vehicle, and driven
by R
Morogo, hereinafter referred to as the insured driver, by an
unidentified vehicle
,
who executed an
overtaking manoeuvre in the path of travel of vehicle N[...].”
[23] Further to the
above a new paragraph numbered 6 was inserted to rely in the
alternative on the negligence of the driver of
the unidentified
vehicle. The paragraph reads as follows:
“
6.
In the
alternative, the collision was caused due to the negligent driving of
the driver of the unidentified insured vehicle, by
the unidentified
insured vehicle, who
was
negligent in one,
more or all of the following respects:
6.1 He/she failed
to keep a proper look-out;
6.2
He/she failed to
avoid the collision when, by the exercise of reasonable care and
skill, he/she could and should have done so;
6.3 He/she failed
to take into account the rights of other users of the road, and in
particular those of the plaintiff;
6.4 He/she
travelled at a dangerous and excessive speed in the prevailing
traffic circumstances;
6.5 He/she failed
to apply the brakes of his/her vehicle at all, alternatively properly
and/or timeously, further in the alternative,
he/she drove a vehicle
the brakes whereof were defective, whilst he/she could and should
have reasonably have been aware of such
defects;
6.6 He/she failed
to exercise and/or maintain any, alternatively proper control over
his/her vehicle;
6.
7
He/she failed to
adjust his/her driving sufficiently or at all to cater for the
conditions on the surface of the road;
6.8 He/she
omitted to drive with due skilldiligence, caution and/or
circumspection;
6.9 He/she
executed an overtaking manoeuvre at a time when it was unsafe to do
so;
6.10 He/she
forced the deceased’s vehicle into the lane of travel of motor
vehicle CPZ 295 FS;
6.11 He/she drove
in close proximity to the deceased’s vehicle;
6.12 He/she
failed to take into account the right of way of the deceased’s
vehicle;
6.13 He/she drove
too close to the middle of the road thereby causing an obstruction to
the deceased’s vehicle ”
[24] A new paragraph
numbered 7 was inserted to rely further in the alternative on the
combined negligence of the insured driver
and the unidentified
insured driver.
The paragraph reads:
“
7.
In the further
alternative, the collision was caused due to the combined, joint
and/or simultaneous negligence of the identified
insured driver
and/or the unidentified insured driver, each of whom was negligent in
one, more or all of the respects mentioned
above.”
[25] The defendant
denied all the allegations made in the initial paragraph 4 of the
plaintiffs particulars of claim and put the
plaintiff to the proof
thereof.
[26] It further
pleaded in the alternative that in the event of it being held by the
above Honourable Court that a collision occurred
as alleged by the
plaintiff and that the driver of the insured vehicle was negligent
(which is denied) then the defendant pleads
that such negligence was
not the cause of the collision. It pleaded that the collision was
caused by the sole negligence of the
deceased, he being negligent in
one or more or all of the following respects:
“
3.2.
1
he failed to keep a proper look-out;
3.2.2 he failed
to avoid the collision when, by taking reasonable or proper care when
he both could, and should, have done so;
3.2.3 he failed
to take sufficient account of the presence and/or alternatively
visibly intended actions of the insured vehicle;
3.2.4 he failed
to take due regard of the other road users, in particular, the
insured vehicle;
3.2.5 he failed
to exercise proper or adequate control over his vehicle;
3.2.6 he failed
to apply the brakes of his vehicle timeously, or at all;
3.2.7 he drove at
an excessive speed under the prevailing traffic conditions.
3.3 Further
alternatively, and in the event of the above Honourable Court finding
that the driver of the insured vehicle acted negligently
as alleged
(which is denied) and that such negligence contributed to the cause
of the collision (which is denied) then, and in
that event, the
Defendant avers that the deceased was also negligent and that his
negligence contributed to the cause of the collision."
[27]
After receipt of the plaintiffs notice of amendment of her
particulars of claim as referred to
supra
,
the defendant also filed its notice of amendment of its plea by
filing a special plea which reads:
“
1.
SPECIAL PLEA
1.1
In terms of the notice of amendment dated the 14 May 2010, Plaintiff
alleges in the alternative that a certain unidentified
motor vehicle
caused/or contributed to the accident on 6 May 2005
.
1.2 The defendant
submits that such claims are submitted in terms of
Section 17(1)(b)
of the
Road Accident Fund Act 56 of 1996
in terms whereof according
to the Regulations made in terms of
Section 26
of the Act
(regulation
2(3)
thereof), all claims submitted in terms of
Section 17(1)(b)
of
the Act shall irrespective of all legal disability become prescribed
within a period of two (2) years;
1.3
The defendant pleads that, in the event that the court finds that the
alleged unidentified motor vehicle
was
the sole cause of
the accident, in that event, Plaintiffs claim would have become
prescribed as against the unidentified motor vehicle
at the date of
the amendment.
WHEREFORE the
defendant prays that the Plaintiffs claim be dismissed with costs.
2.
MAIN PLEA
2.1 By amending
paragraph 3 thereof and in particular deleting paragraph 3.1 in toto
and replacing same with the contents that read:
The
defendant admits that a motor vehicle with registration letters and
numbers C[...] and driven by R Morogo as alleged
was
involved in an
accident with a motor vehicle with registration letters and numbers
N[...] driven by the deceased, however negligence
is denied,
Plaintiff is put to the proof thereof
[28] The issue for
determination is whether a claim for compensation lodged with the
Road Accident Fund (the Fund) established in
terms of the Road
Accident Fund Act 56 of 1996 (the Act) is rendered invalid because
the claim form conveys that it is a claim
under section 17(1)(a) of
the Act whereas it is evident from the accompanying documents that
such a claim is in terms of section
17(1)(b) of the Act.
[29] The defendant
contends that the failure by the plaintiffs to properly complete all
the particularity required in the claim
forms is fatal to all 3
(three) claims lodged with it and the additional information
furnished with the claim forms is incapable
of remedying the
shortcomings.
[30] It also
contends that the claims as lodged do not constitute claims in terms
of section 17(1)(b) of the Act read with section
24(1 )(a) of the
Act.
[31] By so saying
the defendant contends that in so far as reliance is placed on the
role which the unidentified motor vehicle played
in the collision,
the plaintiffs’ claims prescribed after the expiry of two years
of the death of the deceased.
[32] Although the
plaintiffs concede that paragraphs 2 and 4 of the claim form are
incomplete and silent as to the unidentified
vehicle which was
involved in the collision, they contend that the information supplied
in the claim form must constitute a claim
in terms of section 17 read
with section 24 and must be sufficient to enable the defendant to
decide whether to resist or settle
the claim or enter into settlement
negotiations.
[33] Counsel for the
plaintiffs submitted that the particulars not furnished in paragraphs
2 and 4 of each claim form concerning
the unidentified vehicle are
not fatal to the plaintiffs’ case in that all supporting
documents submitted with the claim
form should be taken into account
in deciding whether or not there has been substantial compliance. It
was contended that the information
contained in the police docket,
and particularly the affidavit of Mr Lazarus Masakona was sufficient
to invite the attention of
the defendant to the involvement of the
unidentified insured vehicle in the collision and to enable the
defendant to properly investigate
the claims.
[34] Whereas the
plaintiffs agree that in terms of section 24(1 )(a) of the Act a
claim for compensation and the accompanying medical
report shall be
set out in the prescribed form, which shall be completed in all its
particulars, they contend that the purpose
of the claim form is to
enable the defendant to enquire into the claim and investigate it.
[35]
After arguing the matter both counsels advised me that the issue
raised in this matter were also raised in the case of
Pithey
v Road Accident Fund
(A375/2010)
[2012] ZAGPPHC 158 (10 August 2012) which matter came before the full
bench of this division. I was further advised
that an appeal of the
full bench decision was pending in the Supreme Court of Appeal (SCA).
I was then requested not to decide
on the matter until the SCA had
pronounced its judgment. I reserved judgment on 7 November 2012 and
after the SCA judgment was
handed down in April 2014 I then finalized
my judgment.
[36] The full bench
of this division heard the matter after Sapire AJ upheld the
defendant’s special plea to the effect that
no claim for
compensation in terms of section 17(1) (b) of the Act was lodged with
the defendant on the plaintiffs behalf prior
to summons being issued.
The facts in this matter are briefly summarised as follows: Ms Pithey
(the appellant) instituted an action
against the Fund in the South
Gauteng High Court, Johannesburg, for damages she suffered as a
result of a motor vehicle collision
which occurred on 29 November
2004. She alleged in her particulars of claim that on 29 November
2004 on the N12 national road between
Westonaria and Alberton, a
collision occurred between a motor vehicle of which she was the
driver and a truck driven by a Mr M
Ntshangase. She further alleged
that the sole cause of the said collision was the negligence of the
driver of an unidentified blue
minibus which was itself not directly
involved in the collision. She was unable to establish the identity
of either the owner or
the driver of the blue minibus at the material
time. The claim fell under section 17(1) (b) of the Act. The Fund
defended the action
and filed a special plea and a main plea
disputing liability. In the special plea the Fund averred that the
appellant’s claim
was unenforceable because the appellant had
not lodged a claim in respect of an unidentified vehicle within a
period of two years
from the date on which her claim arose, as
required in terms of Regulation 2(3) of the regulations in terms of
section 26 of the
Act.
[36] At the trial
before the court of first instance (Sapire AJ) the issue for
determination was whether the appellant’s claim
as set out in
her claim form read with the documents she lodged with the Fund,
constituted a valid claim in terms of the Act and
the regulations
promulgated thereafter.
[37] The appeal was
dismissed with the full bench holding that the appellant failed to
appreciate that her claim form conveyed the
incorrect information to
the respondent. It also held that even if the most lenient approach
was to be adopted to the manner in
which the claim was submitted, the
special plea was and remains unanswerable. The full bench held that
the delivery of the form,
duly completed, has always been a
peremptory requirement. It was further held that the distinction
between claims submitted in
terms of section 17(1 )(a) on the one
hand, and section 17(1 )(b) on the other has always been regarded as
fundamental and therefore
the correct identification of the claim to
be instituted either as one in which the insured vehicle is
identified, or as one in
which the opposite is the case, must be
regarded as peremptory. Accordingly the court held that the
unambiguous identification
of a claim as one that arose as a result
of an identified vehicle cannot be substituted by the filing of a
contradictory affidavit
as one caused by an unidentified vehicle.
[38]
The appellant successfully appealed to the SCA in
Pithey
v Road Accident Fund
(3/9/13)
[2014] ZASCA 55
(16 April 2014). In para [25] of its judgment, the
SCA held that:
“
It
is true that there is, in terms of the Act and regulation 2(3), a
fundamental distinction between a ciaim under s 17(1) (a) and
one
under s 17(1)(b). This cannot, however, be taken to mean that even
when the Fund, within the prescribed two year period is
in possession
of information which a claimant is statutorily obliged to supply and
which
,
when read in
tandem with the claim form, which in the circumstances of this case
the claimant clearly intended, reveals that the
claim really relates
to an unidentified vehicle, the Fund is entitled to repudiate the
claim on the basis that no valid claim had
been made. Nor ought the
Fund to benefit from its own failure to clarify with minimal time,
effort and expense, whatever confusion
the claim form and the
attached documents revealed. This is not a case where no information
was
supplied to the
Fund in relation to the claim in terms of s 17(1)(b). At worst, for
the appellant
,
she supplied
conflicting information which could be undone with relative ease.
Significantly, it has not been suggested that there
is even a whiff
of a fraudulent or made-up claim.”
[39] The order of
the full bench and that of Sapire AJ was set aside and replaced with
an order dismissing the special plea.
[40] The crux of
this decision is that while it is crucial to properly identify
whether a claim falls under s 17(1 )(a) or (b),
in a claim form (form
1) the furnishing of contradictory information in the documents that
accompany the claim form, does not invalidate
the claim where the
category of the claim can still be determined.
[41] In the present
matter the plaintiffs supplied the defendant with the claim form
together with supporting documentation before
the expiry of the two
year period as contemplated in Regulation 2 of the regulations, from
the date on which the cause of action
arose. Even if the information
on the claim form refers to an identification claim as against an
unidentification claim (a claim
where neither the owner nor the
driver of the vehicle has been identified) as soon as the Fund had
received the supporting documents,
in particular, the sworn statement
of Mr Lazarus Masakhona and the OAR, the Fund should have
investigated the matter and alerted
the plaintiffs of the discrepancy
especially taking into account that the Fund did not object to the
validity of the claim. In
as much as full completion of the claim
form is peremptory, documents that accompanied the claim form cannot
be ignored. It is
my view that the claim form cannot be read in
isolation of the supporting documents that were lodged with it. The
Fund can therefore
not benefit from its failure to investigate and
enquire about the claim after receipt of the claim forms and the
supporting documents
that were attached to it. It would not be in the
interest of justice to penalise the plaintiffs for its failure to
identify the
unidentified insured vehicle on the claim form while the
supporting documents mention it. Indeed it would have been different
if
the supporting documents did not mention the unidentified vehicle
at all.
[42] The defendant’s
special plea of prescription in this matter is therefore without
merit.
[43] In the result I
make the following order
[43] In the result I
make the following order
43.1 The defendant’s
special plea is dismissed with costs.
M J TEFFO
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
COUNSEL FOR THE
PLAINTIFFS: ETIENNE BOTHA
INSTRUCTED BY:
SAVAGE JOOSTE & ADAMS INC
COUNSEL FOR THE
DEFENDANT: J P NEL
INSTRUCTED BY:
MOTHLE JOOMA SABDIA INC
DATE OF HEARING: 07
NOVEMBER 2012
DATE OF JUDGMENT: 04
JUNE 2014