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[2013] ZAGPPHC 112
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Kopano Bus Service CC v Maruma (A620/2012) [2013] ZAGPPHC 112 (6 May 2013)
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: A620/2012
DATE:06/05/2013
In
the matter between:
KOPANO BUS SERVICE
CC
.........................................................
APPELLANT
And
MATSIMELA
LYDIA
MARUMA
........................................................
RESPONDENT
JUDGMENT
RATSHIBVUMO
AJ:
1.
This is an appeal against a decision by a magistrate who dismissed a
special plea raised by the appellant against the respondent’s
action. The respondent, as plaintiff, had instituted action against
the appellant, as defendant, following bodily injuries sustained
when
she was in the process of alighting from a bus driven by the
appellant’s employee. The driver closed the door before
she had
completely alighted, which pushed her to the ground, during which she
sustained injuries. For the sake of convenience,
I refer to the
parties as the plaintiff and the defendant, respectively.
2.
The defendant raised a special plea that the plaintiffs action was
barred by
s 21
of the
Road Accident Fund, Act 56 of 1996
, which
provides,
“
No
claim for compensation in respect of loss or damage resulting from
bodily injury to or the death of any person caused by or arising
from
the driving of a motor vehicle shall lie—
(a)
against the owner or driver of a motor vehicle; or
(b)
against the employer of the driver.’'
The
defendant pleaded that, in those circumstances, the plaintiff lacked
locus standi to institute the action. The learned magistrate
dismissed the special plea without considering its merits, on the
basis that the point should have been raised by way of an exception.
The appeal is against that ruling. The crisp issue before us is
therefore whether a statutory bar can competently be raised by
way of
a special plea and if not so raised, whether the court is entitled to
ignore it for that reason.
3.
Although the learned magistrate did not consider the merits of the
special plea for the reasons stated above, he devoted much
focus in
his judgment criticising the defendant’s allegation that the
plaintiff lacked locus standi. This was an irrelevant
side issue. The
pertinent issue before court was the defendant’s plea that the
plaintiffs action was statutorily barred.
I now turn to consider the
relevant principles that should have informed the learned
magistrate’s judgment. The difference
between a special plea
and exception is that whereas a special plea raises some special
defence, not apparent ex facie the claim
and which either destroys or
postpones the operation of the cause of action; exception has the
same result but it is usually raised
if the defence is apparent from
the claim.
1
4.
From an overview of the authorities, it is clear that it is competent
for a statutory bar to be raised by way of a special plea.
In Sanan v
Eskom Holdings Ltd
2
,
the defendant raised a statutory bar, by way of an exception. The
plaintiff contended that the point should have been raised by
way of
a special plea. While the court accepted that proposition in
principle, it considered the merits of the exception as it
accepted
that there was overlapping between usage of exceptions and special
pleas
3
.
The court referred to several authorities in which a statutory bar
was raised either by way of exception or by special plea without
criticism by the courts since it did not render the defence fatal.
4
5.
Whether there is merits in the special plea raised is a different
question altogether. The court would have to interpret if the
conduct
by the defendant’s employee amounted to driving or not and also
whether the plaintiff was a passenger (being conveyed)
or not. There
are enough authorities that can guide the court in this regard.
5
The appeal is not before us on merits of the special plea, but on the
order by the magistrate dismissing it.
6.
It follows therefore that the learned magistrate misdirected himself
in taking a narrow view of the issue before him, and in
the process
ignoring the relevant. The appeal should succeed.
7.
In the result the following order is made:
1.
The appeal is upheld with costs.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
I
agree,
H
.EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
25
April 2013
Date
Heard: 23 April 2013
Judgment
Delivered: 06 May 2013
For
the Appellant: Adv. R Raubenheimer
Instructed
by: De Bruin Oberholzer Inc
Polokwane
Du
Plessis & Eksteen ING/INC Pretoria
For
the Respondent: Adv. M Mohale
Instructed
by: Ratshoene Attorneys
1
See
Brown
v
Vlok
1925 AD 56
and
Viljoen
v
Federated Trust Lid
1971 2 All SA 107
(O)
2
2010
(6) SA 638
(GSJ).
3
This
could be blamed on writers like
Voet.
In
Voet
"AD PANDECTAES" 46.1, exceptions are discussed in
great
detail. It appears, however, that
Voet
termed as exceptions, both "exceptions" in the way we
understand it as well as "special defences" or "special
pleas”. In several places he refers to exceptions in the wider
sense of the w'ord as if it did not matter whether it is
an
"exception" in the true sense of the word or a "special
plea" - See
Sanan
v Eskom Holdings Ltd supra at p 643.
4
See
also
Mankayi v Anglogold Ashanti
Ltd
2011 (3) SA 237
(CC).
5
See
for example
Wells and Another
v
Shield Insurance Co Ltd and Others
[1965] 3 Al! SA 132 (C).
A A Mutual
v
Sibothobotho
1981 4
SA 593
(A) and
Aetna Insurance
v
Minister of Justice
1960 3 SA 273
(A)