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2024
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[2024] ZANCHC 29
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Karsten and Another v Road Accident Fund and Others (1962/2012) [2024] ZANCHC 29 (22 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
1962/2012
Heard: 25 January 2024
Delivered: 22 March 2024
Reportable:
YES/
NO
Circulate
to Judges: YES/
NO
Circulate
to Regional Magistrates: YES/
NO
Circulate
to Magistrate: YES/
NO
In
the matter between:
MAGDALENA
KARSTEN
First Plaintiff/Applicant
WILLOW-JEAN
BERNADETTE KARSTEN
Second Plaintiff/Applicant
and
ROAD
ACCIDENT FUND
First Defendant/Respondent
POSTNET
SOUTHERN AFRICA (PTY) LTD
Second Defendant/Respondent
THE
SOUTH AFRICAN POST OFFICE SOC LTD
Third Defendant/Respondent
Coram:
Tyuthuza AJ
JUDGMENT
Tyuthuza
AJ
INTRODUCTION
1.
Ms Magdalena
Karsten and Ms Willow-Jean Bernadette Karsten, the first and second
plaintiffs (the plaintiffs) issued summons against
the First
Defendant, the Road Accident Fund (RAF), for damages relating to a
motor vehicle collision. In the alternative, the plaintiffs
claim
damages against the second and third defendants, Postnet Southern
Africa (Pty) Ltd (Postnet) and South African Post Office
SOC Limited
(Post Office) in the event that the court finds the plaintiffs’
main claim against the first defendant was not
valid and/or timeously
lodged, for a breach of duty of care.
2.
In response to
the plaintiffs’ claim the RAF, has raised a special plea of
prescription in that:
2.1
In terms of
section
23 (1) and 23(4) of the Road Accident Fund Act 56 of 1996 (the Act),
the right to claim compensation from the first defendant,
in the case
where the identity of the driver or the owner of the motor vehicle
from whose driving the loss or damage arose is known,
becomes
prescribed upon the expiry of three years from the date upon which
the cause of action arose.
2.2
The plaintiffs’ claim arose on the 27th of April 2008. The
last
day for the lodging of these claims was thus the 26th of April
2011.
2.3.
The claims were posted by registered mail on 26th April 2011.
2.4.
The plaintiffs failed to submit a claim to the RAF within three years
from the date
upon which the cause of action arose.
3.
In the
replication to the special plea the plaintiffs plead that they
complied with the provisions of sections 23(1), (4) and 24(1)
(b) of
the Act in that they duly lodged their claims by registered mail on
26 April 2011. The plaintiffs plead that the RAF
is therefore
barred from raising prescription as a defence.
4.
The
matter has been set down to hear the special plea. Prior to the
hearing, the Post Office filed a notice on 17 January
2024 wherein it
advised that it would raise a point in law in relation to section
131(4)(a) of the Companies Act
[1]
,
on the basis that it has been placed under business rescue. I
propose to consider this point first.
SECTION
133 MORATORIUM
5.
The
question arising for consideration under this head is whether the
plaintiffs’ claim against the Post Office is precluded
by the
general moratorium on
legal
proceedings against companies under business rescue in terms of
section 133(1)
of the
Companies Act 71 of 2008
(the
Companies Act).
6.
In
terms of
section 133
(1) of the
Companies Act, during
business
rescue proceedings, no legal proceeding, including enforcement
action, against the company, or in relation to any property
belonging
to the company, or lawfully in its possession, may be commenced or
proceeded with in any forum, except
inter
alia
— with the written
consent of the business rescue practitioner or the court’s
leave.
7.
It is common
cause that the Post Office was placed under business rescue by the
Gauteng Division on 10 July 2023. The third
defendant submits
that as a result of the order that places it under business rescue,
the court lacks jurisdiction to entertain
this matter or to grant the
relief sought against it, regard being had to
section 133
(1) of the
Companies Act.
8.
It
is so that,
despite being aware of the court order issued in July 2023, the
plaintiffs have not obtained either the written consent
from the
business rescue practitioner or made an application for leave of the
court to commence or proceed with proceedings against
the Post
Office.
9.
Mr Ali for the
Post Office, submitted that the matter should not have been enrolled.
Instead, he argued, the appropriate application
to lift the
moratorium should have been brought or the consent of the business
rescue practitioner sought. He further contended
that the
moratorium is not unimpeachable and that the plaintiffs can approach
the court to uplift same but have failed to do so.
ANALYSIS
10.
The Post
Office was joined in these proceedings in March 2016, pursuant to an
application by the plaintiffs for the joinder of Postnet
and the Post
Office. The plaintiffs base their claim against the Post Office
on negligent misrepresentation because it permitted
Postnet to use
its official registered postage slips. In so doing, the Post
Office misrepresented to the public that Postnet
was the Post
Office’s lawful agent. As a result of the Post Office’s
wrongful and negligent breach, the plaintiffs
suffered damages for
which Postnet and the Post Office are jointly and severally liable.
In the alternative, the plaintiffs
claim an amount of
R115,295.20 from Postnet and the Post Office.
11.
As
already alluded to,
section 133
of the
Companies Act makes
provision
for a general moratorium on legal proceedings commenced or proceeded
with against a company whilst the company is under
business rescue.
It is not in dispute that when the present proceedings were
instituted against the Post Office it was not
in business rescue.
I
t
is trite that although there is an automatic moratorium on legal
proceedings against the company in business rescue, this is not
an
absolute bar and it merely serves as a procedural limitation on a
party’s rights of action.
[2]
12.
In
Timasani
(Pty) Ltd (in business rescue) and Another v Afrimat Iron Ore (Pty)
Ltd
(91/2020)
[2021] ZASCA 43
(13
April 2021), the following was stated at paragraph 25:
“
Section 133
must be read as a whole: the different subsections of a provision
dealing with the same subject matter must not be considered in
isolation but read together so as to ascertain the meaning of the
provision.
Section 133(1)
is a general moratorium provision
that applies in relation to the assets and liabilities of the company
at the stage when business
rescue comes into effect. It
protects the company against legal action in respect of claims in
general, save with the written
consent of the business rescue
practitioner and failing such consent, with the leave of the court.
This Court has stated
the purpose of
s 133(1)
as follows:
‘
It
is generally accepted that a moratorium on legal proceedings against
a company under business rescue is of cardinal importance
since it
provides the crucial breathing space or a period of respite to enable
the company to restructure its affairs. This
allows the
practitioner, in conjunction with the creditors and other affected
parties, to formulate a business rescue plan designed
to achieve the
purpose of the process.
”
13.
The plaintiffs did
not invoke
section 133(1)
of the
Companies Act in
order to proceed
with the matter against the Post Office. It goes without saying
that without the consent of the practitioner
or the leave of the
court, the present action against the Post Office cannot proceed.
The upshot of this is that
the
point
in limine
in relation to the Post Office is upheld. I now turn to
consider the special plea of prescription
raised by the RAF
.
SPECIAL
PLEA
14.
Ms Valerie Botes (Ms
Botes), the plaintiffs’ instructing attorney, testified on
their behalf. She testified that the
plaintiffs approached her
offices in June 2008 and instructed her to institute a loss of
support claim against the RAF. She lodged
the claim on 26 April 2011
at the Postnet Midrand, where an official from Postnet assisted her
and completed the registered slip.
Ms Botes is of the view that
the plaintiffs’ claim did not prescribe in that she received
proof of lodgement.
15.
Under
cross-examination, she testified that she first consulted with the
plaintiffs on 08 June 2008. The doctor completed
the MMF1 form
on 21 April 2011 and that the claim was ready for lodgement from 22
April 2011. She intimated that she was
informed at Postnet that
the documents would reach the post office on the same day before
15:00. She further explained that
she had made use of the
services of Postnet before and none of the documents so previously
sent were repudiated. She testified
that she did not insist on
a stamp because she had received a tracking number and the receipt.
16.
The RAF called one
witness, Mr Adams, its employee engaged as the Acting Team Leader:
Litigation Cape Town Office. He has
been in the employ of the
first defendant for six years as a senior claims handler and in
February 2022 was appointed as the Acting
Team Leader. He
testified that he has had knowledge of the claim since June 2022.
According to him, the claim is an
identified claim as
contemplated in section 17(1) of the Act in that the identity of the
insured driver was established by the
plaintiffs. Mr Adams
testified that the accident occurred on 27 April 2008 and that the
plaintiffs had a period of three
years within which to lodge their
claim, and thus the last day to lodge the claim was 26 April 2011.
17.
Mr Adams stated that
the plaintiffs lodged the claim by sending it to the Cape Town Office
by registered post. He intimated
that the first defendant
determines the date of the lodgement of the claim, by looking at the
date on which the sender posted the
mail from the local post office.
The date of the registered slip was the 26
th
of April 2011 whereas the date on the post slip was not an indication
of the date of the lodgement as the slip is completed by
the sender.
He indicated that the post office would usually stamp the post
slip. He testified that the date on the
envelope, which the
first defendant receives, is the date upon which the document is sent
to the Fund. Under cross-examination,
he said that the date of
28 April 2011 is the date on which the claim was lodged.
Consequently, the claim was lodged out
of time and
unenforceable. The plaintiffs were informed.
ANALYSIS
18.
Section
17
of the
Road Accident Fund Act makes
the RAF liable to pay
compensation in respect of claims arising from the driving of a motor
vehicle where either the identity of
the owner or driver has been
established
(section 17(1)(a))
or where it has not
(section
17(1)(b)).
[3]
19.
Section 23 of the Act
provides as follows:
“
23.
Prescription of claim
.
—
(1)
Notwithstanding
anything to the contrary in any law contained, but subject to
subsections (2)
and
(3)
,
the right to claim compensation under
section 17
from
the Fund or an agent in respect of loss or damage arising from the
driving of a motor vehicle in the case where the identity
of either
the driver or the owner thereof has been established, shall become
prescribed upon the expiry of a period of three years
from the date
upon which the cause of action arose
”
.
20.
A claim for
compensation referred to in section 17 of the Act shall be sent or
delivered to the Fund in accordance with the provisions
of section
24, by registered post or delivered by hand at the agent’s
registered office or local branch office.
21.
Section 24 of the Act deals with the
procedure for the lodgement of claims and states as follows:
“
24.
Procedure.
—
(1)
A claim for compensation and accompanying medical report under
section 17 (1) shall—
(a)
be set out in the prescribed form, which shall be completed in
all its particulars;
(b)
be sent by registered post or delivered by hand to the Fund at its
principal, branch or regional office, or to the agent who in terms
of
section 8 must handle the claim, at the agent’s registered
office or local branch office, and the Fund or such agent shall
at
the time of delivery by hand acknowledge receipt thereof and the date
of such receipt in writing.
”
22.
What
arises for consideration is the question whether the claim was lodged
on 26 April 2011 or 28 April 2011.
Section
7 of the Interpretation Act
[4]
,
provides-
“
7.
Meaning of service by post
. —
Where any law
authorizes or requires any document to be served by post, whether the
expression ‘serve’, or ‘give’,
or ‘send’,
or any other expression is used, then, unless the contrary
intention appears, the service shall be deemed to be effected by
properly
addressing, prepaying, and posting a registered letter
containing the document,
and
, unless the
contrary is proved
, to have been effected at the time at
which the letter would be delivered in the ordinary course of post.
”
(own emphasis)
23.
In
terms of section 24 of the Act, a claim is lodged with the RAF once
it is sent by registered post or delivered by hand.
It
has been held that the word “
sent
”
in section 24(1)(b) must be given its ordinary grammatical meaning.
It is not to be confused with delivery. Thus,
the crucial
date is that on which the relevant documents were dispatched in the
post.
[5]
24.
The plaintiffs’ receipt and
registered slip indicates that the claim was lodged on 26 April 2011
and not 28 April 2011 as
alleged by the RAF. They thus
established that the claim was sent to Postnet on 26 April 2011. It
is the sending of
the document that amounts to delivery and not the
receipt thereof. As to when the RAF received the post is, in my
view, irrelevant.
25.
In
that premise, I find that the plaintiffs did comply with the
provisions of Section 24 of the Act and that the claim was lodged
on
26 April 2011. The plaintiffs’ claim has thus not
prescribed as envisaged in terms of section 23 (1) and 23 (4)
of the
Road Accident Fund 56 of 1996.
26.
I make the following order:
1.
The proceedings against the third
defendant,
South
African Post Office SOC Limited,
are suspended pending the finalisation
of the business rescue proceedings against the third defendant.
2.
Ms Magdalena Karsten
and Ms Willow-Jean Bernadette Karsten, the first and second
plaintiffs,
are to pay the third
defendant’s costs for 25 January 2024.
3.
The Road Accident Fund’s
special plea of prescription is dismissed with costs.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Plaintiff:
Adv
N Snellenburg SC
On
the instruction of:
Stiglitz
Botes Attorneys
c/o
Van der Wall Inc.
On
behalf of the First Defendant:
Ms
R Rabie
On
the instruction of:
Office
of the State Attorney
On
behalf of the Third Defendant:
Adv
N.S.H. Ali
On
the instruction of:
Madhlopa
& Thenga Inc.
c/o
Lulama Lobi Inc
[1]
71
of 2008
[2]
Commissioner
for the South African Revenue Services v Louis Pasteur Investments
(Pty) Ltd (in provisional liquidation) and Others
(2022)
JOL 53784
(GP);
2022 (5) SA 179
(GP) at paras 55-56.
[3]
17.
Liability of Fund and agents
.
(1)
The Fund or an agent shall—
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a
motor vehicle where the
identity of the owner or the driver thereof has been established;
(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:
Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in
subsection
(1A)
and shall be paid by way of a lump sum.
[4]
33
of 1957
[5]
Saner SC (2019)
Prescription
in South African Law 4-58; See also
Hatang
v RAF
[2006] JOL 17392
(T)