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2024
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[2024] ZAFSHC 187
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Taaibos v Road Accident Fund (2211/2023) [2024] ZAFSHC 187 (20 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Reportable/Not
reportable
Case
no: 2211/2023
In
the matter between
ZANDILE
EDWIN TAAIBOS
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
Heard:
19 March
2024
Delivered:
20
June 2024
Summary:
Prescription in terms
of Section 23(3) of
Road Accident Fund Act 56 of 1996
-
whether claim has become prescribed
ORDER
1.
The
Defendant's
special
plea
of
prescription
in
terms
of
Section
23(3)
of
the
Road Accident
Fund Act 56 of 1996
is upheld
.
2.
The
Plaintiff's claim is dismissed costs, including the costs of counsel
on scale A.
JUDGMENT
LOUBSER
PJ
[1]
On 7 September
2012
the Plaintiff
sustained
bodily
injuries
when
the vehicle
in which he
was
a
passenger
,
was
involved
in
an
accident
with
another
vehicle
at
Verkeerdevlei in the Free State Province
.
The Plaintiff
then proceeded to lodge a claim for the damages he suffered as a
result of his injuries, with the Defendant on 7 September
2015.
[2]
Following
receipt of the claim
,
the
Defendant conceded the negligence alleged
,
and
on 19 March 2018 the parties signed an agreement in terms of which
the Defendant undertook to pay the Plaintiffs future hospital
and
medical treatment and related services and goods, as envisaged by
Section 17(4)(a)
of the
Road Accident Fund Act.
[1
]
In
its offer that accompanied this agreement, the Defendant stated that
'if this offer was made after prescription of the claim
,
it
will be deemed to be a bona fide error
,
and
acceptance thereof will not be enforceable'.
[3]
The Plaintiff
thereafter issued summons aga
i
nst
the Defendant, claiming his past medical and hospital expenses, his
past and future loss of income and general damages to the
total sum
of R3 400 000
.
The summons
was served on the Defendant on 10 May 2023. Section 23(3) of the RAF
Act, however
,
provides that
'
no
claim which has been lodged
.
.
.
shall
prescribe before the expiry of a period of five years from the date
on which the cause of the action arose
'
.
It speaks for itself that the Plaintiff
'
s
summons should have been served on the Defendant before 7 September
2017 to avoid prescription of his claim
.
It further
speaks for
i
tself
that the Plaintiff
'
s
claim had already become prescribed when the agreement in terms of
Section 17(4)(a) was signed by the parties.
[4]
It was
therefore not unexpected when the Defendant included a special plea
of prescription in its plea filed in response to the
Plaintiffs
summons
.
The
parties have agreed that this special plea must be decided first by
the Court
,
and
separate from the other issues arising from the pleadings. The Court
is, in the premises
,
only called
upon to decide whether the Plaintiffs claim had become prescribed by
the late filing of the summons
.
[5]
Mr Pela,
appearing for the Plaintiff, submitted that the special plea should
be dismissed with costs by reason of the fact that
the Defendant had
failed its duty of care towards the Plaintiff. He contended that the
Defendant had waived its right to rely on
prescription when it
decided to continue engaging with the Plaintiff even after the matter
has become prescribed. Here Mr Pela
referred to the Section 17(4)(a)
undertaking that was provided by the Defendant. The Defendant should
have warned the Plaintiff
at the time that his claim had already
become prescribed
.
The Defendant
should not be allowed to hide behind its own negligence,
he submitted.
[6]
In
this respect Mr Pela relied on the judgement by Williams, J in
Lottering
v Chief Executive Officer of the Road Accident Fund N.O. and
Another
[2]
.
In
that matter it was found that the RAF had breached its legal duty of
care towards the plaintiff by,
inter
alia,
failing
to advise her over a period of years that her claim would prescribe
and that she should consult an attorney. The Court found
that the
RAF, who featured as the Second Defendant, should not be allowed to
hide behind its own negligence. By its conduct
,
the
Second Defendant has waived its right to rely on prescription, it was
found.
[7]
Now a proper
reading of the
Lottering-judgment
will show
that the facts and circumstances of that matter differs materially
from the facts and circumstances of the present case.
Firstly, in
Lottering
the
Plaintiff pleaded in the alternative as against both the Defendants a
breach of a duty of care. Such a cause of action was never
pleaded in
the present case. Secondly, the Plaintiff in Lettering filed a
replication to the plea of prescription, whereby it pleaded
waiver by
the RAF of its right to raise prescription as a defence to the
Plaintiffs claim
.
In the present
case, the Plaintiff filed no replication at all. Thirdly, the
Plaintiff in
Lottering
presented
evidence in Court to substantiate her replication and her plea of
breach of a duty to care
.
In
the
present
hearing,
no
evidence was
presented by the
Plaintiff.
[8]
It
follows that in
Lottering
a
proper foundation was laid in the Plaintiffs pleadings for the
findings that were eventually made by the Court. In the present
case,
no such foundation existed for the contentions made on behalf of the
Plaintiff. It is trite that a party has a duty to allege
in the
pleadings the material facts upon which it relies. A plaintiff is not
allowed to plead a particular case and then seek to
establish a
different case at the trial. It is also not permissible for a Court
to have recourse to issues falling outside the
pleadings when
deciding a case
[3]
.
[9]
In my view,
all that remains is that Section 23(3) of the Act clearly provides
that a claim against the RAF shall prescribe at the
expiry of a
period of five years from the date on which the cause of action
arose. The cause of action arises on the date of the
accident.
[10]
I
find support in this respect in the judgement of Matshaya, AJ in this
Division in the case of
Mochekoane
v Road Accident Fund
[4]
.
In
that case the plaintiff also failed to plead a lack of duty of care
on the part of the RAF, and no evidence was presented by
the
plaintiff. The plaintiff also did not file any replication to the
plea of prescription in that case
.
The
learned Acting Judge came to the conclusion that there is no room for
condonation of a claim that has been lodged out of time
in terms of
Section 23(3) of the Act, and that the RAF therefore does not have
the powers to waive prescription of a claim
.
[11]
In
concluding as such
,
the
learned Acting Judge relied on what was stated by the Constitutional
Court in
Road
Accident Fund and Another v Mdeyide
[5]
,
namely
that the RAF Act 'makes no provision for condonation of a late claim,
either based on the ignorance of the claimant, or for
any other
reason'
.
[12]
In the
premises, the Defendant's plea of prescription has to succeed. As for
costs
,
I
can find no reason why the general rule that costs follow the result,
should not apply.
[13]
The following
orders are made:
1.
The
Defendant's special plea of prescription in terms of Section 23(3) of
the Road Acc
i
dent
Fund Act 56 of 1996 is upheld.
2.
The
Plaintiff's claim is dismissed costs
,
including the
costs of counsel on scale A.
PJ
LOUBSER, J
Appea
r
ances
For
the Plaintiff
:
Adv.
T. Pela
Instructed
by
:
Mzi
l
a
Nhlapho
Attorneys
Bloemfonte
i
n
For
the Defendant:
Ms
J
.
Gouws
Instructed
by
:
The
State Attorney
Bloemfontein
[1]
Act
56 of 1996
[2]
[2021]
ZANCHC 36
[3]
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para
11
[4]
[2021]
ZAFSHC 261
[5]
2011(2)
SA 26 (CC) at para 20