SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 7316/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REV ISED.
DATE: 12/2/25
SIGNATURE:
In the matter between:
THERESA RAMATSIMELE MAKGATI PLAIN TIFF
And
ROAD ACCIDENT FUND DEFENDANT
________________________________________________________________________
JUDGMENT
________________________________________________________________________
MULLER J:
The plaintiff instituted action against the RAF1 (main and alternative claims ) to recover
damages for inter alia breach of contract for allowing a claim instituted by the plaintiff to
prescribe in terms of section 23 in its hands. The claim for damages has had it origin in the
injuries sh e sustained in a motor vehicle collision on 22 March 2016 at lenting crossing
when she was a passenger in a motor vehicle. The particulars of claim make neither
mention of the name of the driver (s) of the motor vehicle (s) nor whether the y known or
unknown to the plaintiff.
A combined summons was issued by the plaintiff on 7 July 2022 and was served on the
RAF. The main and the alternative claims are based on the allegation that the claim has
prescribed after the plaintiff and the RAF entered into an agree ment that the RAF shall
assist the plaintiff to lodge her claim and that the RAF negligently breached the mandate
given to it to advise her when the claim will become prescribed and what steps she should
take to prevent the claim from prescription.
In ans wer to these allegations the RAF d elivered a special plea that claim 12 has prescribed
since the summons was not issued within a period of five year as required by section 23(3)
of the RAF Act .3
The plaintiff in a reply delivered to the special plea averr ed that the plaintiff terminated the
mandate of the RAF to deal directly with the claim on 5 July 2022 when the summons was
issued.4 The claim could therefore not have prescribed in the hands of the RAF. The
plaintiff pleaded that it was held in Lottering v RAF and Another :5
“that where the RAF represents to a claimant that it will assist in settling a claim
without external legal advice, a greater duty of care rests upon the RAF to take all
reasonable steps to prevent claims prescribing in its hands which steps would
include responding to the claimant’s enquiries, bringing the matter to finality and
1 The defendant. (Hereinafte r referred to as the RAF ).
2 Referring to the main claim in the particulars of claim.
3 Act 56 of 1996.
4 The plaintiff signed a power of attorney on 22 April 2022 in terms of which the attorney was appointed to act
on her behalf.
5 (2021) ZANCHC 36 (13 Au gust 2021).
informing the claimant about the rejection of prescription of the claim. In the absence
of evidence by the defendant to take reasonable steps to contact the pla intiff or to
properly process the cla im, it would be unjust for the defendant to benefit from the
inaction on its part.”
When the matter was called the court enquired whether the compulsory pre -trail conference
was held prior to the trial date. The minut e is replet e with references to a claim based on
the provisions of section 17. After a totally inadequate explanation was proffered for the
failure to comply with their obligation to do so , the court directed that the legal
representatives hold a pre -trial conference that afternoon dealing specifically with the
special plea. They were also informed that the court will only entertain the special plea the
following day , and not the merits.
The following da y a pre -trial minute was presented . The special plea was not addressed as
requested. Instead it was recorded on behalf of the plaintiff that the claim has been settled
100% in favour of the plaintiff. The defendant denied the allegation and recorded that it is
unaware of such a settlement.
The plaintiff als o placed on record that :6
“[On] or about 27 March 2016 and at approximately at Around 21H00 , at Lenting
Crossing Lebowakgomo, Limpopo Province I was a passenger in a motor vehicle
bearing registration letters and numbers D […] a white Polo driven by RB MAELANE
(“the insured driver”) collided with a Blue Toyota bearing registration letters and
numbers C […] driven by JM MAJALEFA (“the second insured driver”).
It was also record ed that both the merits and quantum were in dispute. However, the
follow ing was added to the minute in manuscript :
“The plaintiff records that the aspect of liability an undertaking were settled as part
of direct claim settlement on the 4th of May 2017.”7
6 Under the heading “NATURE OF ACTION”.
When the court endeavoured to determine wh at was agreed by the parties the legal
representatives confirmed when questioned that they agree on the date of the collision; the
date that the claim was lodged; the date that the summons was issued and date of service
of same .
The legal representative of the RAF also agreed that an undertaking referred to in the
handwritten manuscript was issued by the RAF . There was , therefore , no dispute that the
RAF issued such an undertaking in terms of section 17(4)(a) in relation to the Plaintiff on 4
May 2017 in respect of bodily injuries th at she sustained in a motor vehicle accident that
occurred on 27 March 2016 at or near Lenting Road Limpopo Province.
Counsel for the plaintiff applied for an amend ment to the reply to the special plea to
introduce the allegation that the RAF admitted li ability by issuing the undertaking . The RAF
objected and insisted on proper notice of the amendment in terms of rule 28 . Counsel
elected during the argument to abandon the application.
The RAF , as far as the special plea was concerned, closed its case wi thout calling any
witnesses . The plaintiff was called to testify. She testified that she was a passenger in a
vehicle when the vehicle was involved in an accident on 22 March 20 16. She regained
consciousness three days later in hospital. She lodged a claim at the offices of the RAF in
Polokwane in 2016. She was never informed that she needed to take steps within a period
of time. She does not know the meaning of pr escription. According to her, prescription
refers to the document she needed to get medicine. She said she was told that there is an
offer R3mil. No document was presented or shown to her by the staff of the RAF. She
agreed verbally to the offer made. She was taken to Pretoria in February 2017 where she
was put up in a hotel. (It was clear that she enjoyed her first visit to Pretoria (presumably to
be examined by professionals appointed by the RAF)). She was informed that she will be
updated an d should be patient. She waited four years until her son in 2022 arranged for her
to see her an attorney. S he instructed her current attorney on 22 Aril 2022 when she signed
a power of attorney to enable him to institute action to recover the damages she sustained
7 Under the heading “ISSUES IN DISPUTE.”
in the motor vehicle accident . She stated in cross -examination that she consulted a lady
with the name of Mapula at the offices of the RAF in Polokwane . She was told what
documents were required and that she needed to pay R750 to obtain the hospital records.
She did not attend the offices of the RAF between 2019 and 2022 because she was told to
relax and wait for the RAF to respond. It was her son who suggested that she consult with
an attorney. That concluded the case of the plaintiff.
The RAF persisted during argument with their contention that the claim has prescribed in
terms of section 23(3) due to the failure by the plaintiff to institu te action before expiry of the
five year period.8 The plaintiff, on the other hand, placed reliance on the judgment of
Lottering supra.9
Section 23 provides:
“(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 t he owner
thereof has been established, shall become prescribed upon the expiry of a
period of three years from the date upon which the case of action arose.
(2) Prescription of a claim for compensation referred to in subsection (1) shall not
run against –
(a) a minor;
(b) any person detained as a patient in terms of any mental health legislation; or
8 The attorney for the RAF despite being requested for authority for the proposition simply stated that it is
clear from a reading of section 23.
9 Counsel for the plaintiff was unable to supply the court with a copy of the unreported judgment. He was only
in possession of a summary of the said judgment. Nor was he able to address the court adequately on the
contents of the judgment. Not one of the representatives r eferred to or has drawn the attention of the court to
the important constitutional court judgments on the subject referred to in this judgment.
(c) a person under curatorship.
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of
section 17(4)(a) or 24 shall pres cribe before the expiry of a period of five years
from the date on which the cause of action arose.”
It is admitted in the reply to the special plea that the motor vehicle accident occurred on 22
March 2016.10 It is also common cause:
(a) that a claim was lod ged with the RAF on 26 August 2016;
(b) that the RAF acknowledged lodgement of the claim on 5 September 2016;
(c) that an undertaking in terms of section 17(4)(a) was issued by the RAF on 4 May 2017
which formed part of the settlement of the plaintiff’s claim;
(d) that the plaintiff appointed her current attorneys on 22 April 2022 when she signed a
power of attorney;
(e) that a combined summons was issued on 5 July 2022 and served on the RAF on 7
July 2022.
There is no doubt that the failure of the RAF to process a clai m to completion where it has
undertaken to do so, is to be deprecated in the strongest terms.
It is common cause that the claim was duly lodged w ithin the prescribed period of three
years. The exceptions contained in section 23(2)(a) (b) and (c) do not apply . The summons
was issued and ser ved outside the five year period (which expired in March 2021) . In Van
10 The plaintiff testified that it occurred on 22 March 2016 as stated in the particulars of claim. The pre -trial
minute records the date as 27 March 2016.
Zyl NO v Road Accident Fund 11 it was held with specific reference to the meaning of the
provisions of section 23 that:
“The opening words of this s ection read: “notwithstanding anything to t he contrary in
any law contained”. This plainly suggests that when enacting the RAF Act,
Parliament was aware of the existence of other laws which regulated prescription of
claims arising from motor vehicle accide nts like the Prescription Act. The purpose of
those opening words was to give pre -eminence to prescription imposed by section
23(1) which is subject only to the exceptions in subsections (2) and (3).
This means that section 23(1) supersedes all other laws which govern prescription of
the claims in question, even if those laws say something that contradicts what
section 23 stipulates with regard to prescription.”12
Prescription in terms of section 23 star ts to run from the date of the accident regardless of
provisions to the contrary in any other law. The Prescription Act13 that deals with
prescription generally , is not incorporated into the RAF Act through section 23 and does not
apply to matters governed by the RAF Act.14 It will be recalled that t he plaintiff testified that
the RAF has failed to inform her of the applicable period of prescription when her claim was
lodged and processed.
Much reliance was placed on the judgment in the Lottering case by the plaintiff. In that
case the RAF raised two special pleas. The first was that the plaintiff has failed to submit a
valid claim within three years and secondly, that summons was not issued within five years.
The plaintiff relied on section 12(3) of the Prescription Act in that when the plaintiff became
aware of the full particulars of her claim against the defendant she instituted action within
eight months of so learning. T he learned Judge dealt as follows with the second plea which
was based on the failure to comply with section 23( 3).15 The court followed the judgment in
11 [2021] ZACC 44 (19 November 2021).
12 Par 112-113.
13 Act 68 of 1969.
14 Road Accident Fund v Mdeyide 2011 (2) SA 2 (CC) par 50.
15 The learned Judge made no mention of the judgments of the Constitutional Court in Mdeyide and Van Zyl
NO.
Ralph v The Road Accident Fund 16 where Siwendu AJ (as she then was) in dismiss ing a
similar special plea , said with regard to the provisions of section 23:
“In my view, the consequences of the decision in Mdeyide is that where as in this
case, the defendant represents to claimant that it will assist in settling the claims
without external legal advice, a greater corresponding duty is created on the
defendant to take all reasonable steps to prevent claims prescribing in its hands.
Such reasona ble steps entail but are not limited to positively responding to the
claimant’s inquiries, b ringing the matter to finality, but also advis ing a claimant of the
date when a claim would prescribe. The right conferred by section 23 must be
counter balanced by efficiency on the part of the defendant.”17
Froneman J, in Road Accident Fund v Mdeyide18 in a minority judgment when dealing with
the constitutionality of section 23 acknowledged that:
“The Prescription Act, as the benchmark legislation for the operation of
prescription, requires knowledge, actual or reasonably deemed, as a necessary
precondition to enable someone to exercise their right of access to court. This is also
evident in various other laws and past decisions of this court . The object of this
requirement is aimed at preventing prescription running against a person who, by
reason of lack of knowledge and the inability to acquire it by the exercise of
reasonable care, is unable to institute action. Where knowledge is not expressly
recognised in this way, access to courts may also be preserved by providing courts
with the power to grant condonation in deserving cases.
The provisions of s 23(1) of the Road Accident Fund Act (RAF ACT) go against
this. It has no knowledge requirement and it does not provi de courts with the power
to grant condonation.”19
16 2014/ 03112 [2016] ZAGPJHC 94 (5 May 2016).
17 Par 15.
18 2011 (2) SA 26 (CC).
19 Par 103 -104.
The above statement is with equal force applicable to the provisions of section 23(3) . What
it means is that prescription starts to run when the cause of action arose .20 A court has no
power to grant condona tion for a late claim . The RAF Act makes no provision , in contrast to
the Prescription Act, for circumstances in terms wher eof prescription do not commence or
that prescription has been interrupted or has been delayed , except for the three instances
provid ed for in section 23(2) in respect of which prescription shall not run.21
The right of access to courts is no doubt an important right. It was held that the limitation of
the right to access to courts by section 23(1) , and by parity of reasoning also by section
23(3) , was held to be justifiable and reason able under section 36 of the Constitution.
The plaintiff instituted various claims based on contract to wh ich the provisions of 17 and
section 23 do not apply . I was called upon in the pleadings to concer n myself with a special
plea premised on the acceptance that the main claim was instituted in terms of section 17
which has prescribed in terms of section 23(3) of the RAF Act . Both the legal
representatives misconceived the basis of the claims in the part iculars of claim . Section 23
is not applicable to the claims instituted and should be dismissed on that basis .
The costs remain. The manner in which the litigation was conducted leaves much to be
desired . The rules were simply ignored. The impression gained was that non -compliance
with the rules and the practice of this court is not regarded with the seriousness expected
from practitioners . The direction issued by the court that the parties at the pre-trial should
deal with the issues relating to the speci al plea was simply ignore d. 22 Be that as it may,
after careful consideration of all the facts and the history of the case the court is of the view
that the plaintiff cannot be deprived of her costs.
ORDER
1. The special plea is dismissed .
20 Section 23 establishes prescription periods limited to claims under section 17 against the RAF or an agent
in respect of loss or damage a rising from the driving of a motor vehicle in the case where the identity of either
the driver or the owner thereof has been established.
21 Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) par 19 -20 and 47 -49.
22 Fn 7.
2. The defendant i s to pay the costs.
_______________________________
G.C MULLER
JUDGE OF THE HIGH COUR T
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE PLAINTIFF : ADV D. MASHAU
INSTRUCTED BY : MPHAHLELE M.R ATTORNEYS
FOR DEFENDANT : MR M.C MAFIRI
INSTRUCTED BY : STATE ATTORNEY, POLOKWANE